EMPLOYMENT APPEALS TRIBUNAL
Rafal Gowin UD558/2014
Ryanair Limited T/A Ryanair
MK Human Resources Limited, t/a Temple Recruitment
UNFAIR DISMISSALS ACTS 1977 TO 2007
MK Human Resources Limited, t/a Temple Recruitment
REDUNDANCY PAYMENTS ACTS 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath B.L.
Members: Mr. J. O'Neill
Mr F. Keoghan
heard this claim at Dublin on 19th March 2015
Claimants: Mr Eamonn O'Hanrahan, O'Hanrahan & Co, Solicitors, 31 Fairview Strand, Fairview, Dublin 3
Respondent: Mr Killian O'Reilly, McDowell Purcell, Solicitors, The Capel Building, Mary's Abbey, Capel Street, Dublin 7
The parties came before the Tribunal on the 19th March 2015. At the Tribunals suggestion, the parties agreed that the matter would proceed on the basis of only one of the 8 claimants giving evidence. The Tribunal indicated it would issue a determination in respect of that one claimant (RG, as it was subsequently decided) and that the parties could, on foot of that determination decide how they would proceed in respect of the remaining seven claimants.
The Tribunal acknowledges that this determination is not intended to be coercive and can only be an indication to the remaining seven claimants as to what the outcome of their own cases might be.
The claimant’s representation selected RG to give evidence and the Tribunal heard all the relevant evidence in connection with RG’s various applications which came before the Tribunal. RG’s claims are threefold.
1 The claimant brings two separate claims for unfair dismissal – one against MK (dated 18th April 2014 ) and one against RA (dated 17th January 2014).
2. The claimant additionally brings a claim for redundancy against MK.
3. The claimant is also resisting an appeal brought by MK against a Rights Commissioner decision dated 26th August 2014 wherein the employer was directed to pay to the claimant the sum of €1,326.00 under the Payment of Wages Act, 1991.
The Tribunal heard evidence on behalf of the claimant himself and was also given the opportunity to hear a Ms GD on behalf of MK and a Mr CD on behalf of RA. All the witnesses were sworn in, and evidence was tested by way of cross-examination. The Tribunal were asked to consider some pertinent documentation in support of each of the parties positions.
In concluding the oral evidence, the legal representatives sought and were given an opportunity to present written submissions. This request was acceded to and the respondents submissions were made available on the 8th April 2015 and the claimants becoming available from the 16th April 2015.
Following a consultation between the Tribunal members, it was decided that a copy of the days transcript would be required in circumstances where same was relied upon so heavily in the respondent’s submissions. A copy of same did arrive with the Tribunal in due course. The Tribunal met again and having considered everything before it, the Tribunal was able to make the following determination.
The claimant, RG commenced working as a ground handling agent or more specifically a ramp agent with RA from the 10th October 2007. The Tribunal accepts as a matter of fact that the claimant was employed by MK as an agent and had up to the termination of his employment been outsourced exclusively as a “ramp agent” to RA. The claimants status as an agency worker never changed and it seems that for him(as with many agency workers) this meant the familiar pattern of turning up for work to the same place for 5or 6 years was always going to be subject to fluctuation and change as the end users requirements changed.
Chronologically the first important event the Tribunal must look at is the signing of the contract for service for temporary workers dated May 20th 2011. This document came into being as part of a TUPE process and contains the contractual agreement that existed between the claimant and his employer, MK. The contract is unambiguous insofar as the employer will endeavour to obtain work as a ramp agent for the claimant but that the parties will agree that it is accepted that there will be periods when no suitable work will be available. There is scope within the contract to provide suitable work in categories other than that specified, namely ramp agent.
The Tribunal heard evidence to the effect that the contract in question is typical of agency/temporary contracts and whilst the Tribunal must accept the fact that this is the commercial norm the contract is heavily weighted against the individual and in particular the Tribunal must question the assertion that the specific standard hourly rate (in this case €10.20p.h) was not a guaranteed figure and was subject to change. No reading of the contract of the 20th May 2011 can possibly be interpreted as allowing for a unilateral deduction of the minimum hourly rate as outlined and signed up to by both parties. Therefore, whilst the Tribunal might accept that there is no obligation to find like or identical work(taking into account the mutuality of obligation argument) the Tribunal cannot ignore the contractual agreement to pay a particular rate per hour.
It is of some concern to the Tribunal that the contract agreement between the individual worker and the recruitment company is drafted in such a way that the clear intention is to provide no security to the agency worker. So, for example, it is described as a “contract for service”. The contract specifically states that “these terms shall not give rise to a contract of employment”. It was submitted that this type of contractual arrangement must be distinguished from a conventional employment contract as there is no compulsion on the recruitment company to offer work and no duty on the claimant to accept work. The contract is absolutely silent on what is to happen in the event that, despite their best endeavours no other suitable assignment is available. However the witness GD did confirm in her evidence on behalf of the recruitment company that “if we didn’t have and alternative roles for them that it would be a redundancy situation and we would have to go through the procedures of redundancy”. The Tribunal accepts that in and around October and November 2013 RA’s restructuring resulted in a reduction in its need to engage ramp handlers or ground handling agents as they were known.
The Tribunal can see no evidence to support the suggestion that the claimant herein (together with his co-claimants) was in some way singled out at this time as a result of his having previously brought the respondent before the Rights Commissioner concerning non-payment for break periods. The very clear evidence is that in and around November 2013 the services of up to 38 people were no longer required by RA by reason of scheduling changes in Dublin airport. The Tribunal cannot accept that this situation was manufactured to get rid of the claimant and his colleagues but was, in fact, an unfortunate example of the precarious nature of agency employment. The claimant only had two week’s notice of the fact that his six year posting in RA was coming to an abrupt end. The Tribunal must accept that RA were entitled to make this decision and the evidence on offer did demonstrate that the decision was in response to annual seasonal adjustments. Unfortunately for the claimant, the fact that he had not previously been effected by the seasonality experienced in the workplace, did not guarantee his position. As an agency worker the claimant had no security of tenure. RA was entitled to act in the way that they did and no Unfair Dismissal arose.
There is some conflict in the evidence proffered, regarding the period of time immediately after the 14th November 2013. The claimant gave evidence of a half-hearted attempt on the part of the recruitment company to find alternative positons for him. These efforts seemed indeed to involve last minute phone calls with a short turn for maybe only a day’s work. As against that description, the Tribunal must accept that the agency had had a large number of its workers return to its books and was trying to place them all.
In evidence it became clear that those that were actively seeking work would fare better than those that sat back and waited for the work to come to them. Counsel for the agency in as many words had suggested to the Tribunal that this was effectively what the claimant had signed up to and that again, this was the nature of agency work.
The Tribunal notes that the jobs being suggested were generally at a lesser rate of pay than had been contractually specified. One job offer with Irish Ferries was at a greater hourly rate. The Tribunal is critical of the purported and limited attempts made by the agency to find the claimant suitable alternative employment. No explanation was given as to why there was no evidence to support the efforts in the obvious form of e-mails, and the Tribunal has no way of verifying any phone calls being made
Despite all this, there is no doubt that the claimant himself, made no real effort to engage with the agency and it is clear from the outcome of his meeting with M on the 4th November 2013 that the claimant was seeking clerical work, specific workplaces and a possibility of doing a FAS course. That the claimant had been disappointed that he had been let go from RA, there is no doubt. Whether the claimant was ever really interested in the agency finding alternative employment, the Tribunal cannot be persuaded it was so.
On balance the Tribunal must find that the claimant was not made redundant (as alternative employment was available) and was not unfairly dismissed and instead the claimant opted not to engage and had found alternative employment by February 2014.
Sealed with the Seal of the
Employment Appeals Tribunal