ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00021027
Tower Crane Driver
A Recruitment Company
Andrew Turner Hamilton Turner Solicitors
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 12 of the Minimum Notice & Terms of Employment Act, 1973
Date of Adjudication Hearing: 10/06/2019
Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant is a Tower Crane Driver who was employed with the Respondent from 15th March 2016. He was dismissed on 15th October 2018.
Summary of Complainant’s Case:
The Respondent is a specialist staffing firm that supplies employees to the construction and other industries. The Complainant was not furnished with written terms and conditions of employment. There were no disciplinary issues. The Complainant’s father was seriously ill in October. He informed the client Site Manager and was told to take off as much time as he needed. On 11th October, the Complainant telephoned the client Site Manager to say he was ready to return to work on the following day 12th October. He was asked to return the following Tuesday 16th October 2018 as a replacement Crane Driver was retained until then.
On Monday 15th October 2018 the Complainant received a call from a member of the Respondent to say the Complainant had lost his job, as the Respondent lost the contract to supply a Crane driver for the site. The Complainant was unable to contact the client Site Manager by phone, and an email seeking a reference was not answered. It was more difficult to find work as he had no reference.
The Complainant requested alternative work and was informed the industry was quiet but they would keep him in mind. The Complainant is aware of numerous other Building Company sites opening up by the same client Company that require a Crane Driver, and he was never contacted about these despite his excellent record. The Complainant was dismissed without justification.
The Complainant relies on the decision in Hennessy v Read & Write Shop Ltd UD 192/1978 and Frizelle v New Ross Credit Union Ltd  IEHC 137. The Complainant questions the extent of the enquiry carried out prior to dismissal, and its conclusion. The employer is required under the Act to show there are substantial grounds for dismissal and fair procedures have been complied with.
The Complainant claims loss of earnings of 12,124.53 and minimum notice of 2,694.34 euro.
Summary of Respondent’s Case:
The Respondent rejects the Complainant’s claims and says there was no dismissal, and the minimum notice claim must also fail. The Complainant’s employment did not terminate on 15th October 2018 and he continued to work for the Respondent on various other jobs up to February 2019.
The Respondent is an employment agency. The Complainant commenced work on 15th March 2016 as a General Operative/Craftsman.
His contract of employment provides his hours of work are assigned on the basis of needs of the client’s business. The employee is not obliged to accept any offer of work nor is the company obliged to offer placements. Termination of an assignment does not necessarily give rise to termination of the employment contract with the Respondent Agency. The employee will be told as soon as practicable of any assignment ending. Periods between assignments are deemed to be lay-offs.
During the period of employment, the Complainant worked for various building companies who are clients of the Respondent.
The Respondent says the Complainant informed the client Site Manager who was employed by the Building company that a family member was ill, and he had to leave the site for a number of weeks. On 18th October he contacted a member of the Respondent and told her he could return to work on 22nd October 2018. This is the first time the Respondent became aware of the Complainant’s absence. The Respondent contacted the client who said they replaced the Complainant as they had lost too much time already. The Respondent contacted the Complainant to say they would seek other work. Work was offered on 26, 30, 31 October, 5 & 9 November but the Complainant declined the offers although they were comparable to a Crane Driver. The Complainant took up work from 23 November to 10 December, 28 January to 15 February. He walked off the site on 16th February and never returned to work.
The Complainant took up alternative employment on 4th March 2019.
Findings and Conclusions:
I have heard the evidence of the parties and considered their written submissions.
S13 of the Unfair Dismissal Amendment Act 1993 provides that where an individual agrees with an employment agency to provide personally services to a third person (whether or not the third person is party to the contract or whether or not the third person pays the wages for the individual for the service), in respect of a dismissal after commencement of the service, the individual shall be deemed to be employed on a contract of employment and any redress under the Act for unfair dismissal of the individual under the contract, shall be awarded against the third person.
The Complainant says he commenced employment on 15th March 2016. He denies receiving a contract of employment and says he was unaware of any grievance procedure being in place. The Respondent has produced an unsigned Contract of Employment and seeks to rely on its terms. However, having considered the evidence given, I am not satisfied that the Complainant received this contract of employment.
The Respondent says the Complainant was employed by 6 different clients as a Crane Driver during his period of employment with the Respondent. These covered different periods of employment and there were gaps. Termination of an assignment with a client company, does not mean termination by the Respondent. The Complainant was paid his wages and holiday pay by the Respondent. The Respondent says the Complainant had previously raised a grievance with the Respondent in relation to site hours on a client site which they resolved.
The Complainant worked for a client building company from October 2016 to February 2018 on one site. He then moved to another site for the same client building company from February 2018 to October 2018.
The Complainant claims he was unfairly dismissed from the site in October 2018, when he had to take time off due to his father’s serious illness. He informed the client Site Manager he had to leave the site for this reason. The Respondent said they were not aware of this until the Complainant was due to return to work some time later and he sought his job on the site back. The Respondent informed the Complainant he was replaced by the client and the contract was lost. The Respondent denies there was any dismissal under the employment contract.
The Complainant says that the client or hirer continued to have Crane driver jobs on sites, but he was not retained for those jobs. The client or hirer is not named as a party to this complaint. There was no formal grievance raised by the Complainant with the Respondent in relation to the termination of the assignment in October 2018.
The Respondent gave evidence that further work was offered to the Complainant in October and November. The Complainant worked for a client from 23 November to 10th December 2018. He also worked for a client from 28th January to 15th February 2019 when his employment ceased.
I am not satisfied that a dismissal occurred on 15th October 2018. The client assignment terminated on 15th October 2018, but there is no evidence this terminated the contract of employment between the parties. Both parties continued to act in accordance with the employment contract until February 2019. I am also mindful that the Complainant did not at any time raise a formal complaint in relation to this issue. The Complainant’s claim for unfair dismissal fails.
Accordingly, I find the Complainant’s claim pursuant to S12 of the Minimum Notice and Terms of Employment Act 1973 is not well founded.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
The Complainant’s claim for unfair dismissal fails.
I determine the Complainant’s claim pursuant to S12 of the Minimum Notice and Terms of Employment Act 1973 is not well founded.
Dated: 17th December 2019
Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll
Employment agency, unfair dismissal, agency liability, hirer liability for unfair dismissal.