Complainant

Respondent

Parties

Joseph  Hayden

Kilkenny & Carlow Education & Training Board

Representatives

Self-represented 

IBEC

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-00069308-001

14/02/2025

The complainant submitted a complaint of Unfair Dismissal to the WRC which was received on 14th February 2025. The respondent representative raised two preliminary issues in the written submission, that the respondent was not the correct employer and that the complainant was out of time when he lodged the complaint with the WRC.

Summary of Mr. Hayden’s Evidence

The complainant gave testimony that he was employed by a third-party company since August 2019. He was a carpenter by trade and worked as a caretaker on the respondent’s site and another site. He outlined the type of work he carried out with the majority of the work on the respondent site.

The complainant was asked whether he was employed by an agency as per Schedule 3, Section 13 of the Unfair Dismissals Act. He was allowed time to read the relevant section of the Act. He was unsure whether the third-party company was an agency under that section of the Act.

Mr. Mc Kenna raised two preliminary issues in the written submission. The first that they were not the correct employer, and the second that the complaint was out of time. At the hearing, he raised a further preliminary issue that as the complainant was still employed by the third-party company that there was no ‘dismissal’.

He submitted that the complainant in his submission had said he was employed by a third-party and that the Human Resources Manager of the third-party company had confirmed he was their employee. In the submission, the respondent was relying on CIE Tours v. John Byrne UDD1852 that the relationship with the respondent was as a “contractee”.

The respondent requested the Adjudicator to consider the preliminary matters prior to proceeding with the substantive complaint.

Relevant Law:

The Unfair Dismissal Acts, 1977-2015 (“the Acts”) defines “dismissal” in relation to an employee as including the termination by the employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee.

Finding on the Preliminary Issues

Both parties were informed at the hearing that I would consider the preliminary issues as they may be determinative of the case. If the decision was that I had jurisdiction, I would reconvene the hearing. If I decided I had not jurisdiction, I would issue a reasoned decision to this effect.

As the complainant confirmed in testimony that he was not an employee of the respondent, the only other instance under which the employer could be liable was under Section 13 of the Act where an ‘individual shall be deemed to be an employee employed by the third person under a contract of employment’.

Even though the complainant could not verify whether he was employed under an employment agency within the meaning of the Employment Agency Act, 1971, I reviewed the registered agencies and the third-party company is not on the listing.

Under the above circumstances, and as the complainant is not an employee of the respondent, I decide that I have no jurisdiction to hear the substantive complaint against the named respondent. As the WRC Complaint Form cites the wrong employer, there is no requirement to consider the other two preliminary issues raised by the respondent representative.

I decide I have no jurisdiction to hear the substantive complaint under the Unfair Dismissals Act.

Wrong Employer