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Labour Court Finds an Employment Agency is the Proper Respondent in Unfair Dismissals Case

AA Euro Recruitment Limited and Padraig Cotter UD/20/143

Facts: This Labour Court hearing concerned a ruling on a preliminary issue of who was the employer of the Complainant security guard for the purposes of the Unfair Dismissals Act (the “Act”). The Respondent, an employment agency, argued that the operator of the wind farm which the Complainant guarded was the proper Respondent for the purposes of the Act instead of the agency.

The substantive issue in this case, the alleged unfair dismissal of the Complainant in November 2019, was not dealt with by the Labour Court in this ruling. Instead this hearing focused solely on who was the proper Respondent.

The Respondent, AA Euro Recruitment Ireland Limited, is a registered employment agency and argued that the Complainant registered with them on 3rd February 2018 with a view to being placed on a client site. He was placed with Careys Building and Civil Engineering, which the Labour Court referred to as Company C.

The Complainant disputed this and argued that he was directly employed as a Security Officer with the Respondent.  He argued that he was not told nor was he led to believe that he was registering as an agency worker rather than taking up employment with the Respondent. He said that he had applied for and was hired as a “Static Security Guard” as advertised on 24th January 2018 in an advert that did not mention that the Respondent was an agency and was paid by the Respondent and that the name on his uniform was the Respondent’s name.

 He argued he had no contact with “Company C” on a day to day basis as he patrolled what was a large spread out site at night without their supervision. Aside from an induction health and safety course he alleged he had no direct contact with them. He received his roster weekly from the Respondent and reported any issues to the Respondent. However he also seemed to have limited contact with the Respondent aside from these interactions.

The witnesses on behalf of the Respondent stated that when it agreed on a procurement order with its client, that it agreed that Company C would give instructions on the work they require to be done by the workers. He said that the Complainant was informed that it was a temporary position but accepted that he was not explicitly told that he was an agency worker.

Importantly, the Complainant’s contract did not state that the Complainant was an agency worker nor that they would be under the control of any client and that it referred to him being assigned to various ‘sites’ rather than ‘clients’. The contract between the Respondent and Company C did not set out that the security guard assigned would be under Company C’s direction but just that they would adhere to the site’s health and safety rules and site management directions.

Decision

Ultimately the Labour Court reviewed the relationship between the Complainant, Respondent and Company C, with specific emphasis on what level of control the two companies had on the Complainant and found that there was a direct employment relationship between the Complainant and Respondent when the Complainant was assigned to Company C’s site and that the Respondent was his employer for the purposed of the Unfair Dismissals Acts.

The Labour Court was influenced by the Complainant’s contract which did not mention that he might be an agency worker and the advertisement for the position he took up which similarly did not mention agency work.

Key Takeaways for Employers

Where an Employer is using agency workers or is an agency themselves particular care should be taken to ensure the relationship is clearly set out in writing to everyone involved, especially where agency workers may be assigned to a single client for an indefinite period of time, as this is where disputes are most likely to arise.

Employers should be aware that in this case the Labour Court specifically referenced the lack of a disciplinary/termination clause in this contract and that there was no clause setting out that the Respondent was not the employer for the purposes of the Unfair Dismissals Acts.

Link to Decision – https://www.workplacerelations.ie/en/cases/2021/february/udd2112.html

Author – David Murphy

25th February 2021

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2

www.aocsolicitors.ie

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