Complainant

Respondent

Parties

Aleksandrs  Rodjukovs

CP Naughton Ltd.

Representatives

  Self

 Self

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00051707-001

15/07/2022

The Complainant commenced working for the Respondent on 21 June 2020. His employment ended on 20 April 2022.

In his complaint form, the Complainant set out that his gross pay was €737 per fortnight and that he worked 50 hours per week. The Respondent disputed his rate pay and the hours worked.

At the hearing, the Complainant gave evidence as to his efforts to mitigate his loss. He was able to secure employment at a local retailer.

The Complainant's case was that he applied for and was hired for a position of 'Business Development Labour coordinator' for the Respondent.  He agreed to undergo training and a probation period of six months. He received several different contracts throughout his employment with the Respondent. The contracts referred to his engagement as a general operative.

The Complainant was unhappy with the role he was asked to work in. He raised this with management and was advised that due to Covid, there was not much work available. He received a further contract for a supervisor's position.

During his employment, the Complainant lost his driving licence for a period of six months. During this time, he was unable to travel independently outside of the town he lived in. After the expiration of six months, he requested a meeting with management. He queried when he would move into the role he was hired for. The work he did for the Respondent was as a cleaner in a factory. This is not work that he wanted to do or that he was hired to do.

After this meeting, he received a new contract. The term was four months. He queried this with management as he was not happy with this.  He did not sign this contract.

The Complainant's case was that he was hired in a managerial position but was demoted and used as a simple labourer. He was clear in his evidence that he did not resign, nor was he an agency worker. He agreed that he was placed in a factory setting to learn business for a period of six months.

The Complainant broke his finger and had to take time off work in March 2022. In mid-March 2022 he received a letter from the Respondent informing him that his contract of employment would expire in one month. At that stage she was on sick leave due to his broken finger. He received no further notification from the Respondent.  He discovered his employment ended with the Respondent from his records with Revenue.

The Respondent set out a number of defences to the claim of unfair dismissal namely that the Complainant resigned; that the Complainant was a fixed term worker and his contract came to its natural end and that the Complainant was an agency worker and that it was not the correct Respondent in a claim for unfair dismissal.

It set out that the Complainant became unavailable for work due to a personal accident on the 2 March 2022. At the time he was on a fixed term contract commencing 21 December 2021 and ending 20 April 2022. This fixed term contract was for the position of cleaning supervisor. A copy of the written contract of employment was provided to me. It was not signed.  It identified to the location that the Complainant worked at, and it set out that the provisions of the Unfair Dismissals Act did not apply.

The Respondents explained that they gave the Complainant a four-month contract in December 2021 because he expressed that he did not wish to continue in the role of ‘cleaning supervisor’ on a long-term basis. It confirmed that the Complainant wished to move into a management position. The Respondent advised him that 'any job was better than no job' and they were only able to give him a four-month contract as a cleaning supervisor at that time.

The Respondents case was that the Complainant left the employment of his own accord and was not dismissed.  On 14 March 2022, the Respondent sent a letter of notification to the Complainant reminding him of the expiry of his fixed term contract. Proof of postage was provided to me regarding same.

In response to my query on the technical terms of Section 2 (2)(b) of the Unfair Dismissals Act, the Respondent set out that it was not relying on Section 2 (2)(b). It explained that it was an employment agency and was acting as such in relation to the Complainant's employment.

My first task is to decide if there was a dismissal in this case. Having considered the evidence of both sides, I preferred the evidence of the Complainant and I do not accept that the Complainant resigned from his role.

The Respondent also relied on the exemption set out in Section 2(2)(b) of the Unfair Dismissal Act.  I was provided with several documents from the Respondent.  These included

1.       A letter of engagement headed 'Casual Work' covering 22 June 2020 to 20 September 2020 (unsigned)

2.        A letter of engagement headed 'Casual Work' covering 21 September 2020 to 20 December 2020 (signed)

3.        A fixed term contract covering 21 December 2022 20 December 2021 (unsigned)

4.        A fixed term contract covering 20 December 2021 to 20 April 2022 (unsigned)

Generally, once an employee on a fixed-term contract reaches 12 months' service, he/she will be able to take a claim of unfair dismissal. However, where the technical requirements of Section 2(2)(b) of the Unfair Dismissal Act are met, an employee on a fixed-term contract that has expired or has not been renewed cannot bring an unfair dismissal case.  The technical requirements are:

(i) the contract is in writing

(ii) the contract was signed by both parties

(iii) the contract expressly excludes the application of the UD Acts on expiry of the term

In the contracts provided to me, only the letter of engagement covering 21 September 2020 to 20 December 2020 was signed by both parties. 

Based on the evidence presented to me, the technical requirements of this Section 2(2)(b) of the Unfair Dismissal Act were not met. Therefore, any exemption claimed of section 2(2)(b) of the Unfair Dismissal Act did not apply.

After the first scheduled hearing, the Respondent raised a jurisdictional point and contended that as it employed the Complainant as an agency worker, it is not the ‘employer’ for the purposes of the Acts. In that regard it relied on Section 13 of the Unfair Dismissals (Amendment) Act 1993 and submitted that host company /ultimate hirer was the correct Respondent under the Unfair Dismissal legislation. Section 13 of the Unfair Dismissal (Amendment) Act 1993 specifically provides that for the purposes of the unfair dismissal legislation, the hirer will be deemed to be an agency worker’s employer and the correct Respondent in a claim for unfair dismissal.

Section 13 sets out

“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.”

At the resumed hearing, the Respondent advised that it was registered as an Employment Agency registered under the Employment Agency Act 1971.  This was confirmed by a review of the ‘list of Licensed Employment Agencies’.  This information was not referred to in the first scheduled hearing of this complaint. It came as a surprise to the Complainant when raised in written submissions before the second scheduled hearing. His evidence was that he had no knowledge of any agency engagement. He explained that the Respondent was a cleaning contractor and was engaged directly to provide cleaning services to various clients at various locations.  He said he reported directly to the Respondent’s own managers. 

I reviewed the written contracts of employment/engagement that the Respondent sought to rely on.

The letters of engagement made no reference to agency work. It referred to "work will be offered to you on an hourly basis at various locations subject to the requirements of our customers."

The first fixed term contract made no reference to the words ‘agency work’. The Respondent was set out as the employer in the contract. There was no definition in the contract of employment as to what a host company was. The description/job title was set out as "labour hire operative (supervisor)". The responsibilities included "carrying out a variety of 'labour hire' duties which may include skilled and unskilled tasks which will be explained to you during training...... and may vary depending on the host company's specification. While every step will be taken to inform you in advance of your duties, certain duties may arise during the course of your working day, that may not have been informed to the Employer in advance. "

It set out "you will be expected to travel wherever positions of work become available and your place of work therefore will vary, depending on the needs and growth of the business and the host company's location”.

The second fixed term contract referred to the Complainant's job title as "cleaning supervisor". Immediately below this it set out "Site: Nomad Foods Longford". Below that again it set out "You report to: The Contracts Manager and Director".

In the list of responsibilities, it set out: liaise with customer re-any problems or issues they may have over cleaning.... and may vary depending on the host companies’ specification.

In the definition of renumeration and expenses, it set out at paragraph 12.5 "there will be a premium paid for all work on Sundays. This amount however will depend on the varying shift arrangements of each Host Company. This will be communicated to you in advance by your Employer.”

I have considered all the evidence presented to me both orally and in writing.  I was presented with a clear conflict of evidence on this matter.

To decide on whether the Complainant was a genuine agency worker I had to examine the level of control the agency or hirer each had on the Complainant and his work.  Section 2 of the Protection of Employees (Temporary Agency Work) Act 2012 sets out the definitions of an “agency worker”, an “employment agency” and a “hirer” as follows:

“agency worker” means an individual employed by an employment agency under a contract of employment by virtue of which the individual may be assigned to work for, and under the direction and supervision of a person other than the employment agency.

“employment agency” means a person (including a temporary work agency) engaged in an economic activity who employs an individual under a contract of employment by virtue of which the individual may be assigned to work for, and under the direction and supervision of, a person other than the first-mentioned person.

“hirer” means a person engaged in an economic activity for whom, and under the direction and supervision of whom, an agency worker carries out work pursuant to an agreement (whether in writing or not) between the employment agency by whom the agency worker is employed and the first-mentioned person or any other person.

I accept that the Respondent is a registered employment agency under the terms of the Employment Agency Act 1971. 

In his evidence, the Complainant strenuously denied that he was an agency worker.  He explained in detail how he was carrying out the role of a cleaner, but it was not his position of choice.  He believed he was employed as a manager and was working ‘on site’ to gain experience of the work carried out by the Respondent at the locations of its various clients. 

I have considered the written documents in place between the parties.  The first two letters of engagement attempted to limit the relationship to that of something other than an employment relationship.  I am satisfied that the documents did not refer to the Complainant being an employment agency/ agency worker.

The two fixed term contracts also read like a contract of employment between an employer and an employee. I accept that there is reference to ‘host company / companies’ but the references are fleeting and not clear enough to reach the conclusion that the relationship is that of an agency arrangement.

I note that there is no evidence to show that the Complainant was registered as an agency worker.  No evidence was provided to me that the Respondent as an employment agency had ‘placed’ the Complainant with a hirer as opposed to provided cleaning services to the host location.  No evidence was provided to me to substantiate such any such placement or explain why the usual wording to describe an agency relationship was not used in the contracts provided to the Complainant.  No information was provided to the Complainant that he was an agency worker and the process to follow if he had a grievance in the workplace. 

I found that the wording used in the fixed term contracts supported the Complainant’s explanation that he worked on various sites that the Respondent was hired as a cleaning company.

I found that the Complainant was clear in his evidence that he was under the control of the Respondent and managers that he reported to. He believed he was hired for a role as a manager and that role was superior to the work he did.  He raised this with his managers in the Respondent and was given no indication that he was an agency worker.

In the face of this evidence, I cannot accept the Respondent’s submission that the Complainant was an agency worker. 

As the technical requirements of Section 2(2)(b) of the Unfair Dismissal Act did not apply and the Complainant was not working on a fixed term contract, the termination of his employment without any procedures fell far short of what a reasonable employer would do in circumstances where an employee having just under two years’ service was on sick leave due to an accident.  In that regard, I find that he was unfairly dismissed.

In terms of redress, I am satisfied that compensation in respect of the Complainant’s loss is the appropriate remedy.  I heard evidence and received submissions as to the earnings of the Complainant at the time of his dismissal and his efforts to mitigate his loss. I note the Complainant’s pay slip for December 2021 showed that his annual salary for 2021 was more than €33,000.00. 

Having regard to all the evidence and the submissions made, I find that the amount of compensation in respect of loss which is just and equitable in the circumstances of the Complainant being dismissed without any process while on sick leave is €16,500 being 6 months gross salary.

I find that this complaint is well founded and I award the Complainant €16,500.00.

Fixed term contract exemption.  Proof of agency worker.  Correct naming of Respondent if agency worker