Complainant

Respondent

Parties

Victor  Ogiemudia

Tesco Ireland Limited

Complainant

Respondent

 Parties

Victor Ogiemudia

Tesco Ireland

Representatives

  self

James Cleary IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00060098-001

17/11/2023

The Complainant worked for a security Company called OCS Limited. He in turn was placed in TESCO stores to work as a security guard. He commenced this assignment with TESCO on or about August 2020 and arising from a TESCO store manager requesting that he be moved the consequence was a lengthy lay off until OCS Ltd could find an alternative role. The Respondent requested to make a preliminary submission stating that the matter is not properly before the Workplace Relations Commission as OCS Limited did not provide TESCO with an employee and/or agency worker and is not an Employment Agency registered to do so. It does provide security services; however, that contract is not an Agency contract rather a managed service contract. The Respondent is a stranger to the complaint and the Complainant is not an employee of TESCO Ireland Limited.

The Respondent relies on the following to argue that the Complainant is not an Agency employee and/or an employee of TESCO.

The Respondent would draw the AOs attention to Tesco Ireland Ltd v Marek Pawlisiak ADE/16/66 where the same set of facts apply and are relevant to the instant matter. In its findings the Court (Labour Court) noted that it “is very familiar with the distinction between a provider of agency personnel and a provider of managed services. Neither the 1971 Act nor the 2012 Act applies to a business the operations of which come within the latter category. Both Acts apply exclusively to the former type of business. Noonan Services Group Limited is of the latter type. In the context of the factual background to this case, Noonan Services Group Limited was contracted at all material times to provide security services at the Respondent’s stores throughout the country. It did not supply the Respondent with personnel to work under the latter’s supervision and direction. It follows, therefore, that the Complainant’s claims against the Respondent under the 1998 Act are not well-founded as the Respondent was at no stage his employer for the purposes of that Act.

The Complainant worked for a security Company called OCS Limited. He in turn was placed in TESCO stores to work as a security guard. He commenced this assignment with TESCO on or about August 2020 and arising from a TESCO store manager requesting that he be moved the consequence was a lengthy lay off until OCS Ltd could find an alternative role.

The Complaint is misconceived as the Complainant is not an employee of TESCO Ireland Limited; he is an employee of OCS Limited a company that provide security services to the Respondent.

On the facts the Complainant is not an employee of the Respondent.

The Act defines an employee and an employer:

“employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment and, in relation to redress for a dismissal under this Act, includes, in the case of the death of the employee concerned at any time following the dismissal, his personal representative;

“employer”, in relation to an employee, means the person by whom the employee is (or, in a case where the employment has ceased, was) employed under a contract of employment and an individual in the service of a local authority for the purposes of the[Local Government Act 2001 (as amended by the Local Government Reform Act 2014)], shall be deemed to be employed by the local authority;

The Complainant continues to work with OCS limited.

It does appear that he was placed on layoff for several months; however, his contract of employment was with OCS limited.

There is no evidence before me that his employment was terminated by OCS limited and TESCO on the facts are a stranger to this complaint.

Dismissal under the Act is defined as:

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;

I find that I have no jurisdiction to hear this complaint as no termination of employment has occurred and the Complainant is not an employee of TESCO Ireland Limited. In fact, the employee continues to work for OCS Limited.

The Complainant continues to work with OCS limited.

It does appear that he was placed on layoff for several months; however, his contract of employment was with OCS limited.

There is no evidence before me that his employment was terminated by OCS limited and TESCO on the facts are a stranger to this complaint.

I find that I have no jurisdiction to hear this complaint as no termination of employment has occurred and the Complainant is not an employee of TESCO Ireland Limited.

I have determined that the complaint is misconceived and by that is meant:

(These are legal technical terms and as explained Delaney and McGrath on Civil Procedure 4th Edition 2018 mean:)

The meaning of the words “frivolous or vexatious” as used in the context of s.10(1)(b)(ii) of the Data Protection Act 1988 as amended was considered by Birmingham J in Nowak v Data Protection Commissioner,28 where he stated that “frivolous, in this context does not mean only foolish or silly, but rather a complaint that was futile, or misconceived or hopeless in the sense that it was incapable of achieving the desired outcome.” This description was referred to by Irvine J in her judgment in the Court of Appeal in Fox v McDonald,29 where she stated that “the word ‘frivolous’ when used in the context of O. 19 r, 28 is usually deployed to describe proceedings which the court feels compelled to terminate because their continued existence cannot be justified having regard to the relevant circumstance.”

I determine I have not jurisdiction to hear this complaint.

misconceived