FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEALTH SERVICE EXECUTIVE/ NORTH EASTERN AREA - AND - A WORKER (REPRESENTED BY WALTER P TOOLAN & SONS, SOLICITORS) DIVISION : Chairman: Mr McGee Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Recommendation R-035768-Ma-05-DI.
BACKGROUND:
2. The worker's case is that she was unfairly dismissed by the HSE.
The worker applied for and was successful in obtaining the post of Co-ordinator of Traveller Health Services in Cavan/Monaghan and was appointed to the post on the 15th March, 2004. Under Part 11 of the Health Act, 1970, she had to undergo a probationary period of 12 months. Her reporting relationship was to the General Manager in the Cavan/Monaghan Community Services. She also met regularly with the Development Officer, Regional Traveller Health Unit. Formal meetings took place on a monthly basis. The worker was on sick leave for he months of July, August, 2004. The employer claims that the first formal review of the worker's probation did not take place until 23rd September, 2004, and that the General Manager outlined his concern at the worker's lack of progress in achieving agreed targets, something he had remarked on in previous meetings.
A further meeting took place on the 18th of November, 2004. The worker believes that the employer had already decided to dismiss her by the time of this meeting. This is denied by the employer. The worker was offered the alternative post of Community Worker which she declined, and believes that her relationship with her employer declined as a result. The employer wrote to the worker in February, 2005, to inform her that her employment would not be renewed beyond her probation and she was dismissed with effect from the 7th of March, 2005.
The worker appealed her case to a Rights Commissioner and his recommendation was as follows:
The Claimant applied for and was successful in acquiring a very challenging role. The responsibilities of the position were clearly set out in the job description.
In accessing the claimant's performance the respondent informed of the aspects in which she was failing to do the job adequately and she was clearly warned of the consequences of failing to achieve the required standard. Furthermore, I also believe that she was given an opportunity to improve her performance. I therefore find that the claimant was not treated unfairly by the respondent.
I find against the claimant's complaint that her employer was unfairly terminated.
The worker appealed her case to the Labour Court on the 11th September, 2006, in accordance with Section 13(9) of the Industrial Relations Act, 1946. A Labour Court hearing took place 10th of October, 2007, in Cavan.
WORKER'S ARGUMENTS:
3. 1. Theworker put in an enormous effort to develop the trust and relationship with the Traveller Community and succeeded in doing so. She was not given the backup support and encouragement necessary for this very challenging role nor was she given feedback about her performance as claimed by the employer.
2. The worker was told on the 18th November, 2004, thatshe was being let go. This left her feeling very demoralised. She was not afforded the proper timeframe to prove her competence.
3. The dismissal was unfair, premature and unreasonable. The worker takes exception to the way in which documents have been produced purporting to be accurate minutes of meetings to which, in the normal way, ought to have been shown to her.
EMPLOYER'S ARGUMENTS:
4. 1. The worker was given regular feedback about her performance and she was made aware of concern about her lack of progress in achieving agreed objectives. Indeed she was formally told that she needed to make significant progress if her probationary period was to be extended. The worker agreed at a number of meetings that she was not working at the strategic level that the job required.
2. The worker was offered an opportunity to take the position of Community Worker which the employer contends was more suited to her based on her performance.
DECISION:
Having considered the extensive oral and written submissions made by the parties, the Court is of the view that the dismissal was not intrinsically unfair but that the procedures adopted by the HSE, particularly in relation to the lack of formal warnings or contemporaneous provision of agreed minutes of meetings, fell short of best practice.
The Court upholds the decision of the Rights Commissioner but varies it to allow compensation of €3,000 for the flawed manner of the dismissal.
The Court so decides.
Signed on behalf of the Labour Court
Raymond McGee
18th October, 2007______________________
CON.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.