EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Kamil Majowicz - Claimant UD106/2014
Against
Ryanair Limited T/A Ryanair - Respondent 1
Ryanair Limited - Respondent 2
Under
UNFAIR DISMISSALS ACTS 1977 TO 2015
I certify that the Tribunal
- (Division of Tribunal)
- Chairman: Mr. P. O'Leary B L
- Members: Mr D. Moore
- Mr. S. O'Donnell
heard this claim at Dublin on 13th September 2017
and 1st February 2018
- Representation:
Claimant: E.M. O'Hanrahans Solicitors, 31 Fairview Strand, Fairview, Dublin 3
Respondent: Mr Frank Beatty S.C. instructed by:
McDowell Purcell, Solicitors, The Capel Building, Mary's Abbey, Capel Street, Dublin 7
- The determination of the Tribunal was as follows:-
- Background:
- The claimant was employed as a ground handling agent for the respondent from the 3rd of December 2007 in Dublin Airport. He was employed by an agency MK Ltd, paid by the agency but worked for the respondent in the airport.
- An incident occurred on the 9th of October 2013 and subsequently his employment in the airport ceased on the 16th of October 2014. The claimant requested an explanation for this dismissal and received a letter from MK Ltd on the 24th of October 2013 stating the respondent no longer required the claimant to carry out duties for them.
- On the 21st of October 2014 the claimant began working for another company – X Ltd. The claimant resigned from MK Ltd in August 2014.
- The Tribunal heard evidence from the claimant. No evidence as adduced by the respondent. Submissions were adduced by both representatives on behalf of their clients.
Determination:
On the information furnished to the Tribunal and common to both sides it is a fact that the Claimant was employed from the 3rd day of December 2007 at Dublin Airport. He was recruited by MK Ltd, an employment agency, but worked under the direction of the named Respondent in the Airport. He was paid by the agency who also furnished him with a contract of employment. His employment in Dublin Airport ended on the 16th of October 2013. He then, on the 20th day of October 2013, was given a position in another company X Ltd by MK Ltd. He sought an explanation from MK Ltd as to why he was not allowed to continue with the Respondent and this explanation was furnished to him by letter dated 24th of October 2013 from the Managing Director of that agency. The agency reported to him on the 16th of October 2013 that the Respondent no longer required him to carry out the duties that he had been performing for them. The reason given to him in the letter from MK Ltd that the Respondent no longer required his services was that he had failed to follow the Respondent correct reporting procedure in respect of an accident in which the vehicle he was responsible for, was involved.
At the initial hearing of the matter before the Tribunal, Counsel representing the Respondent stated that the Claimant had no right to make a claim as there was no dismissal and that as the Claimant had been given another assignment by MK Ltd immediately on being removed from the Airport, he could not claim that there was a dismissal as his employment with MK Ltd was continuous. Four days following his removal from the Airport and from the Respondent he had been sent to another assignment in a company called X Ltd. Counsel for the Respondent in cross examination of the Claimant put it to the Claimant that the Respondent was not the correct respondent in this case but rather that MK Ltd was, because the Claimant`s employment with MK Ltd was continuous and without a break. The Claimant was also brought through some of the provisions in the contract he had with MK Ltd. The Tribunal was given evidence to show that the Claimant was paid a different rate for his work with the Respondent to that for his work with X Ltd. Counsel for the Respondent further stated that the provisions of Section 13 of the Unfair Dismissals (Amendment) Act, 1993 do not apply in a case where there was a loss of an assignment which he claimed was the position in this case.
The Tribunal noted that the Claimant put in his claim for Unfair Dismissal against the Respondent on the 17th of January 2014 claiming that he was dismissed from them on the 16th of October 2013. The claimant resigned from MK Ltd voluntarily on the 10th August 2014 by letter.
There are a number of issues in this case that have been raised for the consideration of the Tribunal and these are as follows:
- Who was the employer of the claimant? Was it MK Ltd or the Respondent ?
- Was the claimant dismissed? Or was he just re-assigned?
- What remedy could the Tribunal award if they find in favour of the claimant. If the Tribunal decided that the most appropriate remedy was compensation what loss did the claimant suffer?
What is not in dispute in this matter is that the Claimant had performed personally, work and services at the direction of the Respondent for a period of five and a half years. There is also no doubt that the Claimant had agreed with MK Ltd, who are an employment agency within the meaning of the Employment Agency Act, 1971, to do work and perform services personally for the Respondent. It also appears from the evidence that the Respondent had conditions imposed on agency workers and in particular the Claimant that would in the normal circumstances be imposed on any employee employed and working for them. The Claimant worked on premises controlled by the Respondent and under their instructions including work procedures, one in particular that is very relevant in this case i.e. the reporting of accidents, during the term of his employment, with equipment supplied by them and this had been the case for five and a half years.
Section 13 of the Unfair Dismissals (Amendment) Act, 1993 was enacted to correct the perceived mischief in the Unfair Dismissals legislation recognised by the Oireachtas arising out of the decision made in the Clarks of Ranelagh case.
Section 13. 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 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 party 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.
In any claim for Unfair Dismissal it is essential that the claimant was an employee of the Respondent and that there was a dismissal. This case was taken against the Respondent. In looking at the provisions of Section 13 shown above it can be seen that the claimant performed his duties for the Respondent and worked under conditions placed on him by that Company. The Tribunal accepts there is was a contract between the Claimant and MK Ltd. However, Section 13 (a) of the aforementioned Act imports a contract of employment into the relationship between the Respondent and the Claimant and that is the contract that entitles the Claimant to claim that he was unfairly dismissed. There is no doubt that Section 13 of the Act deems him to be for the purposes of the legislation an employee ....“ employed under a contract of employment” with the Respondent. The contract therefore that the Claimant was working under in this case while he was working for the Respondent was the one implied by Section 13 (a) and not any purported contract with MK Ltd. The Tribunal have therefore decided that the claimant was correct in naming the Respondent as his correct employer in this case.
Was there a dismissal?
Dismissal can come in many ways. It can be effected by words or actions or even by the lack of them but the circumstances will always dictate whether one has taken place or not however it will always arise out of a decision of the employer. In the letter dated the 24th of October 2013, Ms. GD, Managing Director of MK Ltd states that “.... our client (the Respondent) informed us that they will no longer require you to carry out these duties”. There is only one fact that can be interpreted from this statement which is that someone in Ryanair decided to terminate the Claimant’s contract as dictated by the terms of Section 13 (a) mentioned above and they communicated this decision to Ms. GD. The fact that the Claimant obtained work with another employer over the next few days through the auspices of MK Ltd is something that can be considered in relation to the remedy if the Tribunal decide that the dismissal was unfair but under no circumstances could his working for X Ltd be considered a continuation of his employment with the Respondent. Section 13 (a) is quite specific and as a matter of law dictates that the Claimant was an employee in employment with the Respondent and not on an assignment that could be continued elsewhere. The Tribunal therefore decides that the claimant was dismissed by the Respondent on the 16th of October 2013.
There appears to have been an investigation of the accident that took place on the 9th of October and the Claimant was questioned regarding it. There was no evidence given of any disciplinary hearing involving the Claimant conducted by the Respondent. In deciding then on whether the Claimant`s dismissal by the Respondent was fair or not it follows that because fair procedures did not take place his dismissal must be unfair.
The most appropriate remedy in this case for the Claimant`s unfair dismissal by the Respondent is deemed by the Tribunal, having taken into consideration the remedies under the Act, to be compensation. The Tribunal considered the question of compensation in this case and noted that in the new position the claimant was paid €8.65 per hour. In his position with the Respondent he was paid €10.00 per hour. He worked a 37 1/2 hour week for Ryanair. This resulted in the loss of €1.35 per hour. or €50.62 per week. The Claimant mitigated his loss in August of 2014 by obtaining a position giving a better salary than he had at the Respondent.
Although the claimant worked more hours with X Ltd than he had worked with the Respondent and as a consequence his weekly salary was greater than what he had earned with the Respondent the Tribunal must consider his rate per hour in both contexts rather the total remuneration per week. The reason for this is that no Tribunal or Court has the right to be unfair and the Tribunal must interpret the law on the basis of what is fair in all the circumstances. Loss having been established the Tribunal therefore award the claimant the sum of €2,024.80 in compensation.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)