ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00047012

Parties:

Complaint:

Date of Adjudication Hearing:  05/03/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 andSection 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint  and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant submits that she was unfairly dismissed following an incident in work and when the Respondent cancelled her shifts without notice or due process.

Summary of Complainant’s Case:

The Complainant worked in the Respondent’s facility as an Agency worker from 26th December 2021 to 6th February 2023.  She was an experienced senior Care Assistant.  On 5th February 2023 she had a disagreement with some fulltime staff regarding treatment of one of the service users. Immediately following this, her shifts were cancelled without notice or opportunity to put her side of the story forward. She had gained alternative employment but was at a loss of some 11 shifts plus 7 weeks when she was out of employment.

Summary of Respondent’s Case:

The Respondent cancelled the Complainant’s shifts following an incident when she was involved in a heated argument with some staff in the facility.  At the time, the Respondent considered that as she was an Agency worker, she did not come under their remit in relation to conducting an enquiry or taking any action in relation to her.  However, it is now recognised that Section 13 of the Unfair Dismissals (Amendment) Act 1993 states:

“Where, whether before, on or after the commencement of this Act,  an individual agrees with another person, who is carrying on the business of an employment agency, within the meaning of the Employment Agency Act 1971, and is acting in the course of that business, to do or perform personally any work or service for a third person, (whether or not the third person is a party to the contract and whether or not the third person pays the wages or salary of the individual in respect of the work or service), then, for the purposes of the Principal Act, as respects a dismissal occurring after such commencement –

• (a) The individual shall be deemed to be an employee employed by the third person under a contract of employment”

In light of this, the Respondent accepts that it is in breach of the Unfair Dismissals Act and the only outstanding matter relates to loss of earnings.

Findings and Conclusions:

The Respondent has accepted that no due process was given to the Complainant in the situation where it believed it was not the employer.  I note the clarification provided.  I note that the Complainant was keen to put her side of the story and was not given an opportunity to do so.                         S.I. 146 of 2000 sets out the basic parameters for employees to be given due process and fair procedures when any disciplinary act is being considered by Employers.

I conclude that in the circumstances, the Complainant has been unfairly dismissed. In the situation where the working relationships have been fractured, and re-instatement or re-engagement are not appropriate remedies, I conclude that compensation is the appropriate remedy in this case.  Taking into account the losses incurred, I set this compensatory sum to be €10,325.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I have decided that the Complainant was unfairly dismissed by the Respondent.  I have decided that compensation is the appropriate remedy and I award the sum of €10,325 compensation to be paid to the Complainant by the Respondent.

Dated:   05-04-2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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