ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00006638
A government agency
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 14/03/2018
Workplace Relations Commission Adjudication Officer: Shay Henry
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and/or Section 13 of the Industrial Relations Acts 1969following the referral of the complaint to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
The respondent contracted a separate organisation to carry out certain functions on its behalf relating to the role of a permanent member of staff seconded to another role. The latter organisation employed the complainant on fixed term contracts. The complainant contends that the respondent was in fact the actual employer and that she has been unfairly dismissed by the respondent. Secondly, she has made a claim under the Industrial Relations Acts in relation to her conditions of employment.
Summary of Complainant’s Case:
On 5th Nov 2013 the respondent contacted a private sector organisation (Organisation A) advising that one of their employees was taking up a national post and that due to the embargo on recruitment they could not replace her but could fund the replacement through Organisation A. A recruitment process took place with the involvement of the respondent both in shortlisting and on the selection board. The complainant was successful and provided with a fixed term contract commencing on 3 Feb 2014 for 12 months. The contract specified that she would be located on a premises belonging to the respondent. She had her induction with Ms B, an employee of the respondent, who provided her with all relevant information regarding her work. All aspects of her work were respondent related with the exception of her pay for which she submitted monthly timesheets and travel and subsistence to Organisation A. All these were signed off by her respondent manager before submitting to Organisation A. The complainant had an ID card of the respondent, an email account of the respondent and worked alongside employees of the respondent. She represented the respondent at various meetings. She was also included in Personal Development Plans for the respondent. It was only in July 2014 when the complainant first met with the Organisation A manager. The complainant was paid at G 5 rate even though the person whom she was replacing was at G 6.
When she received the extension until 31 Dec 2016 she queried this and was told by a manager of the respondent that difficulties had arisen due to a separate case under the FTW Act. She was similarly informed by the HR Manager of the respondent on 22 July 2016 and that she would be let go in December. The complainant wrote on 30th Nov to the respondent outlining her concerns and seeking that they be addressed prior to her dismissal but this did not happen. The respondent paid the redundancy money to Organisation A to pay the complainant. The respondent viewed this as a redundancy situation but the work still continues.
It is the position of the complainant that the respondent employed the complainant through Organisation A ,- it was the respondent’s decision when to hire and when to fire the complainant and Organisation A, who issued the contract, was merely the conduit through which the respondent funded and employed staff during the national recruitment embargo - as such the respondent was the real employer is the correct respondent.
Summary of Respondent’s Case:
The complainant was at all times an employee of Organisation A as is evidenced by;
· Her contracts of employment were with Organisation A
· Her reporting relationship was to the Manager and Board of Organisation A
· Her entitlements as an employee were availed of by making requests to Organisation A e.g. for leave, time in lieu etc. the approval rested with that body
· Regular meetings held between the Complainant and the manager of Organisation A
· The complainant has responsibilities with Organisation A over and above those connected to the respondent’s project.
· The complainant was paid redundancy by Organisation A
The approach of the EAT in Hyde v Fr Denis Kelleher as nominee of the sponsors of the Fermoy Schools Project v C.E.S and Foras Áiseanna Saothair (2004) IS ELR 145 is instructive. In that case the EAT determined;
The starting point in an enquiry is to examine any written contract between the parties. The fact that FAS had a regular ongoing contact with the claimant and provided him with information did not mean that FAS had control over the claimant nor did it evidence a mutual obligation between FAS and the claimant.
In a second case, Joan Blackbyrne v Thomas Pringle and Houses of the Oireachtas (2014) 25 E.L.R. 153 the EAT held that the claimant would have to establish that, if the second respondent was her employer, they intended to be her employer and were understood by the claimant to be her employer for the duration of her tenure in the Houses. No such intention exists in the current case.
Unfair dismissal. The Complainant in her submission alleged that she was advised by senior management that the reason her contract was not being renewed was because a colleague had successfully taken a case against the respondent in respect to an entitlement to a CID. It was therefore the Complainant’s belief that she was not offered a new contract in order that she not acquire similar rights. The respondent denies that her employment finished for that reason.
In September 2013 an employee of the respondent was granted secondment for one year to a national role. Because the respondent was precluded from recruiting it chose to have the service delivered by an external body which it is entitled to do under statute. The respondent entered into a service level agreement with Organisation A for that purpose and Organisation A recruited the complainant. At the end of the period it was expected that the seconded employee would return and the arrangement with Organisation A would come to an end. However, the seconded employee contracted a serious illness and it became clear she would not be returning for at least 12 months. In July 15 the Complainant informed Organisation A that she would be availing of maternity leave. Although the arrangement was due to come to an end in February 2016 Organisation A was concerned about terminating her employment during pregnancy and contacted the respondent to seek additional funding to continue the position for the duration of the maternity leave. The seconded employee returned to work in Oct 15, on reduced hours and the respondent agreed to a further extension to the complainant’s employment. The Complainant returned from maternity leave in March 2016 and the resumed her position. The respondent understands that she would have been informed by Organisation A that her employment would come to an end on 31st December 2016. The respondent temporarily reassigned the seconded employee to an alternative position as part of an ongoing phased return to work as agreed with Occupational Health.
The terms of the Complainant’s contract are exclusive to Organisation A. The recruitment process was undertaken and managed solely by that employer. When the respondent notified Organisation A that funding was to be discontinued the latter would have been acting lawfully in taking a decision to terminate the complainant’s employment by reason of redundancy i.e. a fair dismissal. Therefore, if it is decided that the complainant was in fact an employee of the respondent, in any event the respondent would have been entitled to terminate the employment. The return of the substantive post holder would have been the objective grounds for ending the fixed term contracts which were related to the absence of the substantive post holder.
As with the complaint of unfair dismissal, the respondent denies that it is the appropriate employer for the industrial relations claim. In any event the claims for less favourable treatment were disputes of right rather than of interest which should have fallen to be determined under the Fixed Term work act. The respondent would point out that it funds a large number of such positions and that any recommendation made would significant ramifications in the sector.
Findings and Conclusions:
The first issue to be considered by me is the employment relationship between the complainant and the respondent. It is clear from the evidence presented that the respondent is enabled by statute to contract out its services as deemed necessary. However, there is nothing in that enablement which requires the respondent to be treated differently than any other employer when considering whether or not an employer employee relationship exists. The same tests apply.
While the contract of employment is part of the evidence to be considered it is by no means the sole determinant of the employment relationship. Historically, issues such as the level of control exerted and the level of integration within the organisation are also relevant. In this instance I am satisfied in relation to these two tests that the respondent was de facto the employer. In reaching this decision I note in particular;
· The complainant was replacing a permanent member of staff of the respondent and substantially carrying out that role. She was recruited in the manner she was in order to avoid the embargo on recruitment applying to the respondent.
· The respondent was fully involved in the recruitment process.
· On a day to day basis the complainant was subject to instructions by staff of the respondent and to the respondent’s controls.
· When she was made redundant the respondent paid an additional fee to Organisation A to cover this cost, although there was no provision in the memorandum of understanding between the two parties requiring the respondent to do so.
The role of Organisation A was therefore to assist in the recruitment of, and administration of the complainant’s terms and conditions, including contracts of employment, on behalf of the respondent.
Unfair Dismissal. The complainant was dismissed at the end of a fixed term contract. The complainant has contended that she should not have been dismissed as the work for which she was employed continues and therefore it was not a genuine redundancy situation. However, the respondent argues that it was clear at all times that her employment related to replacing the substantive post holder who was absent, initially on secondment elsewhere, then due to sick leave and finally, on a limited return to work. In such circumstances, on the return to full time employment by the substantive post holder, the termination of the fixed term replacement would not give rise to a redundancy situation as the post continued to exist.
The complainant also alleges that she was informed that her contract would not be extended due to a case by another employee of the respondent having been processed successfully by that employee under the Fixed Term Act and resulting in a CID. I note that on her final contract the complainant was given a renewal until December 2016, not for a full year as had been the case previously. This decision was made before the outcome of the other case was known to the respondent and indicates an intention not to automatically renew the contract.
The burden is on the respondent to show that the dismissal was fair. I accept that the reason for the dismissal related to the return of the substantive post holder whom the complainant was replacing, and the ending of the complainant’s fixed term contract, and accordingly the dismissal was not unfair.
Industrial relations issues. The complainant was paid at a grade lower than the substantive post holder whom she was replacing. There are long standing arrangements within the respondent agency whereby staff in acting positions are paid at the same grade as the substantive post holder whom they replace and therefore I recommend that she be compensated for the failure of the respondent in this regard. In determining the amount I am cognisant of the fact that the complainant has already been paid a sum as redundancy, when a redundancy situation did not exist.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.]
In relation to the claim under the Unfair Dismissals Act, I find that the dismissal was not unfair.
In relation to the claim under the Industrial Relations Acts I recommend that the respondent pay the complainant €5000 as full and final compensation for the unfairness of its treatment to her, which sum, not being an award of wages is not subject to tax.
Workplace Relations Commission Adjudication Officer: Shay Henry
Determination of employment status.