Complainant

Respondent

Parties

Roberto  Resende

PharmEng Limited

Complainant

Respondent

Anonymised Parties

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Representatives

  Self-Represented

Aoife Walsh, TSA Consultants

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act 1977

CA-00058851-001

15/09/2023

The Complainant referred a complaint to the Workplace Relations Commission (hereinafter referred to as “the WRC”) on the 15th September 2023 wherein he claimed that he was unfairly dismissed. The Respondent denied the complaint in its entirety. The Respondent further submitted that it is an employment agency and that it is not the employer of the Complainant for the purposes of the unfair dismissal complaint.

The Complainant gave evidence that his contract of employment was with the Respondent and that was the basis for naming the Respondent on the WRC complaint form. His contract of employment set out his salary, the duration of the contract and referenced the fact that he worked on a day-to-day basis for the third person. He worked two days on site and three days remotely, he reported and took directions from management of the third person and all of the work he performed was for the third person. The Complainant accepted that the Respondent was an employment agency but stated that he was not aware of the MSP or that the third person had any responsibility for his contract.

The decision to terminate his employment was made by the third person and it was communicated to him by the Respondent. He was given no forewarning that he was at risk of his employment being terminated, he was given no reasons for his dismissal and he was not afforded fair procedures.

The Respondent submitted that it is a licenced employment agency registered with the WRC and that it was not the Complainant’s employer for the purposes of the Unfair Dismissals Act 1977, as amended. In this regard, the Respondent sought to rely on section 13 of the Unfair Dismissals (Amendment) Act 1993.

The Respondent referred to previous WRC decisions, namely ADJ-00019796, ADJ-00032076 and ADJ-00032108 and submitted that the Respondent employment agency is not the correct respondent for the unfair dismissal complaint, as per section 13 of the Unfair Dismissals (Amendment) Act 1993.

The Respondent’s Director stated that he had sympathy for the Complainant and he noted the Complainant’s disappointment with the third person, however, the Respondent could not give first hand evidence as to how the Complainant was treated by the third person or the circumstances giving rise to the termination of the Complainant’s employment with the third person. All aspects of the contract including the salary, the duration, any extensions and any other directions were dictated by the third person and were communicated by the third person to the MSP and by the MSP to the Respondent. The Respondent had no direct contact with the third person and it had no involvement with or influence over the decisions made by the third person.

In making these findings, I have considered the documentation submitted by the parties, the oral evidence adduced at the hearing summarised above and the oral and written submissions made by and on behalf of the parties at the hearing.

By way of preliminary issue the Respondent submitted that it is an employment agency and that it is not the employer of the Complainant for the purposes of the unfair dismissal complaint.

The Law:

Section 13 of the Unfair Dismissal (Amendment) Act 1993 (hereinafter referred to as “the 1993 Amendment Act”) provides that for the purposes of the unfair dismissal legislation, the hirer will be deemed to be the agency worker’s employer and is the correct Respondent in any claim for unfair dismissal.

Section 13 the 1993 Amendment Act provides as follows:

“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,

(b) if the contract was made before such commencement, it shall be deemed to have been made upon such commencement, and

(c) any redress under the Principal Act for unfair dismissal of the individual under the contract shall be awarded against the third person.”

I found the Complainant to a credible witness with a genuine grievance with the manner in which his employment with the third person was terminated. Equally, the Respondent’s witnesses gave credible evidence of the relationship between the parties involved in the engagement of the Complainant, namely the Complainant, the Respondent, the MSP and the third person. The Respondent’s Director accepted that it had entered into a contract of employment with the Complainant and he noted the Complainant’s disappointment with the manner in which he was treated by the third person. I found the sympathy he expressed for the Complainant to be genuine and I accept that the Respondent could not give first hand evidence as to how the Complainant was treated by the third person or the circumstances giving rise to the termination of the Complainant’s employment with the third person.  

Having carried out my own investigations I am satisfied that the Respondent is a Licenced Agency registered with the WRC and appears on the List of Licensed Employment Agencies. The Licence is awarded by the Minister for Enterprise, Trade & Employment, pursuant to the Employment Agency Act 1971 and was provided to the Respondent in its capacity as an employment agency.

Taking into consideration the written and oral submissions and the evidence of the parties I am satisfied that the Respondent is an employment agency and that it was not the Complainant’s employer for the purposes of the Unfair Dismissals Act 1977, as amended. In the circumstances, I find that the Complainant was not unfairly dismissed by the Respondent and the complaint is not well founded.

For the reasons set out above, I find that the Complainant was not unfairly dismissed by the Respondent and I decide that the complaint is not well founded.