INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969
- AND -
(REPRESENTED BY INDEPENDENT WORKERS UNION)
Chairman: Mr McGee
Employer Member: Mr Doherty
Worker Member: Mr Nash
1. Alleged Unfair Dismissal.
2. The dispute before the Court concerns a worker assigned to Tesco Ireland by Grafton Recruitment. The worker was assigned as a picker in a Tesco distribution centre in Tallaght.
The worker claims that while working with Tesco he continually questioned the level of wages and the high levels of picking rates expected from employees. The claimant organised industrial agitations in an effort to improve the wages and conditions, the worker also joined SIPTU at this time. Tesco referred the matter to Grafton Recruitment. Following discussions between Tesco, Grafton Recruitment and SIPTU, it was agreed that the worker should be re-located at the same rate of pay. The worker complained about this relocation and claims he was summarily dismissed as a result of his trade union activity. The worker is seeking compensation for the alleged unfair dismissal.
The company is disputing this on the basis that Grafton Recruitment were the employers and therefore Tesco did not have the power to assign or re-assign any agency worker. Furthermore the Company submit that the reality of the situation, that Grafton recruitment paid the worker, made necessary deductions, arranged holiday and sick leave and reserved the right to terminate an assignment without notice is clear evidence that Tesco were not the employers.
The worker referred his claim to the Labour Court on the 12th October, 2006 in accordance with Section 20(1) of the Industrial Relations Act, 1969 and agreed to be bound by the Court's recommendation. A Labour Court hearing took place on the 7th February, 2007.
1. It is the Union's contention that the worker was dismissed because of his trade union membership and activities.
2. The Union argues that it was therefore unfair and can be construed to be so under current Industrial legislation. The Union is seeking that its member be appropriately compensated.
1. The worker was not employed by Tesco and therefore he could not have been dismissed by the Company. Moreover he does not have the right under this Act to bring a claim against the Company.
2. The claimant was a temporary agency worker employed under contract by Grafton Recruitment as defined by the Industrial Relations Act, 1990. No contract of employment was entered into between Tesco and the claimant. Tesco's contract was with Grafton Recruitment and did not extend to individual workers.
3. The reality of the situation is that there is no integration of the claimant or any other temporary agency worker into the social, union or administrative functions of the business. It is immaterial to Tesco who is assigned by Grafton Recruitment to do the work on any given day and that the Agency can substitute the worker with any other agency worker at a moments notice without reference to the Company.
- The Court has considered the submissions made by the parties in this matter.
- While the Court is of the view that the history of this case reflects little credit on any of the directly or indirectly affected parties, it is a fact that the claimant had a grievance about his workload and /or his rate of pay. He chose to process this grievance in a manner which may have been more consistent with the culture from where he came (i.e. direct action) than in accordance with the accepted system here of contacting his Union representative and allowing the Union to make the case for him.
This led to dissatisfaction both on the part of Tesco and of the agency which was allegedly responsible for such matters and those concerned agency workers in Tesco, however it is clear Tesco definitely requested his removal.
The upshot of this was that he was offered alternative employment at an unaltered rate of pay.
The fact that he felt unable to accept this offer, and got no other offer until he got his P.45, does not constitute a dismissal.
Consequently, the Court cannot and does not recommend concession of the claim made on his behalf.
It is clear to the Court, however, that his work schedule was dictated on a day to day basis by Tesco, who made certain demands on him in regard to his workload. It was his protests about this, however unwise, which lead ultimately to his reassignment and ultimate departure from the employment agency. Bearing in mind the fact that it has been found under another Statute that he was not employed by the employment agency, Tesco must have at least some responsibility in the matter. The Court accordingly recommends that he be paid the sum of €500 by Tesco.
Signed on behalf of the Labour Court
Enquiries concerning this Recommendation should be addressed to Jackie Byrne, Court Secretary.