ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00005008
Parties:
| Complainant | Respondent |
Anonymised Parties | A Care Worker | A Care Provider |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Request for an investigation by a Workplace Relations Commission Inspector under the Organisation of Working Time Act, 1997 | CA-00007053-002 | 09/09/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00007053-003 | 09/09/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00007053-004 | 09/09/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Part 14 Section 103(55M) of the Health Act, 2007 | CA-00007053-005 | 09/09/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 67(5) of the Property Services (Regulation) Act 2011 | CA-00007053-006 | 09/09/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00007053-007 | 09/09/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001 | CA-00007053-008 | 09/09/2016 |
Date of Adjudication Hearing: 28/11/2016
Workplace Relations Commission Adjudication Officer: Ray Flaherty
Location of Hearing: The Harbour Hotel, Galway
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 8 of the Unfair Dismissals Acts, 1977 - 2015 and Section 13 of the Industrial Relations Acts 1969, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant commenced work with the Respondent on 13 March 2015. The Complainant was employed in the role of a Care Giver, where she provided services to clients of the Respondent, as were allocated to her from time to time. |
Summary of Complainant’s Case:
The Complainant submitted that an incident occurred on 4 June 2016 in the home of clients she was providing services to. According to the Complainant a serious incident occurred, the details of which were provided at the hearing. These details are clearly of a private and confidential nature and will not be referred to in this decision.
The essence of the Complainant's complaint against the Respondent is that when she reported the incident she was not fully supported by her employer and as a result, has not been provided with any hours of work since then.
The Complainant’s complaint in relation to the termination of her employment was submitted under the Unfair Dismissals Act (CA: 00007053 – 003) and her complaint of Bullying and Harassment was submitted under the Industrial Relations Act 1969. (CA: 00007053 – 005)
In addition to the above two complaints, the Complainant also submitted complaints under the following legislation:
While all of the above complaints were listed on the Complainant’s complaint form, no evidence was presented at the hearing in relation any of these complaints.
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Summary of Respondent’s Case:
In response to the Complainant's complaint, the Respondent stated that they were very happy with the Respondent and the quality of her work. It was submitted that the Complainant was the employee of the year for 2015. The Respondent confirmed that the Complainant is, in effect, still employed, and they would be delighted for any time that she could provide to them.
However, the Respondent pointed out that their ability to provide hours of work to those they employ is dictated by the clients who are in need of the service and by the national bodies through which funding for the service is provided. Consequently, the Respondent stated that it was not in a position to guarantee hours to any of the staff. The Respondent further stated that there is a natural ebb and flow to the requirements for staff as they continually endeavour to match the needs of the clients/funders with the expectations of their staff.
With regard to incidents that may occur during the provision of the service, the Respondent stated that they always react quickly when issues are raised either by clients and/or the Care Givers. The Respondent stated that they would move quickly and take corrective action as soon as possible.
In relation to this specific incident in June 2016, the Respondent confirmed that they received a phone call from the Complainant on 5 June 2016 advising of the incident which occurred the previous day. The Respondent stated that the Complainant informed management that she did not want to continue working with the particular client involved. This request was immediately complied with.
The Respondent stated in evidence that their Operational Manager met with members of the family in question the following week. The Respondent further stated that the family apologised and, as far as the Respondent is aware, they also contacted the Complainant and apologised to her. The Respondent confirmed that this was the first incident of this nature involving either that client and/or the Complainant.
With regard to the Complainant's overall employment, the Respondent stated that, at a meeting on 10 May 2016 with her supervisor, the Complainant requested time off and also some reduction in hours over the summer period, to allow her to carry out other activities she was personally engaged in, outside of her role as a Care Giver.
In conclusion, the legal representative for the Respondent addressed both of the main elements of the Complainant's complaint. Firstly, in relation to allegation of bullying and harassment, the Respondent stated that, while they recognise the incident was challenging for the Complainant, they took immediate action and put procedures in place to deal with the matter. The Respondent also contends that the situation was satisfactorily addressed at the time.
In relation to the second element of the Complainant's complaint, that of unfair dismissal, the Respondent stated in evidence that the Complainant's part-time contract of employment had not been terminated. It was stated that she is still a member of the team. However the nature of work is part-time and fluctuating and, as such, they cannot always guarantee employment as they seek to match the needs of clients with the availability of Care Givers.
Finally in this regard, the Respondent stated that it was the Complainant who contacted them in relation to a letter which she required in order to claim social welfare.
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Findings and Conclusions:
Having been provided with the detail of the incident which occurred on 4 June 2016, I am satisfied that it was an unpleasant experience for the Complainant and can fully understand her feeling undermined and embarrassed as a result. However, it is clear that when this matter was brought to the attention of the Respondent, quick and decisive action was taken in order to address the situation. The Respondent responded positively and appropriately to the Complainant's request that she not have to engage any further with the clients.
Consequently, I find no evidence to suggest that the Respondent acted in any way inappropriately in relation to the incident of 4 June 2016. That incident was clearly a once off situation and, therefore, could not be considered to constitute bullying and harassment. I am also satisfied from the evidence that the Respondent took the appropriate steps to ensure that the Complainant was not exposed to such behaviour in the future.
It is also clear, from the detailed submission made by the Respondent in relation to the operation of the business, that the provision of work to their panel of Care Givers, is significantly dictated by external influences. Consequently, it is understandable that the Respondent is not in a position to guarantee employment and in many cases to meet the expectations and/or the specific working arrangements of their employees. Consequently, I am satisfied that the Respondent could not just automatically provide additional hours to the Complainant in a situation where she no longer wanted to work with the client whose care constituted the bulk of her working hours.
In relation to the Complainant's employment situation, I am satisfied from the evidence presented at the hearing that she had sought time off and a reduction in her hours over the summer period last year. Consequently, I am satisfied that it was the Complainant's own personal requirements, in conjunction with her request not to return to the specific clients with whom she had the incident on 4 June 2016, that resulted in her not being allocated any hours in the latter half of 2016. Therefore, I find that no termination of the Complainant's contract of employment has actually occurred.
Finally, in relation to the additional complaints listed on the Complainant’s complaint form, I found that no evidence was presented to support the claims of Penalisation under either the Health Act 2007 or the Property Services (Regulation) Act 2011.
In relation to the claim that the Complainant was not provide with notice of the termination of her contract of employment, I find that this claim fails as a result of the finding above that her contract was not terminated.
With regard to the Complainant’s claim that she was treated less favourably than a full-time colleague, I found that there was no evidence presented to support this complaint and, in addition, I did not find evidence to suggest that the Complainant was treated unfairly in any event.
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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.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.]
Having carefully considered all of the evidence adduced and based on the conclusions/findings as set out above, I find as follows in relation to the specific aspects of the Complainant's complaints:
CA: 00007053 – 003 (Unfair Dismissal) : the complaint is not upheld.
CA: 00007053 – 004 (Bullying & Harassment) :the evidence does not support the allegations being made and, consequently, I recommend that the matter falls as a result.
CA: 00007053 – 005 (Penalisation under Health Act 2007) : the complaint is not upheld.
CA: 00007053 – 006 (Whistle Blowing/Penalisation under Property Services (Regulation) Act 2011) : the complaint is not upheld.
CA: 00007053 – 007 (Lack of Notice under Minimum Notice & Terms of Employment Act, 1973) : the complaint is not upheld.
CA: 00007053 – 008 (Less favourable treatment under the Protection of Employees (Part-Time Work) Act, 2001) : the complaint is not upheld.
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Dated: 25 April 2017
Workplace Relations Commission Adjudication Officer: Ray Flaherty
Key Words:
Unfair Dismissal Bullying and Harassment |