ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003014

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 21/09/2016

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 41 of the Workplace Relations Act, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Attendance at Hearing:

Complainant’s Submission and Presentation:

Respondent’s Submission and Presentation:

The Respondent is a private employer and not subject to Section 39 of the Health Service Act. The Respondent has no obligation to the Respondent to employ her as a Nurse as it was not a party to the agreement. The Respondent bore no cost of the sponsorship and was not a beneficiary of the agreement. The original intention of the Sponsorship programme related to approximately 30 posts none of which involved the Respondent. The Respondent just facilitated the Complainant with the time off to do the course. The HSE was the sponsoring body and not the Respondent. The Respondent has no vacancies for a Nurse and even if it did it would be subject to their own employment selection procedures, including post registration experience. This is evidenced by the Respondents recruitment campaigns in 2006, 2011 and 2016 which requires Nurses to have a minimum of two years post graduate experience. The Respondent maintained the Complainants positon open for nearly nine years while she completed the course. The Respondent is not the employer within the meaning of HSE Circular 009/2006.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

This Hearing focused more on the contractual issues between the parties and the IR issues were less well developed, by both sides, during the Hearing. It is in that context that I will focus my decision on the contractual relationship between the parties.

The Complainant is seeking to rely on a document titled “ Service Commitment in respect of the payment of sponsorship for the Pre-Registration Nursing Degree Programme”. This document states in clause (b) that the Complainant will “ Work as a Nurse for my current employer for a period of five years thereafter” (Thereafter referring to the successful completion of the four year Nursing Degree Programme). It also states “I also fully understand that if I fail to honour my written undertaking to work as a nurse for the Public Health Service agency for a period of five years following the successful completion of the Nursing Degree Programme, I shall be required to repay the HSE West, on a pro rate basis, the value of the salary received….” From a contractual perspective this is an application form to the HSE for sponsorship as at the end of the document it is signed by the Complainant in the space above the word “Applicant”. It is signed “in the presence of” the Respondents Director of Nursing. It is not a contractual agreement between the Complainant and the Respondent. Nowhere in the document is the Respondent mentioned as a party to the application. Nowhere in the document does the Respondent legally commit to anything and does not to hiring the Complainant as a Nurse after the course is completed. There is no contractual relationship formed in the document between the Complainant and the Respondent. I am not in a position to go into the context of what the Respondents Director of Nursing had in mind at the time she signed the sponsorship agreement but it certainly does not commit the Respondent to employing the Complainant as a Nurse after the course is completed. The signature by the Respondents Director of Nursing is only to say that the Complainant signed the application in her presence. The Respondent is not a Pubic Health Service agency as documented in the application. It appears to me, albeit with limited knowledge of the scheme, that the scheme was intended for non nursing staff in the Public Service to become Nurses after completion of the course. How a private sector employer employee got accepted onto the scheme is not an issue for me to evaluate but it seems unusual the HSE Circular 009/2006 specifically states the following four bodies as providing the sponsorships:

HSE Dublin/Mid Leinster

HSE Dublin/North East

HSE West

HSE South

The core issue in this case is that the Complainant is seeking to enforce an agreement (technically it is not an agreement as it is only signed by one party) with the Respondent and unfortunately from the Complainants perspective the Respondent is not a legal party to that agreement/application and therefore the Respondent can legally absolve itself from the terms of the application/agreement. It appears to me that the objective of the Scheme was to qualify Nurses for the Public Service or Government fully funded public service health providers and not private employers. For the above reasons I find the Complainants case not well founded and as per my initial comment about the context of the Hearing submissions I have no further recommendations to add in the case.

Dated: 7/11/2016