UDD2541

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00025586 (CA-00032412 -001)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 31 July 2024 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 07 October 2025.

The following is the Decision of the Court.

DECISION:

1Background to the Appeal

 This is an appeal by Ms Lynch (the Complainant) against Adjudication Officer’s Decision ADJ-00025586 CA-00032412-001 given under the Unfair Dismissals Acts 1977 to 2015 (the Act’s) in a claim against Health Services Executive (the Respondent) that she was unfairly dismissed. The Adjudication Officer held that her complaint was not well founded.

The complaint was lodged with the WRC on 22 November 2019, appealed to the Labour Court on 31 July 2024 and a hearing was held on 7 October 2025 in Galway.  Dismissal is in dispute.

2 Summary of Complainant’s submission

 Mr KIlraine BL submitted on behalf of the Complainant that she started work in the role of multi-task assistant on 15 March 2015. She was employed through Servi-source an Agency and worked 40 hours a week. From about 2015 onwards she was working in the HSE West Adult Acute Mental Health Unit (AAMHU). She remained working there until her dismissal on the 9 June 2019. The Complainant received no notice of dismissal and no right of appeal.

On 6 September 2017 the Assistant Director of Nursing Mr Begley wrote to her offering her a fixed term contract for one year as a direct employee of the Respondent.  Throughout her time working for the Respondent the Clinical Manager would advise of her hours.

Mr Kilraine BL submitted that under Section 13 of the Unfair Dismissals Act, the Respondent in this case falls to be deemed as the employer for the purpose of dismissal even though the Complainant was employed by an agency. Mr Kilraine BL opened Dacas v Brook Street Burea UK Ltd [2004] EWA Civ217 in support of his submission that the end user is the employer for the purpose of section 13 of the Act. He also opened to the Court Diago Global Supply v Mary Rooney [2004] ELR 133 where the Labour Court in that case held that the Respondent the end user was the employer for the purpose of the Act. It was Mr Kilraine’s submission that the withdrawal of work from the Agency by the HSE amounted to a dismissal within the meaning of the Acts.

3 Complainant’s evidence.

In her evidence the Complainant stated that the Clinical Nurse would assign her to a patient to work with. She worked 12-hour shifts. The Clinical Nurse would tell her what shifts were available and ask her what shifts she could work. She confirmed that on occasions if she had things to do, she would not take shifts.  Her work was appraised by HSE staff. It was her evidence that in respect of the offer of a one-year fixed term contract she had complied with all the requirements set out in the letter including the garda vetting. She followed up with Mr Begley a couple of times and he indicated it was being processed but she was never moved on to the contract. She confirmed that she would ring the agency and tell them what shifts she was booked for by the HSE. On 9 June 2019 she was in on a normal shift when Ms Rabbitte Assistant Director of Nursing came down to where she was working and said that she could go home as she was no longer needed. After that she contacted Ms Rabbitte to see why she was not getting any more shifts. The Complainant confirmed that her annual income at the time was €27,000. She had sought to mitigate her loss and after about nine months she set up a coffee van.

Under cross examination from Mr White solicitor on behalf of the Respondent she confirmed that her wages were paid by Servi-source and not the HSE. She accepted that there was communication between the HSE and Servi- source about her availability for shifts. The HSE would enquire with her about her availability then book her through the Agency. She confirmed that as far as she was concerned, she had completed all the forms the HSE needed for the fixed term contract including the Garda vetting. It was put to the Complainant that the HSE did not have any information about her application for Garda vetting. The Complainant stated that she filled in all the forms.

 After 9 June 2019 Servi-source offered her some shifts, but they weren’t in Galway city which was where she needed them. She confirmed that she turned down shifts in Clifden and Merlin Park and that she had previously done shifts in Merlin Park.  She also confirmed that she was offered a long-term role in St Annes but had declined same. In February 2020 her mandatory qualifications expired so she was not offered any further shifts with Servi source. She also confirmed that on June 9 other staff who were working for HSE through Servi- source were also sent home and not offered further shifts.

4 Summary of Respondents submission

Mr White on behalf of the Respondent submitted that the Complainant did not work for the Respondent and that section 13 of the Act does not apply.  The HSE did not dismiss the Complainant they ceased using the services of the agency that employed the Complainant, who continued to offer her shifts after the HSE contract had ceased.  The Respondent did indicate that although they were no longer booking Multitask Assistants from agencies, they did hope to run a recruitment drive in the future which she could apply for.  In respect of the earlier offer of a fixed term contract the paperwork in respect of that offer was never completed and the Complainant was not placed on a contract with the Respondent.  Mr White noted that the Complainant had not set out what her losses were or provided proof of mitigation.

5 Witnesses for the Respondent

 Mr James Begley

Mr Begley Assistant Director of Nursing in his evidence in chief addressed the letter of 6 September 2017 which was issued in the context of the HSE looking to convert agency staff to fixed term workers to save money on agency fees. He was aware of two people who were identified in the process the Complainant and one other.  The documents submitted by the Complainant in respect of the change from agency to fixed term worker went to HR and he had no role in the process; A dedicated member of HR is responsible for forwarding forms to Garda vetting. He left that post in February 2019 and to the best of his knowledge fixed term contracts were never issued to either party.  He confirmed that he was aware that the Complainant had a Fetec level 5 qualification but did not know what modules she had completed. He also confirmed that he had conversations with the Complainant about how slow the recruitment process was as Occupational Health reports and Garda vetting could take some time.

Under cross examination from Mr Kilraine BL the witness confirmed that he had no knowledge of why the proceedings were delayed or why it was not processed to conclusion.

Ms Catherine Rabbitte

Ms Rabbitte told the Court that in June 2019 she was in an acting ADON role.  The Complainant was allocated hours if there was a deficit in the roster. It was her job to speak to the Agency and the staff member to see if they were available and if they were she would book them through the Agency. The witness confirmed that she had no knowledge of a fixed term contract. She stated that she had no recollection of 9 June 2019 specifically. At a meeting she attended it was brought up that the service needed to be brought back within budget and approval for the use of Agency Multitask Assistants was withdrawn from 1 June 2019. A service user needs review was carried out and the service user the Complainant worked with was deemed to no longer need accompaniment. Ms Rabbitte stated that she was not sure when the agency was informed of the decision.

Under cross examination she confirmed that she had worked with the Complainant since 2015. She booked her services on an if and when needed basis. She stated that she was not sure if the Complainant worked 36 or 39 hours per week. She confirmed she was aware that the Complainant and one other colleague were under consideration for a one-year fixed term contract. When she took over in February 2019, she did not follow up on this as it was with HR. In respect of the 9 June 2019, it was her evidence that she cannot recall if she told the Complainant to go home as she cannot recall the conversation.

Ms Mc Cabe

Ms Mc Cabe confirmed that she was a Senior Manager in Servi-source which is part of the CPL group. She confirmed that she is only in role since May 2021 and was not employed at the relevant time but that she had reviewed the records and internal files from that period. It was her evidence that based on those records there were several assignments post 9 June 2019 that the Complainant could have taken up but did not. The records showed that she had taken up an assignment on 27 June 2019 but was a no show on the day.    On 5 and 6 August 2019 she had accepted assignments and later cancelled them. Further shifts were accepted late October/ November 2019 but she was unable to take up those shifts as she had accepted another job. She remained on their system until February 2020 at which point she moved to inactive because some mandatory training had expired. They had no further contact from her after February 2020.

Under cross examination the witness set out how work was assigned, Shifts were posted centrally, and individuals would indicate if they were available to do the shift.

6 Relevant Law

Section 1 of the Act defines dismissal in the following manner

Section 13 of the Unfair Dismissals (Amendment) Act 1993 states

• - 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 works 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.

7 Discussion and Decision

 It is not disputed that the HSE ceased its contract with Servi-source for multitask attendants in June 2019 and the Complainant was one of a number of people who were impacted by this decision.  Nor is it disputed that Servi-source continued to make work available to the Complainant albeit in different locations and that she on some occasions accepted that work and on other occasions declined the work. In order for Section 13 of the Unfair Dismissals (Amendment) Act 1993, as cited above to come into consideration a dismissal must have occurred. The Complainant accepted that work continued to be available to her from Servi-source until February 2020 when her mandatory training expired.  Taking these facts into account, the Court determines that no dismissal occurred and therefore her complaint must fail.

The appeal fails. The decision of the Adjudication Officer is upheld.

 The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
AR	______________________
27 November 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Mr Aidan Ralph, Court Secretary.