ADJUDICATION OFFICER DECISION
A distribution firm
Complaint Reference No.
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
On 2 May 2018, the complainant submitted this complaint of unfair dismissal. In this instance, the respondent is a distribution company. She submitted a second complaint of unfair dismissal (subject to my report in ADJ-00014534) against the agency respondent. The complaints were heard together on 18 October 2018. The complainant was represented by a lay representative, while the distribution company was represented by IBEC.
In accordance with 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 asserts that her employment ended on 6 November 2017 and this dismissal was a contravention of the Unfair Dismissals Act. The respondent denies the claim.
Summary of Complainant’s Case:
The complainant outlined that she was employed by the agency from 2010. She was only informed on the eve of starting with the distribution company that she would be an employee of the agency. Her employment was covered by section 13 of the Unfair Dismissals Act 1993. The agency failed to comply with a direction of the Employment Appeals Tribunal to supply her with a statement, as the statement supplied did not reflect the terms of the employment. There was no reference to the bullying, grievance or disciplinary policies. She never received a company handbook or code of conduct from the distribution company. Both respondents used the absence of such policies against her by making things up “on the hoof”. She was under the direct control of the distribution company and paid by the agency.
The complainant said that she was publicly humiliated by a named manager of the distribution company when he ripped up her work in front of a customer and a member of staff. There had been a previous bullying complaint. The manager referred to the complainant and another staff member as ‘crash’ and ‘burn’. She was on sick leave until 19 May 2014. The agency sought to impose procedures on her return. They did not apply the correct protocol.
The complainant sought to return to work but was refused entry to the workplace. She received a letter of suspension from the director of the agency. The distribution company refused to engage with her. Since May 2014, the complainant has sought to return to work and supplied six ‘return to work’ certificates. No disciplinary process was initiated against her. She submitted that both respondents maintain a fiction that they did not receive the medical certificate in 2014 but this was hand-delivered to them and submitted to the Rights Commissioner hearing of 3 February and 20 April 2015.
The complainant submitted that her date of dismissal was 6 November 2017. She incurred financial loss arising from the dismissal. She sought reinstatement to her part-time role. She could work these hours and continue studying and her role on a CE scheme. The distribution company refused to engage with her and the respondents have taken an “agreed” position. She wishes to return to work but the director of the agency refuses to meet her.
The complainant commented that the agency last paid her in February 2014 and she had two days of annual leave outstanding. She was on sick leave between 17 February and 19 May 2014, when she was forced to participate in an investigation. This found that she did not have the required skills, but the manager had refused to show her how to complete tasks. This was an investigation into the manager but made findings against her. The manager had been required to work under supervision and later left. The outcome of the investigation was supplied to the occupational health doctor for the distribution company before it concluded. The complainant attended the distribution company doctor, but this documentation was not supplied to her. She later obtained this by a data access request to the occupational health doctor.
The complainant outlined that as there was no reply to the email of 6 November 2017, this amounted to the act of dismissal. There were no specific words of dismissal. She asked to go back to her job, but this was not allowed.
In respect of the case against the agency, the complainant said that while she had been contacted by the agency for the role, she was only aware that she would be an agency worker on the eve of commencing the role. She said that there was no financial loss arising from the dismissal and sought redress against the agency of four weeks’ pay. She commented that there were flagrant untruths in the respondent submission.
The complainant said that she was not supplied with the email of 8 May 2014 and had not replied to it. She said that working on the CE scheme would not have prevented her from also working for the agency. She was fit to work on 19 May and 18 June 2014. She was suspended after 2014 so the periods of illness did not matter.
In questioning, the complainant was asked on which date her employment ended; she replied that it was the day she was suspended, and she had not wanted to participate in the investigation because of what was going on. She described herself as a “mess” and not able to function after May 2014. She was in ICU for three days. She commented that her employer was the agency while the distribution company was the hirer. The pay slips referred to the agency. In 2010, she signed documents for both the agency and the distribution company. The agency had not offered her a role elsewhere.
The complainant outlined that the sick leave documentation did not say how an employee should return to work. She thought it would be okay for her to return to the distribution company office as she did. She emailed as she went to work, but this email was delayed because of internet issues. She had no dealings with the agency except to get paid. She outlined that she was somewhat anxious going back to work as there was no reply from distribution company. The complainant outlined that she applied for roles in 2017. She worked in a CE scheme in 2016. She could not recall applications back to 2011. She was in college two nights a week. She said that she is stuck in limbo and waiting to be reinstated. She always wanted to go back to work. She was fit to work on 19 May 2014.
It was put to the complainant that she was building a scenario of constructive dismissal, but she never intended to return to work; she replied that she could have taken a case of constructive dismissal in 2014 as she had copious evidence. She was refused an informal enquiry and did not have a contract of employment or policies. After her experience of the first investigation, she did not want to go back into the building.
The director had shouted at her when she collected the letter for social welfare. It was put to the complainant that she had not complained in 2015 of the director shouting at her; she replied that she was suffering from the trauma of being shouted at and at being kept in a room during the investigation meeting. There was a recording of the shouting.
The complainant did not have information about when she looked for work. She was unable to say off the top of her head what she did between May 2014 and October 2017. She worked for the CE scheme on Wednesdays, Thursdays and Fridays but these hours could be changed to suit employment. She confirmed that she was now fit for work and seeking reinstatement with a proper contract.
The complainant outlined that the primary action was against the distribution company, relying on section 13 of the Act. The case against the agency was one of constructive dismissal based on their failure to provide terms and conditions and to comply with the direction of the EAT. In reply to the respondent, the complainant said that the employer provided a ‘zero hours’ contract after the EAT hearing. She did not receive letters in 2015. The phone call with the agency director in 2014 took place while she was in a back office, but the manager had left the door open. The letter of 22 May 2014 did not refer to the suspension being only for one day. She had recorded the conversation with the shouting for protection.
Summary of Respondent’s Case:
The respondent outlined that it was unaware of the date of dismissal. It had no information regarding the complainant’s return to work or her resignation. It had no involvement in this matter after May 2014. It was unaware of her fitness to return on 23 October 2017. It submitted that the majority of the evidence related to the agency and the last contact between the distribution company and the complainant was in 2014. It was not the primary respondent to this claim.
Findings and Conclusions:
It is fair to say that this employment relationship has taken a protracted course. The complainant’s last day at work was 14 February 2014. There were several interactions regarding the complainant’s return to work in 2014 and 2017. There is significant conflict between the parties as to what happened and who said what. There has been a great deal of litigation arising from this employment relationship. This includes referrals to the Employment Appeals Tribunal against the agency and litigation before a Rights Commissioner and the Labour Court against both respondents. There are personal injury proceedings in the High Court, also against both respondents.
The respondent in this case is the distribution company, where the complainant worked while employed by the agency respondent. Section 13 of the Unfair Dismissals Act, 1993 provides that, for the purposes of the Unfair Dismissals Act, the employment relationship is between the employee and the hirer. Any redress pursuant to the Unfair Dismissals Act is made against the “third person”, i.e. the hirer.
As submitted by the distribution company, it had no involvement with the complainant after 2014 (presumably, other than to attend hearings such as this one). It did not take part in the emails exchanged in October 2017. The email of 6 November 2017 was not sent to it. While the agency respondent acts as an employment agency and the supplier of labour, it is not the distribution company’s agent in the sense of being capable of binding the distribution company or being its representative. An email of resignation sent to the respondent agency does not fix the distribution company with knowledge of the resignation. It follows that there is no dismissal or resignation in respect of the distribution company respondent.
For completeness, I have considered the claim of constructive dismissal. The complainant outlines that the date of dismissal was 6 November 2017. This was when the complainant emailed the agency. The email refers to an ongoing breach of the Terms of Employment (Information) Act and the ongoing victimisation of the complainant by her suspension from the workplace. The email refers to the complainant being certified as fit to return to work from May 2014 and that the respondent and the distribution firm were aware of this since then. The email concludes “If you are unable to confirm my return to work in [the distribution company] I will contact [the distribution company] directly to arrange return of a number of [distribution company] uniforms which are in my possession. I await your response.”
I am satisfied that the email of 6 November 2017 constituted a unilateral act of resignation on the part of the complainant to end the employment relationship. The complainant advanced that this is a claim of constructive dismissal. It follows that the onus is on the complainant to show that the actions of the employer repudiated the employment contract or that it was reasonable for the complainant to consider herself to have been dismissed.
In assessing whether the complainant has met either the ‘contract’ or ‘reasonableness’ tests of constructive dismissal, I note the significant conflicts in evidence. The sharpest conflict relates to whether the complainant supplied the agency respondent an ‘unqualified’ medical certificate of her fitness to return to work. The complainant outlines that the medical certificates of 20 May and 14 June 2014 gave this unqualified certification. The agency respondent denies receiving the certificates at the time. It is clear, however, that both respondents became aware of their existence during various hearings, for example before the Labour Court.
Key to assessing whether the complainant has met either test of constructive dismissal is the exchange of emails of October and November 2017. The complainant states she wishes to go back to work at the distribution company and the agency seeks to meet her. The complainant submits evidence of her medical fitness (the certificate of 19 October 2017). This exchange followed the complainant’s attendance at the agency respondent offices on 17 October 2017 where she personally served personal injury proceedings as well as indicated her wish to return to work. The exchange of emails reaches an impasse when the agency respondent asks the complainant to attend a return to work meeting to “discuss your availability and the positions that may be suitable.” [Email of 22 October 2017] The complainant asserts “If my suspension is to be lifted and I am to be allowed return to work in [the distribution company] employed by the agency, I will be happy to meet with you. I will, naturally, continue to seek compensation for my victimisation by both [the agency and distribution company] through the Labour Court. If, however, you are unable or unwilling to do this then it is quite simple. I have been dismissed.” [Email of 22 October 2017]
While the complainant is entitled to assert her position as set out in her emails, it is not the case that the agency respondent’s failure to accede to her demands amounts to a repudiation of her contract of employment or provides reasonable grounds for her to consider herself as having been dismissed by either the agency or the distribution company. She sought a guarantee of being able to resume a role with the distribution company. The agency respondent wished to meet her. The failure to provide this guarantee did not repudiate the employment relationship and nor was it reasonable for the complainant to consider herself to have been dismissed. The complaint of constructive dismissal against the distribution company is, therefore, not well founded.
For completeness, the complainant asserted that the dismissal was due to her personal injury proceedings against the agency and the distribution company. Leaving aside that there is no dismissal by the employer, I note that there is no evidence to support any claim that the actions of either respondent were motivated or anything to do with the personal injury proceedings. The exchange of emails and the agency respondent’s attempt to meet the complainant took place in the weeks after the service of the proceedings. This is not the approach of a party seeking to dismiss an employee for such litigation.
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.
For the reasons set out above, I find that the complaint pursuant to the Unfair Dismissals Act is not well founded.
Workplace Relations Commission Adjudication Officer:
Unfair Dismissals Act / constructive dismissal
Section 13 / employment agencies