UDD248

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00027337 (CA-00034993-001)

BACKGROUND:

The Employer appealed the Decision of the Adjudication Officerto the Labour Court on 10 May 2023 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 14 February 2024. The following is the Decision of the Court:-

DECISION:

This matter comes before the Court as an appeal by Boston Scientific (the Appellant) against a decision of an Adjudication Officer in a complaint made under the Unfair Dismissals Act, 1977 (the Act) by Paul Sheehan (the Complainant).

The Adjudication Officer decided that the complaint was well founded.

The hearing

The Court received comprehensive written submissions from both parties in advance setting out their position on the substantive elements of the within appeal and also as regards a matter which had been raised at first instance as a preliminary matter. That preliminary matter was the Appellant’s contention that the Complainant lacked the requisite service of 12 months to maintain a complaint under the Act.

The Court heard the parties on all elements of the within appeal and invited the parties to tender sworn evidence at their volition. Both parties declined to put sworn evidence before the Court.

The Court decided, having heard the comprehensive written and oral submissions of the parties on all elements of the within appeal, to first determine the application of the law to the preliminary matter raised by the Appellant. That decision of the Court was based on the proposition that, if the Complainant lacked the service necessary to maintain a complaint under the Act, the Court’s decision on that matter could be dispositive of the entire matter.

Summary of the position of the Appellant in relation to the preliminary matter

The Appellant submitted that the Complainant commenced employment with the Appellant on 6th July 2019. He had previously been employed by Kelly Services Ltd, an Agency, assigned to the Appellant’s site as an agency worker from 24th July 2017. That employment terminated prior to 6th July 2019.

The employment of the Appellant was terminated by way of dismissal during his probationary period on 9th January 2020.

The Appellant submitted that notwithstanding the provisions of the Act at Section 13, whereby the Appellant was liable as the third party to whom he was assigned by his employer which was an employment agency, that section of the Act ceased to have application upon the termination of his employment as an agency worker. The Act at Section 13 could not have the effect of creating a continuity of service between the contract of employment in being between the Complainant and his previous employer which terminated on 5th July 2019 and the contract of employment with the Appellant signed by him on 4th July 2019 and which commenced on 6th July 2019.

The Respondent submitted that, by application of the Act at Section 2(1), the Appellant lacked the requisite service to maintain a complaint under the Act.

The Respondent submitted that the Appellant freely terminated his contract as an Agency worker with an employment agency. Consequently, having regard to Section 2(4) of the Act and Section 1(b) of the First Schedule to the Minimum Notice and Terms of Employment Act, 1973 (the Act of 1973), having voluntarily left his employment as an agency worker, he cannot be found to have maintained continuous service through the transition from his employment with the employment agency to his employment with the Respondent. No subsequent service with the Appellant can be regarded as continuous with his service with the employment agency.

The Appellant submitted that this Court, in Hewlett-Packard CDS Ireland Limited [UD/18/49] decided as follows:

“This provision, on plain reading, makes clear that an individual assigned by an employment agency to a third person, shall, as respects a dismissal, be deemed to be an employee employed by the third person under a contract of employment. It is equally clear that the section relates to a person who ‘is acting in the course of that business, to do or perform personally any work or service for a third person’. In the within matter the Appellant was not dismissed during the period of his contract with the employment agency or while he was ‘acting in the course of that business, to do or perform personally any work or service for a third person’. The Court finds that the provisions of Section 13 of the Act of 1993 ceased to have application to the Appellant upon the cessation of his contract with employment agency M.”

In that decision also the Court decided as follows:

“The purpose of Section 13 is to create certainty as regards liability and employment status for the purposes of the Act as respects a dismissal occurring while a person is employed by an employment agency and assigned to a third person. The section cannot be interpreted as having a general application for the purposes of computing service following the completion of the contract with the employment agency and in respect of a dismissal occurring during the currency of a subsequent fixed term contract of employment.”

The Appellant submitted that, having regard to the Court’s own jurisprudence as set out, it cannot be decided that the Complainant possessed the service necessary to maintain the within complaint under the Act.

Summary of the position of the Complainant in relation to the preliminary matter

The Complainant submitted that, pursuant to Section 13 of the Unfair Dismissals Act, 1977 as amended, an individual supplied by an employment agency within the meaning of the Employment Agency Act, 1971, and acting in the course of business is deemed to be an employee employed under a contract of employment by the third party user of the labour for the purposes of the Act and any redress under the 1977 Act shall be awarded against the third party.

Although the Complainant was no longer an agency worker at the time of his dismissal by the Appellant, section 13 of the Act is of importance when considering the issue of continuous service. Thus, it would be an anomaly if a new contract of employment entered into by the former agency worker and the Appellant ‘should render the clock for requisite service to start afresh’.

Section 13 of the Act overrides the presumption of a lack of continuity of service when the Complainant’s contract of employment with the agency terminated and a fresh contract of employment was entered into with the Appellant.

Discussion and conclusion

It is common case that the Complainant held a contract of employment with an employment agency from 26th July 2017 to 5th July 2019. During the currency of that contract the Complainant was placed with the Appellant by his employer, the agency. The Complainant’s contract with the employment agency ended on 5th July 2019 and he became an employee of the Appellant on 6th July 2019 under the terms of a contract of employment concluded between the Appellant and the Complainant on 6th July 2019.

The Complainant’s submission on the preliminary matter is that, by operation of Section 13 of the Unfair Dismissals (Amendment) Act, 1993 (the Act of 1993), the continuous service of the Complainant should, for the purposes of the Act, comprise both his service under his contract of employment with employment agency and his service in the direct employment of the Appellant.

The Act of 1993 at Section 13 provides as follows:

13.—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.

This provision, on plain reading, makes clear that an individual assigned by an employment agency to a third person, shall, as respects a dismissal, be deemed to be an employee employed by the third person under a contract of employment. It is equally clear that the section relates to a person who has agreed with another person ‘who is carrying on the business of an employment agency within the meaning of the Employment Agency Act, 1971, andis acting in the course of that business, to do or perform personally any work or service for a third person’. In the within matter the Complainant was not dismissed during the period of his contract of employment with the employment agency or while he was ‘acting in the course of that business, to do or perform personally any work or service for a third person’. The Court finds that the provisions of Section 13 of the Act of 1993 ceased to have application to the Appellant upon the cessation of his contract with employment agency.

The Appellant however seeks to rely on Section 13 to establish that, for the purposes of the Act, he had continuous service with the Respondent from 26th July 2017, the date of commencement of his employment with employment agency, until the date of his dismissal by the Respondent on 9th January 2020.

Section 13 of the Act of 1993 has, in the view of the Court, the purpose and effect of creating certainty as regards liability and employment status for the purposes of the Act as respects a dismissal occurring while a person is employed by an employment agency and assigned to a third person. The section cannot be interpreted as having a general application for the purposes of computing service following the termination of the contract with the employment agency and in respect of a dismissal occurring during the currency of a subsequent contract of employment with another employer and under another contract of employment.

The Act, at section 2(4), sets out that the period of service of an employee and whether that service had been continuous should be ascertained by application of the first schedule to the Minimum Notice and Terms of Employment Act, 1973 (the Act of 1973) as amended.

The first schedule to the Act of 1973, in relevant part, provides as follows:

1. The service of an employee in his employment shall be deemed to be continuous unless that service is terminated by—

(a) the dismissal of the employee by his employer, or

(b) the employee voluntarily leaving his employment.

                                ……….

(1)(6). The continuous service of an employee in his employment shall not be broken by the dismissal of the employee by his employer followed by the immediate re-employment of the employee. 

The Court finds that Section 13 of the Act does not operate to create continuity of service for the purposes of the Act for an employee of an employment agency who subsequently becomes an employee in the employment of an employer to whom he had previously been assigned.

Having reached this conclusion, the Court finds that, at the date of his dismissal by the Appellant, the Complainant had less than one year’s continuous service with the employer who dismissed him. Consequently, by operation of the Act at Section 2(1), the Appellant cannot maintain the within complaint under the Act.

Determination

The Court determines that the Complainant does not have the requisite service to maintain a complaint under the Act.

The appeal succeeds and the decision of the Adjudication Officer is set aside.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
CC	______________________
7 March 2024	Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ceola Cronin, Court Secretary.