ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00011734
An Entertainment Venue
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 06/04/2018
Workplace Relations Commission Adjudication Officer: Roger McGrath
In accordance Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
The complainant was employed on an as needs basis, through an agency, as a barman with the respondent in September 2011. He contends that he was unfairly dismissed following an incident on 6th May 2017 while working with the respondent. He submitted a Complaint Form with the WRC on 5th November 2017. His gross hourly rate of pay was €11.50.
The respondent raised a preliminary point. It is the respondent denies the complainant is employed by them and is in fact employed by a recruitment agent, with whom the complainant has a signed contract.
The respondent engages the recruitment agency to provide staff to a specific venue (the venue) for bar work. The respondent asserts that the complainant was assigned by the agency to work as a bartender in this venue on an as needs basis with a right to refuse work as part of this arrangement.
The respondent put forward that the complainant is not, nor ever was, an employee of the respondent. Furthermore, the respondent understands that the employment contract entered into by the complainant and his employer (the agency) has not been severed. The complaint is, according to the respondent, still an employee of the agency, a fact that he is aware of. Therefore, the fact of dismissal is in dispute.
In addition, the respondent submits that as the complainant has not been dismissed he does not have the locus standi to rely on the Unfair Dismissals legislation. The complainant, according to the respondent, has not been dismissed by his employer, the agency, nor has he resigned his position and as evidenced in his submission accepts that he is still an employee.
Notwithstanding the above, the respondent submits that the incidents on 6th May 2017 have left the respondent in a position that they have lost trust and confidence in the complainant being assigned to a role in the organisation. However, it is the respondent's understanding that the complainant is still in employment with the agency and they have been in contact with him about alternative assignments.
A representative of the agency attended the hearing and gave evidence that the complainant is still employed by them.
The complainant stated that as an agency worker he had only worked in two venues. Most of his agency work, perhaps up to 90%, had been in the venue. In 2016 he reckoned that to be between 12 and 13 hours per month and in 2017 an average of 8 hours per month. He has a full-time job elsewhere but needed the extra money the agency work provided. He is still working full-time elsewhere.
During the hearing the representative of the agency stated that the complainant had not been offered any work since May 2017. She explained that the complainant's availability is restrictive, things have been quiet, no suitable work had arisen in the period and there were difficulties with contacting him because of an error with his mobile phone number. She did state that he was "very much on the books."
Findings on Preliminary Point
The respondent argued that as the complainant was not their employee he therefore could not have been dismissed by them; not only that, but he is still employed, as before, with the agency. However, considering that 90% of the complainant's agency time was spent working for the respondent I am satisfied that the "end-user" in this instant case is the respondent. The fact that the complainant was not offered any work by the agency between the incident in May 2017, when he was sent home by the respondent, and the date of the WRC hearing in April 2018 is telling.
Section 13 of the Unfair Dismissals Act (as amended) 1993 provides that agency workers can seek redress for unfair dismissal from the business in which they are placed by an employment agency (i.e. from the "end-user"). That being the case I shall now review the circumstances surrounding the incident of the 6th May 2017.
Summary of Complainant’s Case:
The complainant submitted that he was working on a bar in the venue on 6th May 2017. He had not worked with the supervisor on duty before and he thought her strict. An incident took place between the complainant and his supervisor in which words were exchanged. A short time later the retail manager for the venue arrived and told the complainant to go home, that he could not deal with the matter at that time and that the complainant would be paid for his shift.
On 9th May the complainant received a call from the agency saying that the manager in the venue had said that he did not want the complainant back in the venue. Subsequently, having investigated the matter further, the agency representative told the complainant that the supervisor had a totally different version of the events of the 6th of May than he did, and that is why the venue did not want him back.
The complainant believes he was not given the opportunity to tell his side of the story to management and that he did not deserve to be dismissed for what he believes to have been a trivial incident.
Summary of Respondent’s Case:
Findings and Conclusions:
Section 13 of the Unfair Dismissals Act (as amended) 1993 provides that agency workers can seek redress for unfair dismissal from the business in which they are placed by an employment agency (i.e. from the “end-user”). The “end-user” in this instant case is the respondent. There is an onus on the “end-user” to demonstrate that the agency worker’s assignment was terminated in accordance with fair procedures.
In this case the complainant was summarily dismissed with no procedures whatsoever; there was no evidence of written or oral communication from the respondent to the complainant advising him of the charges against him, his right to representation, his right to be heard and the potential implications for his future employment. The respondent simply ended the assignment.
For the reasons cited above, I find the complainant was unfairly dismissed.
I consider compensation the appropriate remedy. Considering the casual nature of the work and the average hours worked by the complainant in the period 2016-7, I require the respondent to pay the complainant the sum of €1,150.
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.
I uphold the complaint of unfair dismissal and I require the respondent to pay the complainant the sum of €1,150.
Dated: 19 September 2018
Workplace Relations Commission Adjudication Officer: Roger McGrath
Agency, end-user, procedure