ADJ-00010562

Complainant

Respondent

Anonymised Parties

Library Attendant

Recruitment Agency

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00013951-001

14/09/2017

The Complainant signed a contract for services with the Respondent, a recruitment agency, as a temporary worker on 4th November 2010. He was employed by a third party, a Local Authority as of that date. He was paid €499.89 weekly and worked 36 hours a week. The Complainant was given his P45 by the Respondent at the end of February 2017 and he was informed that his contract with the third party was being terminated on the 17th March 2017. The Complainant claims that he was unfairly dismissed and is seeking re-engagement and/or compensation.

The Respondent denies the claim.

The subject matter of this complaint is identical to Adjudication Officer Decision No: ADJ-00010645.

The Respondent submits that on 26th January 2017, the Respondent was notified by letter from Senior Executive Officer of the Local Authority that following a review of staffing arrangements the Authority would be terminating the Complainant’s engagement as of 25th February 2017. The Respondent was informed that the Authority proposed to make a permanent appointment within the Library Service from a Facilities Manager panel that was currently in place. On 8th February 2017, the Respondent informed that Authority, by letter, that they would notify the Complainant of the termination within 5 working days. The Respondent furthermore requested that an extension be applied to the termination date up to 17th March, to which the Authority agreed. On 13th February 2017 the Authority wrote to the Respondent and reiterated that they would not be continuing with the Complainant’s engagement. The Respondent learned that this was to facilitate the recruitment of a Facilities Officer who would provide security. The Authority noted that such a position was required due to the range of issues being faced currently across all library branches within its region. The newly created position would be required to hold a security qualification. The Authority held that, in their opinion the Complainant was never an employee of the Local Authority. On the 28th February 2017, Management from the Respondent met with the Complainant to notify him that his position with the Authority was to be terminated. During the meeting, the Complainant informed the Respondent that he was transferred from his original position to a Librarian role some years previously. It should be noted that at no time did the Authority communicate this transfer to the Respondent. The Complainant’s assignment with the Authority was terminated on 17th March 2017.

It is the Respondent’s position that they are not the correct employer for the purposes of this claim. The Respondent relies on the Section 13 of the Unfair Dismissals (Amendment) Act, 1993, which has the effect that, in any proceedings under the Unfair Dismissals Act, an agency worker is deemed to be employed by the hirer, as opposed to the employment agency. The Protection of Employees (Temporary Agency Work) Act, 2012 does not amend that provision. Therefore, even though the employment agency is deemed to be the employer for the purposes of the 2012 Act, it remains the case that where an agency worker’s assignment is terminated, his remedy for unfair dismissal (if any) will be against the hirer. For the purposes of this case this termination is noted in correspondence received by the Respondent on 26th January 2017 where a Senior Executive Officer from the Local Authority stated: “I wish to formally notify you that [the Local Authority] is terminating its arrangement with your company [the agency] regarding the engagement of [the Complainant] with effect from the 25th February 2017.”

It is the position of the Respondent that they are not correct employer and thus the claim against the Respondent must be dismissed. In that regard, the person hiring the individual from the employment agency, in this case, the Local Authority, is deemed to be the employer. The Respondent relies on Rooney v Diageo Global Supply PRD2/2004, Dacas v Brook Street Bureau Ltd. EQCA Civ 217, Ambrose v Serono Ltd. [2007] E.L.R. 184

The Complainant signed what is expressly described as a 'contract for services' with the Recruitment Agency, the Respondent and was subsequently employed by a third party, a Local Authority since the 4th of November 2010. He was redeployed during his time with the third party and moved to another location in February 2015.

The Complainant was given his P45 by the Respondent at the end of February 2017 and he was told his contract was being terminated on the 17th March 2017 so he was in effect given two weeks’ notice. The Complainant found out indirectly that a new position had been created, facilities/supervisor, and that a person would be starting within a week in circumstances where he had completed his interview and medical. The Respondent were notified that such a person would be introduced in the near future but that the person would be employed by the Local Authority directly. The Complainant was assured of permanency and pension to such an extent that he was not looking for alternative employment. The Complainant submits that he was never engaged with by the Local Authority and was given no proper notice or explanation as to why his job was gone. It is the Complainant’s view he was full time member of staff given the efflux of time since he started with his employer. This was so in circumstances where he sought assurances from the Area Manager, Mr. B who said he would specify the exact nature of the role in due course. No member of the Local Authority, including HR, approached the Complainant. The Local Authority say there was no contract of employment. The Local Authority argue the Complainant is an employee of the Respondent not the Local Authority and say his notice should have been given by the Respondent. Mr B denies the verbal assurances were given. There was a contract with the Respondent and the payment appears to have come through them. The Complainant was at all times under the control of the local authority. Therefore, he was also supervised by the local authority. His duties were all inclusive and he was very much part of the day to day operations. He clearly could not come and go as he pleased and the level of work he did had no bearing on what he was paid. The Respondent were not told when the Complainant was redeployed within the workplace.

Section 13 of the Unfair Dismissals (Amendment) Act, 2993 stipulates as follows: “13. Employment Agencies

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.”

In these circumstances, I am satisfied that although the Complainant was recruited through an agency, the Respondent herein has no liability to the Complainant under the Unfair Dismissals Act, 1977. 

On the basis of the submissions of the parties I find that the Complainant’s claim against the Respondent under the Unfair Dismissals Act, 1977 is not well-founded as the Respondent was at no stage his employer for the purposes of the Act.

Employment agency, incorrect respondent,