A recent case before the Workplace Relations Commission has highlighted the difficulties that can arise where agency workers make a claim for unfair dismissal.
Background
In an Agency Worker v An Employment Agency (ADJ-00019796) the Complainant was engaged by the Respondent agency on the 24th of October 2016 and was place in a Healthcare Assistant position with a customer of the Respondent.
She was let go from her position on the 26th of October 2018 and subsequently made a claim for unfair dismissal against the employment agency. The agency deny that any dismissal took place as despite the fact that she had been placed on site with a health service provider, they were her employer and she remained on their books.
Breakdown in Trust
During the course of her placement with the health service provider, an incident occurred on the 22nd of October 2018 which led to a breakdown in trust between the service provider and the Complainant. Following this incident, they no longer wished for the Complainant to be placed on that particular site. This was communicated to the Complainant and the Respondent.
The Complainant remained on the Respondents books and they made attempts to relocate her to another site that would be suitable for her. The Respondent also made several offers of shift work to the Complainant, some of which she accepted and some of which she did not.
In early February 2019, a Manager for the Respondent spoke to the Complainant and she confirmed that she had taken up employment elsewhere but she never formally resigned from her position. During the course of this phone call allegations of bullying were also made toward the Respondent Manager.
Decision
Having considered the arguments of both parties, the Adjudicator found that for the purpose of an unfair dismissal claim, the Respondent had been incorrectly named. Pursuant to Section 13 of the Unfair Dismissal (Amendment) Act 1993, the hirer (in this case the health service provider) is the correct Respondent in any such claim before the Workplace Relations Commission. On this basis, the claim was not well-founded.
Key Point
IF you are an agency worker and you believe you were unfairly dismissed you shall consider obtaining legal advice. Most likely the party responsible for your dismissal is the company/employer where you were sent by the agency. There are however other aspects where it will be correct to name the agency as responsible. As a result it may well be the case that both: the agency and the company/employer where you were directed to perform work will be named as Respondents in your case.