ADJ-00005339

ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00005339

Parties:

Complaint(s):

Date of Adjudication Hearing: 08/05/2017

Workplace Relations Commission Adjudication Officer: Roger McGrath

Location of Hearing: Room 4.02 Lansdowne House

Procedure:

In accordance Industrial Relations Acts 1969-2015 and following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.

Background:

The Complainant commenced employment as a sport therapist with the Respondent, a natural healing centre, on 4^th April 2016. He was paid between €450 and €500 gross per week and worked 30 hours a week. The complainant was dismissed on 29^th September 2016. The Complainant referred a dispute to the Workplace Relations Commission on 6^th October 2016 alleging he had been unfairly dismissed.

Summary of Complainant’s Case:

The Complainant believes that he was unfairly dismissed from his job.

The Complainant stated that he was a vocational therapist and that he had done an excellent job for his employer. He had shown colleagues new ways of working and the clients were happy with him.

After three or four months he was told he had to get insurance cover, which he could not understand as he felt it was up to the employer to provide insurance cover.   The Complainant said that he signed something but he did not understand what was in it. There were a number of meetings with the Respondent regarding his performance but the Complainant was not told by the Respondent that he would need an interpreter; he says the Respondent brought an interpreter to the last meeting.

The Complainant stated that he believes he was 'fired' because he was not certified by the OCI. When asked why he could not get certification from the OCI the Complainant stated that he could not get access to some documents, which are in Spain.

The Complainant said he had letters from the hotel where he had worked to validate his experience and qualifications.

The Complaint also denied that he had carried out osteopathic massages after being told not to do them by the Respondent.

The Complainant also stated that he thought the disciplinary process was unfair; he did not understand what took place at the meetings.

Summary of Respondent’s Case:

The Respondent presented a written submission with extensive papers.

The Respondent is a natural healing centre, established more than 20 years ago. It provides a range of medical and wellbeing treatments.

The Respondent submitted that the complainant commenced employment with the Respondent on 4^th January 2016 following an interview, a declaration of qualifications and submission of documentation which he offered as supporting evidence of his professional qualification and fitness to practice. This documentation included a CV, a Certification in Sports Massage, as well as a reference from his previous employer. He presented as a qualified osteopath, and promised to confirm formal approval of his credentials through the Osteopathy Council of Ireland (OCI).

As the qualifications submitted originated in Spain it was very important for the Respondent that the Complainant's qualifications would be approved by the OCI as certain therapies can only be practiced by qualified and experienced practitioners. The Complainant was instructed not to practice any osteopathic manipulations in advance of the requisite approval from the OCI.

Despite numerous requests from the Respondent, the Complainant failed to provide validation/approval of the qualifications he had claimed he possessed. Enquiries to Spanish authorities made by and on behalf of the Respondent, as well as requests to the employer referenced by the Complainant failed to confirm the veracity of the testimonies and certifications claimed.

In the interim the Respondent's insurance broker advised that cover could not be provided for the Complainant to practice as he had not submitted the necessary validation of the qualifications or experience claimed, nor had the OCI been able to issue its approval due to the lack of supporting evidence of qualification or experience in practice necessary to permit practice in Ireland.

In the absence of validation/approval the Respondent was obliged to direct the Complainant not to practice osteopathic manipulations, and because of his apparent breach of this direction was compelled to have him sign a formal acknowledgement of this direction.

The Respondent submitted that despite this undertaking the Complainant, as reported by clients, had applied a number of osteopathic manipulations and in one case was responsible for client distress. Written testimony from a number of clients formed part of the basis for application of a formal disciplinary process. This process also addressed two allegations of misconduct when the complainant left the treatment centre despite being scheduled to provide massage treatments. The Complainant was suspended pending a disciplinary hearing.

A disciplinary hearing took place on 25^th September 2016 in line with the necessary components of fair procedure. A decision to dismiss was taken by the Respondent and the Complainant was informed of this in a letter of dismissal dated 29^th September 2016. The Complainant was informed of his right to appeal the decision but did not do so and chose instead to refer the matter to the Workplace Relations Commission under the 'Industrial relations Act' alleging "Unfair Dismissal" but without identifying what particular industrial relations statute is applicable or under which he is seeking remedy.

In direct evidence the Respondent stated that she had made several attempts to verify the Complainant's qualifications but was unable to do so. She also stated that the Complainant had good English.

It is the Respondent's case that the complaint case is misconceived, lacks the necessary specificity and is a speculative manoeuvre to achieve a payment of some kind.

The Respondent contends that the Complainant's contract of employment is voidable as he was employed on the basis of deliberate misrepresentation.

The Respondent also puts forward that the Complainant was given the opportunity to challenge the basis on which his employment was terminated, through the medium of a formal disciplinary process, characterised by fair procedure, which he chose not to complete.

In closing the Respondent stated that she had lost all trust in the Complainant and could not allow him continue working in her business.

Findings and Conclusions:

Although the Complainant did not specify under which Industrial Relations statute his claim is made I do not believe this excludes him from taking this case nor I from adjudicating it.

I have carefully considered the evidence adduced at the hearing. At the core this case revolves around the validity of the Complainant's qualifications. He was recruited as an osteopath yet months after he commenced work he could still not produce the necessary credentials to get approval from the OCI. The Complainant stated that the reason he could not get approval from the OCI was because the documents necessary to get it were in Spain. The question must be asked, why these documents, if they do exist, could not have been sent over from Spain. The lack of such qualifications, or proof thereof, does in my view void the contract of employment.

In addition the Complainant ignored instructions not to carry out certain procedures, having signed a document to that effect. In a number of cases this lead to serious complaints being made to the Respondent and jeopardising the centre's good reputation.

The Complainant also questioned the fairness of the disciplinary process and indicated that his lack of English tainted the process. Having heard the Complainant speak and accepting the evidence of the Respondent I do not believe that language was a barrier to his understanding of what was going on.

The paperwork submitted by the Respondent also supports the case that the disciplinary process was carried out in a fair way, in line with the Respondent's own written Disciplinary rules and Procedures.

It is my view that the Complainant brought his dismissal on himself by his inability to prove his credentials and by failing to adhere to clear instructions to which he had agreed.

Decision:

Section 13 of the Industrial Relations Acts, 1969-2015 requires that I make a recommendation in relation to the dispute.

In view of my Findings above I find the Respondent acted fairly in the circumstances.  

I do not recommend in favour of the Complainant that he was unfairly dismissed.

Dated:   11 July 2017

Workplace Relations Commission Adjudication Officer: Roger McGrath

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