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UDD2240

FULL RECOMMENDATION

UD/21/41
ADJ-00026436 CA-00033762-001

DETERMINATION NO. UDD2240

SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015

PARTIES :

TEAM OBAIR RECRUITMENT

- AND -

MR NIGEL MILLER
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)

DIVISION :

Chairman:	Ms Connolly
Employer Member:	Ms Doyle
Worker Member:	Ms Treacy

SUBJECT:

1. Appeal Of Adjudication Officer Decision No ADJ-00026436.

BACKGROUND:

2. The Employee appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing in a virtual setting took place on 26 January 2022. The following is the Determination of the Court.

DETERMINATION :

This is an appeal by Mr Nigel Miller from a decision of an Adjudicator Officer (ADJ-00026436) dated 09 July 2021 under the Unfair Dismissals Act 1977 |(the Act).

The Adjudicator Officer found that this appeal was linked to another appeal (ADJ-00028639). He decided that Nigel Miller did not have the required service to bring a claim under the Unfair Dismissals Act and, therefore, that his claim of constructive dismissal was not well founded.

A Notice of Appeal was received by the Labour Court on 27 July 2021 and a remote hearing conducted on 26 January 2022.

Preliminary Matter - Does the Court have jurisdiction to hear the case?

At the outset of the hearing, the Court requested that both parties set out their positions in respect of the application of Section 13 of the Unfair Dismissals (Amendment) Act, 1993, as they relate to the facts of this case, and to address whether or not the Court had jurisdiction to proceed to hear the appeal.

The matter of jurisdiction relating to the applicability Section 13 of the Unfair Dismissals (Amendment) Act, 1993 was referenced by both parties in their submissions to the Court, although this matter was not raised before the Adjudication Officer. The matter on appeal before the Court is a de novo hearing of the case, and the question of jurisdiction is determinative of whether the Court can proceed to hear the appeal. The Court advised the parties that it would decide on this preliminary matter, before proceeding to hear any other preliminary or substantive matters.

Respondent Submission on Preliminary Matter:

The Respondent submitted that under the Unfair Dismissals Acts, the end user is the client, which in the case of the Complainant was STL Logistics and not the Respondent. Therefore, the Respondent had no case to answer under the Act.

Complainant Submission on Preliminary Matter:

SIPTU, on behalf of the Complainant, submitted that two complaints of unfair dismissal were lodged by the Complainant under the Unfair Dismissals Acts in relation to the termination of his employment as an agency worker. A complaint was lodged against STL Logistics, who was the ‘the hirer’ or ‘third person’ in line with section 13 of the Unfair Dismissals (Amendment) Act 1993. However, a claim of unfair dismissal was also lodged against the employment agency, as an alternative claim, in the event that the Court should find that it was the Agency’s actions that caused the fundamental breach of the Complainant’s employment contract and/or that the Agency was the correct ‘employer’ for the purpose of this claim.

The Relevant Law:

Section 13 of the Unfair Dismissals (Amendment) Act, 1993 provides as follows:

“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.”

Deliberation and Findings:

It is accepted by both parties that the Complainant worked at a third-party site as an agency worker and the issue of the status of the Complainant was not in dispute.

It is well established in law that, even though an employment agency may be deemed to be the "employer" of any agency worker for other employment rights enactments, where an agency worker's assignment is terminated, his or her remedy for unfair dismissal (if any) will be against the hirer, not the employment agency.

The Unfair Dismissals (Amendment) Act 1993, at section 13, provides clearly and unequivocally that in any proceedings under the Unfair Dismissals Acts, an agency worker is deemed to be employed by the hirer, as opposed to the employment agency. As the hirer is the employer for the purposes of that Act, any liability under the Unfair Dismissals Acts rests with that employer.

In the circumstances of this case, the Court finds that the Complainant was an agency worker assigned to a third party, STL Logistic. On this basis, the Court finds that the Complainant does not have locus standi to maintain his claim of unfair dismissal under the Acts against the Respondent, which is an employment agency.

Therefore, the Court finds that the Complainant’s appeal on this issue fails. The Adjudication Officer’s decision is varied accordingly.

The Court so Determines.

	Signed on behalf of the Labour Court

	Katie Connolly
SL	______________________
27 June 2022	Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Shane Lyons, Court Secretary.