Worker

Employer

Anonymised Parties

A Worker

An Employer

Representatives

  Appeared In Person

Jessica O’ Mullane , IBEC Executive

Act

Dispute Reference No.

ADJ 46507

Date of Receipt

 Section 13 of the Industrial Relations Act, 1969

CA-00057354-001

26 June 2023

On 26 June 2023, the Worker in the case submitted a dispute that she had been unfairly dismissed. As she did not have the requisite service to run her claim, her complainant was submitted under Section 13 of the Industrial Relations Act, 1969.

The Worker was welcomed in presenting her own case and in furnishing her prepared submission.

The Employer in the case is an Employment Agency and has disputed the claim. The Employer is represented by IBEC and was equally welcomed to the case.

Both parties attended the hearing on 8 December 2023.

Further clarification was sought from the Employer post hearing. Once received, it was shared with the Worker for comment.

The Worker commenced work as a remote worker with the Employers Client, Company A on 16 October 2022 on a full-time basis. There was a five-week period of training followed by a customer service role from 14 November 2022.

Her job was titled Spanish Support Specialist / Travel and Sales guide.

The Worker acknowledged that she struggled to reach the targets set for her in the low season. The Worker recalled that she felt isolated as a home worker. A buddy system was activated but the worker viewed this as inadequate for her needs. She was placed on a performance improvement plan. The Worker contended that she was not recognised as a human being in the job.

The Worker experienced a person bereavement around Christmas 2022. The Worker sought medical help and was advised to take sick leave from 13 January 2023.

The case she has brought to the WRC was that on 16 January 2023, while she was on sick leave, she received a letter of dismissal on grounds of redundancy “out of the blue “. The Medical

The Worker argued that she was terminated prematurely, unfairly and without being given a chance to reach the standard required.

The Worker sought to be heard on her case and to be awarded compensation for her bad experience and not having found new work from 3 February 2023.

I had some concerns on the workers recollection of the conversation which led to her redundancy in January 2023, and I requested the Employer to seek to bridge that gap from their records.

The Employers Operations Manager forwarded a letter of clarification from leave, which was shared with the Worker for comment.

The Worker took issue with this clarification but also detailed a response that I had not canvassed.

The Employer operates a Recruitment Agency which provides a broad range of staffing to many large clients through the assignment of temporary agency workers and managed services.

The Worker was paid by the Employer but based at a client site as a remote worker on a fixed term contract from 10 October 2022 to 3 February 2023.

The worker was provided with a contract of employment of 23-month fixed term status. Her role, a Spanish speaking Travel and Sales Guide.

On 20 December 2022, the Employer informed the client of an imminent rate increase from January 1, 2023.

“Therefore, the new margin (payroller and sourced) will increase respectively from 7.5% and 12.5% to 10.5% and 15.5% effective 1 January 2023”.

This prompted the client to notify the employer of their intention to exit the contract on 3 February 2023.

There was a parallel offer to accommodate direct employment for most of the Guides with the client, with a requirement for just one Spanish speaking guide.

On 13 January 2023, the Employer began to seek out the worker to discuss implications for the change in the business model.

The Employer Operations Manager updated the worker on developments, which included a confirmation that one Spanish speaking travel guide was required.

The Worker was informed that the Employer was using Last In first out (LIFO) as a means of selection on identifying who should be exited. She was not last in.

The Employer offered the worker an opportunity to remain on the database if alternative opportunities arose. Nothing did arise as the majority of client sites are in other areas. There was no suitable alternative available.

The Employer confirmed the redundancy by way of letter dated 16 January 2023. The Employer contended that this was a genuine redundancy, outlined verbally and in writing and was not related to “personal or professional circumstances related to the worker “

There was simply no scope for the worker to achieve direct employment with the client at that time. The Spanish guide who transferred to direct employment had been hired on 1 April 2021.

The worker had not activated a grievance during her tenure.

The Employer relied on a quote from the field staff booklet:

“In cases where a major client assignment ends which has implications for all staff working on that contract X will continue to seek alternative employment opportunities for you where possible. We will explore all potential options but, in the event that no suitable opportunities can be found, this may lead to notice being given and termination payments being made, where applicable “

The Employer confirmed that they had not offered an appeal of the decision to make the worker redundancy.

The Employer also contended that the redundancy stood alone and was not linked in any way to the workers stated difficulties in her role. They were clear that the worker had not shared her difficulties in adjusting on the client site with the respondent during her tenure.

I needed some further clarity on what occurred at the discussion on the business change and the redundancy which followed.

The Operations Manager who conducted this discussion was on leave. I asked if there was any record of follow up to a particular email dated the 13 January from the employer submission?

Ms O’ Mullane kindly offered to try and bridge that gap and I was grateful to receive a letter of clarification from the Operations Manager in mid-December 2023, which was promptly shared with the worker.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

In this case, I have also had regard for the letter of clarification from the Operations Manager. I am grateful for her input albeit while on leave.

This is case taken under Section 13 of the Industrial Relations Act, 1969 rather than Section 6 of the Unfair Dismissals Act 1977 as the workers service record was insufficient on which she could ground a claim for statutory unfair dismissal.

Section 13 of the Industrial Relations Act, 1969 provides for an opportunity to resolve disputes and for me to make a Recommendation If I find merit in that dispute.

It is most suitable for resolving a live dispute in a live employment relationship.

On this occasion the employment ended on 3 February 2023 on one weeks pay in lieu of notice.

The Worker in this case was an Agency worked placed on a client site, yet as a remote worker.

She was faced with a triangular employment.

A The Worker / employee

 in accordance with the Protection of Employees Temporary Agency Work Act 2012

“Agency worker” means an individual employed by an employment agency under a contract of employment by virtue of which the individual may be assigned to work for, and under the direction and supervision of, a person other than the employment agency.

B The Employer / The Agency

employer” means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works (or, where the employment has ceased, entered into, or worked) under a contract of employment.

“Employment agency” means a person (including a temporary work agency) engaged in an economic activity who employs an individual under a contract of employment by virtue of which the individual may be assigned to work for, and under the direction and supervision of, a person other than the first-mentioned person.

C The Client / Hirer

“hirer” means a person engaged in an economic activity for whom, and under the direction and supervision of whom, an agency worker carries out work pursuant to an agreement (whether in writing or not) between the employment agency by whom the agency worker is employed and the first-mentioned person or any other person;

The Employer has set out circumstances where a price hike in the service level agreement between the Agency and the Hirer (the client) prompted a radical change in the business model which led to notification of the worker as the sole redundancy.

My attention was drawn to the contract of employment, issued by the Employer, which bound the worker to the Employer and the Client, yet there was no reference to the Protection of Employees Temporary Agency Work Act 2012 and the protections that flow from this.

For example, Section 11 of the Act obliges the hirer to notify the Agency Worker of vacancies.

Access to employment by hirer.

11.— A hirer shall, when informing his or her employees of any vacant position of employment with the hirer, also inform any agency worker for the time being assigned to work for the hirer of that vacant position for the purpose of enabling the agency worker to apply for that position.

The issue that has emerged very quickly in this case is that the worker was unaware of the complicated triangular employment relationship she had entered in October 2022.

This was not remedied by the employer’s contract but most important, it was unclear who was managing the workers performance on the hirer site and whether the employer in this case was populating an overall probation report, inclusive of the PIP?

Given the intricacies of the triangular employment relationship, the worker should have been provided with a probation report to help her navigate through her probation.

I can accept that the worker was very unhappy at work and that seemed to become worse in a work from home setting. She was new and hadn’t yet discovered a hybrid work environment where she may have felt more supported.

I accept the Employers strong contention that the worker did not activate a call for help or support from the employer. It was very clear to me that she did not understand the pathway to support and suffered alone. This was compounded by her personal bereavement and subsequent sick leave in January 2023.

I am not writing today under any statutory framework, but rather under the umbrella of was what happened to the worker within the parameters of fairness and reasonableness in an Industrial Relations setting.?

1 I found a lack of clarity in the contract of employment as it did not embrace the overarching Agency Legislation. The rationale behind the 23-month duration of the contract was not explained.

2 The Worker was not provided with a probation report within the first 3 months of her employment. This may have helped her to understand her position more. I accept she was on a PIP at the time the business model changed. I would have liked to have seen a stronger tri partite collaboration between worker/employer and hirer.

3 I accept that the Service Level Agreement ceased between the Employer and Hirer in January 2023, and this was explained to the Worker, who requested to be maintained on the data base. This was permitted.

4 I cannot fix the omission of the Hirer to the Employer on announcement of vacancies; however, I note that the vacancies announced by the Hirer to the Employer were not made known to the worker in this case. There is no live claim under the Agency legislation.

5 The Employer did not exhibit a collective agreement on LIFO.

6 However, I found that the employer strayed outside fairness and reasonableness by not honouring the “lay off “clause in their own contract of employment.

The organisation reserves the right to lay you off from work or reduce your working hours where, through circumstances beyond its control, it is unable to maintain you in employment or maintain you in full-time employment. You will receive as much notice as is reasonably possible prior to such lay off or short time. No payment will be made for any period of layoff. Payment will only be made for hours worked during any period of short time.

I understand that the Employers position has centred on there was no suitable alternative employment immediately available for the worker .

However, by not exercising the lay off clause of the contract, I find the rush to terminating through redundancy from which a lump sum payment in redundancy did not arise was premature and thus unfair.

I have found some merit in the dispute.

Circumstances surrounding a Dismissal of an Agency worker through redundancy