EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Betty Maher UD1185/2013
-claimant
against
HSE
-respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. N. Russell
Members: Mr. J. Hennessy
Mr. P. Trehy
heard this claim at Portlaoise on 2nd October 2014
Representation:
Claimant: Ms Susan Jones BL instructed by Mr. Simon Earls, Jones Magee,
Solicitors, 1 Eglinton Road, Bray, Co Wicklow
Respondent: Mr. William Toomes HR Department HSE Area Office,
Arden Road, Tullamore, Co. Offaly
Claimant’s case:
The Tribunal heard evidence from a witness for the claimant. The Tribunal heard evidence from the claimant. She worked for the respondent as a home help. She gave evidence as to her working hours and conditions. She also explained how the hours and conditions changed over the years. They changed because her work was directly connected to the clients who needed home help. She also explained that one of the clients that she had was a difficult person to deal with and that she had asked to be removed from having to provide help for the client to no avail.
The claimant explained that the carers could cover for each other’s hours if needed to for example if one had to go on leave or was sick. However this changed in May 2012, whereby the helpers were told that they had to stick to their own contractual hours and could not cover each other’s hours.
The claimant did meet the home help co-ordinator and the claimant told the Tribunal that the co-ordinator told her that she was terminating her contract.
Eventually the claimant left her employment in 2013, because she had not been getting enough hours and the difficulties with clients.
Respondent’s case:
The Tribunal heard evidence from a witness from the respondent who is the home help co-ordinator. Regarding the hours of the home helpers being changed she explained that the management of the respondent directed that all of the home helps hours be brought back into line with their contracted hours. This applied to all of the home helpers and not just the claimant. Regarding the challenging client that the claimant referred to she agreed that the client was a challenging client, however the client is still receiving home help. If the home helps complained they put in place two home helps for that client.
The witness denied that she told the claimant that she was terminating her contract.
Determination:
In this case the Claimant terminated her own employment by letter dated the 26th of April 2013 and claims before the Tribunal that she was constructively dismissed.
The Claimant cites two reasons to her decision to terminate her employment namely (a) that her hours were significantly reduced without her agreement and (b) that she was required to continue to work with a Client who was extremely abusive and challenging in circumstances where she felt that her concerns were not addressed by the Respondent.
The Tribunal has considered this latter issue first. The Client was assigned to the Claimant under a Specific Purpose Contract. The nature of the duties of a Home Help can certainly be extremely demanding. The Respondent faced the significant challenge of discharging its Statutory Duties while balancing this with the health and safety requirements of its staff. This was certainly an issue for the Claimant, however, it is the Tribunal’s view that as her Contract was a Specific Purpose Contract as regards this Client (and two others) and that any termination by her of her Contract in this regard would not entitle her to maintain a claim for compensation.
The Claimant’s principal issue which appears to have led to her terminating her employment was the significant reduction in her working hours.
The Tribunal considered this issue at considerable length. The Contractual relationship between the Parties was governed by a Specific Purpose Contract naming three specific Clients. While the Contract was not before the Tribunal, the Claimant accepted that she had signed this Contract. This was preceded by a similar arrangement as regards a Client who subsequently went into respite care though the Parties could not agree as to whether this Contract was in writing.
It was advised to the Tribunal that those Home Helps on Specific Purpose Contracts also received additional assignments for Home Help services when demand so dictated and funding was available.
In the event, with significant cut backs, this additional work dried up with a reassessment of Clients and significant adjustments in the services provided and the Claimant and her colleagues thereafter continued to discharge their duties under their Specific Purpose Contracts. The Tribunal cannot ignore the financial constraints within which the HSE operates and the realities of the financial considerations that dictate its Policies and provision of services.
On balance, the Tribunal prefers the evidence of the Claimant’s witness as to the nature and background to the foregoing arrangement and that the Contractual relationship between the Parties was governed by the Claimant’s Specific Purpose Contract. Significant between the two streams of work is that the Claimant was contractually bound to provide her services to the three named individuals named in her Specific Purpose Contract. She was not, however, obliged to accept any additional Clients unless she wished to do so and, indeed, was free to pursue private work which she did. The arrangement as regards additional work lacked a certain mutuality of obligation in this regard.
In the circumstances the Claimant’s case fails in that the Respondent at all times complied with its contractual obligations to the Claimant under her Specific Purpose Contract.
The claim under the Unfair Dismissals Acts, 1977 to 2007, fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)