Complainant

Respondent

Parties

Denis  Lehane

Sse Airtricity Energy Services Ltd

Representatives

IBEC

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-00058705-001

07/09/2023

The Complainant stated that he was employed as an Energy Awareness Consultant by the Respondent and alleges that he was constructively dismissed on 6 April 2023. The Respondent stated that he was not an employee of theirs.

The Complainant stated that Climote Limited (the Agency) recruited him to work for the Respondent (the Hirer) on 18 May 2021. He asserted that his appointment email described that he was being employed on behalf of the Respondent.

It was explained to the Complainant when he started that the Respondent would provide full project management for the One Stop Shop (OSS) retrofit project and that delivery of the project was a two-stage strategy. Specifically, stage 1 was to be completed by him (the Complainant) in a 7-10 day timeframe when a homeowner committed to having their home upgraded and at which stage he received 50% of his agreed fee. Stage 2 was to be completed by the Respondent in 4-6 weeks, following which the Complainant would receive the remaining 50% of his fee.

The Complainant stated that he experienced significant frustration due to the Respondent’s delays in completing Stage 2 of the project however, which also caused financial hardship for him. Additionally, he was forced to manage increasingly irate customers and deal with repeated broken promises from the Respondent in respect of their completion of stage 2. This situation worsened in the months leading up to 6 April 2023, when the Complainant and his colleagues were informed that no new OSS would be introduced.

As a result of the Respondent’s conduct, the Complainant felt he had no choice but to terminate his employment.

The Respondent stated that the Complainant was never an employee of the Company. Specifically, it was asserted that the Complainant provided services to the Respondent as a contractor through a third-party service provider, Climote Limited. The Respondent had a contract for services with Climote Limited for the provision of a sales team and call centre function for their One Stop Shop retrofit campaign.

The Respondent also stated that they did not have any contractual arrangement or agreement with the Complainant, either express, implied, or otherwise and never paid any remuneration to him as this was the responsibility of the third-party service provider, Climote Limited.

Preliminary Matter:

Section 1 of the Unfair Dismissal Act states that an “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.”

Given that the Respondent in this case disputed that the Complainant was their employee, I must firstly examine whether he could be deemed to be an employee under section 1 of the Act as set out above.

In making this decision, I note that the Complainant accepted in his evidence that invoices from a limited company set up by him were submitted to Climote Limited in respect of work carried out by him, for which the limited company was paid.

I find that this decision to establish a limited company and invoice Climote Limited for work he did fatally undermines the Complainant’s claim that he was an employee of any company. This is consistent with the findings of the Labour Court in the matter of Joseph Dunne v Associated News Papers T/A DMG Limited (RPD 228).

Even if I found that he could be considered an employee, which as I have set out above I do not, I would also have to examine if the Complainant could be deemed to be an agency worker as he submitted and if the Respondent could be considered a “hirer”, as stipulated in the Act.

Specifically, section 13 of the Unfair Dismissal (Amendment Act), 1993, sets out 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”

The Respondent stated that they engaged Climote Limited as a provider of managed services and not as a provider of agency personnel and that, in any event, the latter company is not an employment agency within the meaning of the Employment Agency Act 1971 (‘the 1971 Act’) and does not hold a licence under that Act. It was also asserted that Climote Limited is not a “provider of agency work” within the meaning of section 2(5) of the Act. 

I also noted that the contractual documentation presented to me, which was not challenged by the Complainant, stated that Climote Ltd was contracted at all material times to provide a service to prospective customers of the Respondent.

Furthermore, the Respondent’s witnesses stated that Climote Ltd did not supply the Respondent with personnel to work under the latter’s supervision and direction. While the Complainant highlighted that he was instructed to inform prospective customers that he was calling them on behalf of the Respondent and not Climote Limited, I accept the evidence of the Respondent that such instructions are standard practice in industries where managed service providers are used to avoid confusing prospective customers.

While the Complainant also stated in evidence that he regularly interacted with the Respondent’s management team and utilised their internal systems—arguing this would indicate he was not employed by Climote Limited—I accept the Respondent’s evidence that such interactions are inevitable when a managed service provider is involved. Indeed, I find that it is practical for employees of both entities to interact and share internal systems for efficiency. I also noted that the Complainant accepted that if he ever had any HR issues, he sought advice from an employee of Climote Ltd and not the Respondent.

Considering all of the foregoing points, I find that the Respondent was not the Complainant’s employer and that I therefore do not have jurisdiction to hear this complaint.

I do not have jurisdiction to hear this complaint for the reasons set out above.