Worker

Employer

Anonymised Parties

A Worker

A Company

Representatives

Self-represented

 A&L Goodbody LLP

Act

Dispute Reference No.

Date of Receipt

Section 13 of the Industrial Relations Acts 1969

ADJ-00052082

CA-00063682

24/05/2024

The worker carried out duties on the company premises from 2nd April 2024 until 20th May 2024, the date she was dismissed. She had signed a contract to work for the named company for a fixed term from 2nd April 2024 to 2nd March 2025. Her dispute is that her employment was terminated without explanation and with no right of reply.

The company wrote to the WRC before the hearing stating that the worker was not an employee. The company also submitted that there was no “trade dispute”.

Without prejudice to the above, the company denies that the worker was unfairly dismissed. It was submitted that her contract was terminated due to performance issues and in accordance with the probationary clause.

The worker stated that she was interviewed by staff of the company. She became aware of this employment opportunity through an existing employee. She attended work for 6 weeks and 3 days at the company premises. She was trained by employees of the company. She was given no reasons or explanation for the termination of her employment. The termination meeting took place at the company premises. The worker said she did not receive any correspondence on her performance or conduct prior to the dismissal meeting.

The company representative submitted that the worker signed a contract with an agency. Her employment was terminated by the agency. The company wrote to the WRC prior to the hearing stating that that the worker was not their employee and she was at all times engaged by the agency. The letter also advised that the named company did not pay the worker nor did they terminate the contract as this was done by letter through the agency. The representative also submitted that there was no ‘trade dispute’.

The representative relied on the following cases in their submission. Grafton Recruitment v. A Worker, AD 1144, UCD v. A Worker LCR22741, An Electronic Assembly Operator v. A Manufacturing Company ADJ-00033119, and RT Training Research & Consulting Limited v. A Worker LCR 19143.

On the substantive dispute the case of O’Donovan v. Over-C Technology Limited [2021] IECA37 was relied upon.

After the first hearing, the representative made a further submission on the preliminary issues. Without prejudice, the submission also dealt with the termination and reasons for same.

It was submitted that the employment was terminated due to performance issues. The probation clause states that employment could be terminated for ‘any reason or no reason with one week’s notice’. The performance issues were outlined to the worker. Due to on-site regulations, the company carried out the training and induction. The termination took place at the company premises due to convenience.

Jurisdiction

The company was notified of the dispute by letter from the WRC on 6th June 2024. This letter afforded an opportunity to object to an investigation of the dispute by an Adjudication Officer. As there was no response, the consent to the investigation was assumed and the matter proceeded to an adjudication hearing.

The company representative and worker made written and oral submissions on the preliminary issues. The company representative submitted case law on relevant decisions and recommendations. I brought the parties attention to the recent Labour Court recommendation Department of Enterprise, Trade and Employment v 31 External Adjudicators LCR 23031 as this recommendation considered the broader definition of a worker in a trade dispute.

The Law on Worker Status   

A worker as defined by section 23 of the Industrial Relations Act 1990 is:

“…….any person aged 15 years or more who has entered into or works under, or, where the employment ceased, worked under, a contract with an employer, whether expressed or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or a contract personally to execute any work or labour including, in particular, a psychiatric nurse employed by a health board and any person designated for the time being under subsection (3) but does not include……’

Finding on Worker Status

I have reviewed the employment contract relied upon by the company that they are not the employer. Included in this contract is a table under the statement- ‘You are employed on a fixed-term basis on the terms and conditions as further set out in this agreement and in the below Table.’

The contract then states under ‘Duties’-

‘In addition with the duties set out with the client manager, the employee may from time to time be required to undertake additional or other duties as directed by the Employer or client manger.’

The table then outlines the contract conditions which include-

·       duties,

·       commencement/termination date,

·       the named employer,

·       the location,

·       normal working hours,

·       salary, notice of termination,

·       initial probationary period

·       annual leave.

On page 3 of the contract it states under ‘Position and Duties’-

‘It is acknowledged by you that over time, the specific requirements of your job may change and that you will carry out all reasonable requests of the Company and/or the Client.’

In Building and Allied Trades Union and Another v. The Labour Court and Others, [2005] IEHC, Murphy J. held that the term “worker” was wide enough to include the engagement of a person whether under a contract of service or a contract for service and can therefore include an individual sub-contractor. This case demonstrates the broad definition of worker in a trade dispute and refers to ‘…. a contract personally to execute any work or labour…..’ which indicates work personally performed.

I have considered the case law relied upon by the company representative including Grafton Recruitment v. A Worker, AD 1144 and UCD v. A Worker LCR22741. In these cases, there is no evidence of a contract outside of the agency contract, as in this case.  

As outlined, there are specific references in this contract which allow the company and agency to assign work as employers.

For the reasons outlined, I am satisfied that ‘worker status’ is established as per the industrial relations framework.

The Law on Trade Dispute

Under Section 3 of the Industrial Relations Act 1946, the definition of “trade dispute” is-

“trade dispute” means any dispute or difference between employers and workers or between workers and workers connected with the employment or no-employment, or the terms of employment, or with the conditions of employment, of any person and includes any such dispute or difference between employers and workers where the employment has ceased.

The inclusion in the contract of  ‘You are employed on a fixed-term basis on the terms and conditions as further set out in this agreement and in the below Table.’ indicates that the worker would personally be performing work (for the company) from 2nd April 2024 to 2nd March 2025. The broad definition of trade dispute therefore encompasses that there could be a dispute between the company and worker.

Although the company relies on An Electronic Assembly Operator v. A Manufacturing Company ADJ-00033119, where the end-user was incorrectly named as the employer, this case has different facts. Here, there was a standalone fixed term appointment for 11-months with specific terms in the contract as outlined.

In RT Training Research & Consulting Limited v. A Worker LCR 19143, 7th February 2008, the Labour Court held that a worker supplied by a recruitment agency was not covered as no employment relationship existed. If the worker did name the agency as her employer, she would have no practical recourse to resolve a ‘trade dispute’ as she worked at all times with the company. It was not possible for a trade dispute to arise with the agency as no working relationship existed.

When issues did arise in the company, there was no evidence presented that these were brought to the attention of the agency as they arose.

As the terms of the contract are vague, the agency and company can each claim not to be the employer for a ‘trade dispute’. In circumstances of no objection to the dispute being investigated by the WRC, and a wide definition of ‘worker’ and ‘trade dispute’, the legislature could not have intended for a dispute such as this to be evaded.

It is common case that it is often necessary to look at the employment relationship in practice to understand the true nature of the relationship.

The following operated in practice and is not contested-

·       The worker was at all times working for the company.

·       The worker was located on the company premises.

·       The worker was interviewed and trained by the staff of the company.

·       The worker was dismissed at the company premises.

·       Performance/conduct concerns as they allegedly arose were not brought to the attention of the agency.

In this case, the employment relationship was clearly with the company

Purpose of the Industrial Relation Acts

When a difficulty arises in the literal wording of legislation, it can be helpful to turn to the title and purpose of the Act.

The 1969 Industrial Relations Act states  ‘AN ACT TO AMEND AND EXTEND THE INDUSTRIAL RELATIONS ACT, 1946.

The 1946 Act states- ‘AN ACT TO MAKE FURTHER AND BETTER PROVISION FOR PROMOTING HARMONIOUS RELATIONS BETWEEN WORKERS AND THEIR EMPLOYERS AND FOR THIS PURPOSE TO ESTABLISH MACHINERY FOR REGULATING RATES OF REMUNERATION AND CONDITIONS OF EMPLOYMENT AND FOR THE PREVENTION AND SETTLEMENT OF TRADE DISPUTES, AND TO PROVIDE FOR CERTAIN OTHER MATTERS CONNECTED WITH THE MATTERS AFORESAID.

Although there is contention between the parties on the definition of ‘worker’ and ‘trade dispute’, the purpose of the Acts, as quoted, is for the settlement of trade disputes.

For the reasons outlined, I decide there is a valid trade dispute with the company.

I will now proceed to make a recommendation on the merits of the dispute.

Finding on Substantive Dispute

The Labour Court has consistently determined that workers are entitled to fair procedures prior to dismissal even during probationary periods. In Hamilton Insurance DAC v. A Worker LCR22710, the court stated-

‘It is the view of the Court that whenever a worker, including a worker who is on probation, is at risk of the loss of his or her job, it is incumbent on the employer to make the worker aware of the situation and of the reasons. In addition, where the issue arises from the conduct or performance of the worker, he or she should be afforded an opportunity to address the decision maker in his or her defence.’

In submissions at the hearing, the company representative outlined performance concerns as follows:

·       On 29th April 2024, a late attendance.

·       On 30th April 2024, a warning to wear PPE equipment.

·       On 30th April 2024, a warning not to wear airpods underneath company headphones.

·       On 3rd May, 2024, a warning on extended break times.

·       On 3rd May, 2024, a warning on skipping team meeting.

The above issues must have been documented within the company in order to be relied upon at the hearing. There was no evidence presented that these issues were documented to the worker, as they arose or subsequently.

There was only one contemporaneous document which was an email of 16th May 2024, sent from the supervisor to himself. This was not copied to the worker or the agency.

The worker received no correspondence on her performance or any concerns by the company. Consequently, she was had no opportunity to answer any concerns.

It is not the task of the Adjudicator to decide on the passing of probation, as this is a matter for the parties themselves. The task is to look at the procedures and manner of how a dismissal/termination was handled. The worker in this case was not afforded due process or fair procedures.

Although the company relies on O’Donovan v. Over-C Technology Limited [2021] IECA37 on the right to terminate without reasons, that case related to common law principles and not the statutory framework of industrial relations. The Labour Court has determined as per Hamilton Insurance that due process is required even during probation periods, in industrial relations disputes.

In deciding on an appropriate recommendation, the circumstances in Hamilton Insurance are similar to this case. The workers were not afforded the normal established procedures.

In this case, the worker sought re-instatement, re-engagement and compensation. I do not consider re-instatement or re-engagement as appropriate due to the breakdown of trust between the parties. Other factors to consider is that it was fixed term contract for 11-months and not a permanent role. It was also a difficult experience for the worker in her first job.

I recommend that the company pay the worker compensation of €7,500, in full and final settlement of the dispute. For clarity, this payment is compensation and is not related to earnings.

Dismissal, Due process