ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00004352

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

Date of Adjudication Hearing: 28/03/2017 and 26/01/2017

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Location of Hearing: Room G.05 Lansdowne House

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 or as otherwise allowed for under the 2015 Act, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have further in the aftermath of the hearing dates carefully considered the two days of oral evidence that I have heard. Parties were allowed to present their case through their witnesses and each was allowed to test the evidence of the other side. A large number of documents were opened and I have gone through these as appropriate together with the submissions made, both written and oral. The claim is one for Unfair Dismissals and in circumstances where the fact of a termination of the employment relationship has not been denied the burden of proof rests with the Employer/Respondent to demonstrate that it has acted fairly and reasonably in all the circumstances. I can confirm that the Workplace Relations Complaint Form has been received by the WRC within the time limits specified by the Acts.

Summary of Complainant’s Case:

The Complainant has applied to the WRC on foot of a Workplace Relations Complaint Form dated the 5^th of September 2016. The Complainant is saying he was unfairly dismissed in circumstances where he says the position he had been working at for a significant period of time came to be generally advertised and was then awarded to another individual after an interview process.

The evidence has certainly revealed an unusual employment arrangement insofar as the Complainant came to be engaged by the Respondent in circumstances where the Respondent was not in fact in a position to offer a job as might be recognised in the usual way.

The Complainant had done some work with the Employer in the past. He was contacted by a member of the Employer’s ranks and told that if he was interested, his name had been thrown into the hat for a Caretaker role that might be coming up in due course. The Employer, it is agreed, had just moved premises and was now operating out of a new city centre space with public meeting rooms and extensive advisory functions and generally had many more people coming and going than the Employer had heretofore experienced. It is also common case that the Employer was to some extent under the control of the parent office which functioned out of London in the UK. Critically it seems that any such control most certainly extended to the hiring of staff – which had to be sanctioned through London.

The Complainant therefore recognised from the very start of the relationship entered into between the two parties that his position was without doubt subject to the “green light” being given in London. That having been recognised however, there does not seem to have been any particular concern that the permission would come through at some point. There were in fact two caretakers assigned to the NI branch and there had been a caretaker engaged in the premises prior to the move to the city centre location.

The Complainant expressed an interest in doing the job and was advised to attend with a Supervisor (MJ) to get details. This meeting occurred in May of 2014. MJ explained that local provision had been made for an interim method of payment as there could be no participation in payroll scheme until the position had been sanctioned by London. In the circumstances, the Claimant was paid through a system of expense and allowance claims. The Complainant says that MJ said the position would attract good overtime and a pension though MJ states that she said nothing in the meeting that would have suggested that there was a permanent, pensionable position being offered. Given that both parties knew that there was still the issue of London to give the go-ahead it must be accepted that anything MJ said could not be construed as a guarantee that this job was a certainty. It is worth noting that the Complainant did not have to compete for this interim position. It seems his reputation was such that once he’d been suggested and had confirmed an interest; his meeting with MJ was simply to go through the details and was not part of any interview process.

The position in practise turned out to be a full time one (the Employer had not initially known the level of presence that would be required). The agreement was for a 9 to 5 day for five days a week though in practise it could be up to six days. Based on the figures presented, the Complainant was in receipt of an average figure of in excess of €3,100.00 per month through the system of expense claims. There was little consistency of pattern in pay and the Complainant has explained that that is because of the overtime and weekend work. In any event, the level of pay does not suggest this was an ad hoc or casual engagement as has been proposed by the Respondent. This was a full time position which was awaiting confirmation from head office. Starting the Complainant in this way actually demonstrates some smart thinking on the part of the Employer where the Employer was de facto answerable to London for all of its decisions. Having the Complainant on site performing the function of caretaker gave the Employer great leverage for making its case for the need to have a full time Caretaker at all. The downside might well have been that London allowed too much time to pass as the cost of this employment was being sustained at a local level in Dublin (i.e. through the expenses).

Of some concern of course was the manner in which the Complainant was being paid as there can be no doubt that it was irregular in the extreme. This is evidenced in an email to members of staff (including the Complainant) from the Finance Officer dated 21^st of October 2014 under the heading “petty cash”.

The complainant’s evidence is that during this period of time he was fully confident that, subject to London getting around to approving the need for a caretaker, the job was his and there is very little by way of alternative evidence that tends to suggest that the Complainant was wrong or misguided in this assumption. The inclusion of the Complainant in the email of the 21^st of October aforesaid would tend to suggest that Keith’s ratification was merely a matter of waiting on London. In January of 2015 the Complainant was advised at a meeting that he was now being put on payroll (from February 2015) and that while this had been formally sanctioned there was still silence on whether the position had been sanctioned in London. This meeting was held with MJ’s line Manager Mr. BR. The Complainant fully accepted that the concept of a three month Contract was introduced at this time. The Complainant appears to have assumed that this was in line with what was appropriate where the sanction from London was still being awaited though London had gone so far as to allow him onto the payroll and include him in the swipe procedures.

There is no evidence to suggest that the Complainant was put on Notice of the fact that the likelihood was that when the London sanction was forthcoming then the position which the Complainant was engaged in would need to be openly and transparently advertised in line with the workplace policy. There is no HR letter confirming the position and the Complainant was not provided with a copy of the proposed three month Contract to sign or otherwise. If the Complainant was being rolled over from fixed term Contract of three month duration to fixed term Contract of three month duration – then this fact was not necessarily made known to him and the subsequent implications of this procedure were certainly not advised by his Employer through BR or otherwise.

In total the case has been made that the Complainant had four three moth Contracts from 2015 to early 2016.

In the course of his employment the Complainant said that he crossed swords with an individual who might be considered to have a public persona (Mr B). It was enough of an incident that he felt obliged to raise it with BR who recalls the issue being raised – not as a complaint but as a need for some advice. BR in his evidence agreed that he said to give it a few days for Mr. B to cool down. The suggestion appeared to be that Mr. B would through his weight around from time to time but his status was such that the Complainant had no interest in making a Complaint.

In and around February of 2016 and to his surprise, the Complainant was advised that the permission from London had come through and that his position of caretaker that he had held without reproach for the last twenty months was being openly advertised. It was RB who personally advised him and there is a conflict on the evidence of what was said at that meeting. The Complainant says he asked if he had anything to worry about? He says he was told that it was just a formality. Rightly or wrongly, the Complainant was not unduly worries about the interview process and seems to have genuinely believed that he would be getting the job. It is noted that in and around this time the Employer did provide the Complainant with a one month fixed term Contract which was to ostensibly see him through the period of time up to the interview and beyond.

It was only on the day of the Interview that the Complainant became aware of the fact that Mr. B was on the interview panel. Given their history, the Complainant should have made his unease known. Quite apart from that failure of course was the fact that BR was also on the panel and also knew that there was history between the Complainant and the same Mr. B and he too opted to say nothing. This speaks to a disinclination to cross Mr. B.

The Complainant was unsuccessful in his application and another individual was awarded the Contract of Employment which was taken up in due course.

In the aftermath, the Complainant did make a complaint to HR about the manner in which he was treated but this met with very little comfort

Summary of Respondent’s Case:

The Respondent’s case is that the Complainant knew that there no Guarantees that this was his job. There was always an obligation on the Employer to follow recognised protocol for the advertising and hiring of this as with all positions. The Complainant it is contended knew this fact.

Findings and Conclusions:

There is no evidence to support the contention that the Complainant was on notice of the fact that his job, once confirmed, would be in jeopardy. The Complainant was given the impression that his having made himself available to work from May of 2014 was a job offer made and accepted save insofar as both parties recognised that the ultimate sanction for the Complainant in this position would come from London. The email from the Finance Officer is very telling in this regard. The Complainant herein worked for a twenty month period only then to be told that the job was not his and was in fact going out to public advertisement.

The Respondent employer was not entitled to treat the Complainant with so little regard and the interview process which was set up does not in any way ameliorate the unfairness with which this Complainant has been treated. That the interview panel was made up with persons who might objectively be deemed to have had a bad opinion of the Complainant and this fact was known to another panel member compounds the unfairness of the interview process.

It is in these circumstances that I find the Complainant to have been unfairly dismissed pursuant to the Acts.

Decision:

The Complainant has not demonstrated exhaustive efforts to find alternative employment and it is incumbent on me to bear this in mind in awarding him a sum of €25,000.00.  

Dated:   15/06/2017

Workplace Relations Commission Adjudication Officer: Penelope McGrath