Complainant

Respondent

Anonymised Parties

A Housekeeping Assistant

A Health Service Provider.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts (withdrawn on day of hearing)

CA-00016008-002

24/11/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00016008-003

24/11/2017

This is a claim in respect of an unfair dismissal on foot of lodging a protected disclosure. The claim is denied by the Respondent. On 24 November,2017, the WRC raised some concerns in response to the first submission of the complaint. At that time, the complainant had raised an issue in respect of a statement of terms of employment. The Complainant amended his claim form on January 10,2018, the claim in respect of the Terms of Employment(Information)Act ,1994 was withdrawn.

The Respondent made oral and written submissions seeking clarification on a perceived duplication of claims in respect of the Industrial Relations Acts and the Unfair Dismissal Act. On the day of the hearing, the complainant clarified that he was advancing his case solely as an unfair dismissal claim under the Unfair Dismissals Act.

CA-00016008-002 Industrial Relations Act 1969 was withdrawn.

Both parties made extensive written submissions in advance of the hearing, which I found helpful.

Prior to the commencement of the hearing, I flagged with both parties that I had worked as a Union Official for the Nursing and Midwifery staff covering this area up to three years ago. I asked the parties if they had any objections to my hearing the case? There were no objections.

The Complainant presented as a Lay Litigant and the Respondent was represented by Solicitor and Employee Relations Manager. The Complainant had one witness in the case while the Respondent had three named witnesses and provided one witness to the hearing.

The Complainant gave an extensive outline of his case. He had recently completed a health service care course with distinction. He submitted that he had interviewed for the position of Housekeeping Assistant for the respondent hospital during April 2017. It was a 39 hr week position in return for a salary in the range of 26,000 euro per annum. He was placed 9th on the panel of successful candidates. From early June 2017 the appointment process commenced by way of an extended exchange of related documentation.

On June 8,2017, the complainant received a request to start in the position the next day. The complainant expressed his reservations in the face of an incomplete appointments process, but was reassured and undertook to commence work the following Monday, June 12. He understood that the area was short staffed and he was keen to help. He was given details of what to wear at work.

He commenced work as planned. He had concerns that the Hospital wasn’t ready for him as he had to park in the public car park and he was requested to keep personal documents on his person pending allocation of a locker. He had a swift induction, a rest break then commenced his cleaning duties accompanied by a colleague he was to shadow for the day.

Shortly after arrival to a ward, the complainant discovered an issue surrounding infection control on the ward and sought to raise it with his colleague and was unhappy with the response he received. He had some prior knowledge of the issue raised from the course he had recently completed. He determined that he would not engage in cleaning without the proper protective clothing and left the ward. He sought to contact the Housekeeping Managers without success. The Complainant then went home shortly after 1pm.

He later sent an email to the Housekeeping Manager, Ms A advising why he left. He received a missed call and voice message in return but it was too late to return the call.

On June 14,2017, the Complainant submitted a protected disclosure complaint by letter and handed it to main reception. He was advised to send a copy to Nurse Management and did so the following day.

Ms A, Housekeeping Manager emailed the complainant on the same day and confirmed that the complainant’s personal documents had been shredded at his request. The Complainant submitted that he had raised his concerns on infection control with the external Regulator.

On June 16,2017, Ms A sought to meet with the complainant to address his emails and his protected disclosure letter. He refused at first and then agreed to attend. He was taken aback that both Ms A and her Nurse Manager colleague did not seem to appreciate his concerns regarding the infection control issue. They agreed to resolve the issue and invited him to “restart his position” outlining that some uncertainty and “chaos” had surrounded his first experience at work.

However, his “restart” was to be contingent on his signing a pre- typed memo indicating that his complaints to the regulator and hospital management had been resolved. The Complainant agreed to this. He submitted a copy of emails sent to the regulator and Ms A on 16 June at 16.23 hrs and 16:09 hrs.

“I sent a concern I had about X Hospital through your website. Following a meeting with the hospital, I would like to withdraw my concerns “

The Complainant awaited a return to work date, which was delayed for a myriad of reasons.

June 26   Awaiting new lockers

June 27   Contract will issue when you recommence

July 4         July 17 start date

July 10       Complainant wondered if a planned visit to occupational health department would lead to an amendment in his start date?

July 10     July 24 start date.

July 17     July 31 start date

July 27       Complainant sought start date of August 4 (Mother ill)

The Complainant submitted that Ms A phoned him on August 2 and agreed to his revised date. Some discord followed and she hung up on him.

August 10 Chased up start time

September 7 -14     Sent email complaints on infection control issue. Approached Regulator again.

October 4 -17     Followed up directly with Hospital management on complaints and his own treatment.

October 31 The Complainant submitted that he raised his concerns with more senior managers and the Minister for Health. He also sought political representation.

On November 20, 2017, the Complainant received a letter from Hospital Management which determined that he been afforded multiple opportunities to recommence employment. The letter summarised the position as “……. It is reasonable at this stage for Hospital management to accept that you will not be availing of the opportunity provided to you to return to the hospital and you have, in effect terminated your contract of employment with effect from 12 June 2017.”

The Complainant responded two days later and disputed most of the letter and reaffirmed that he wished to his case looked at by external regulators of health and safety, employment and patient safety.

The Complainant contended that he had been discriminated for making a protected disclosure. The Complainant told the hearing that this protected disclosure was now being addressed by external overseers. He submitted that the hospital had no intention of giving him a new start date after June 16. He had gone to extraordinary lengths to restart at the hospital but now believed that he wasn’t wanted there. The matter was gravely serious for him as he had vetoed two other offers of employment in the interim. He was currently subsisting on 193.00-euro department of social protection payment per week. He sought the remedy of re-instatement/compensation.

During cross examination:

The Complainant confirmed that he had walked away from his post after 3 hours. He had not completed the Respondent induction programme. He confirmed that he had sent an email at 13.08 hrs on 12 July which stated “sorry, but the job is not for me “. He accepted that he left the position.

The Complainant confirmed that he agreed to a conditional return to work following the tri partite meeting of 16 June 2017.He was to cancel his complaint to the Regulator.

He reaffirmed the detail surrounding the delayed return dates over the course of the summer via service annual leave, documents waited for appointment, lockers and uniforms being ordered. He confirmed that the discord on 2 August call with Ms A resulted in him saying

“Just forget about it …I don’t want to work in a hostile environment”.

He offered to post back his security pass. He was taken aback when he was requested to refrain from sending further emails. He had retained details of his staff number.

The Complainant continued to hold out hope of a start date. He confirmed that he had sought pottering work at the hospital during September 2017 but had been unsuccessful in this regard.

In closing, the complainant submitted that as far as he was aware his employment had not been terminated on June 12 and he remained an employee, even to the point where he sought clarification of his position in August. His protected disclosure investigation was ongoing and he was awaiting a revised start date. The Complainant concluded by re-affirming his claim for unfair dismissal. He submitted that he had lost 10 months’ salary to date of hearing and reaffirmed his redress option as re-instatement/compensation

I have given careful consideration to both parties oral and written submissions. During the hearing, I listened to and heard details of a very concise employment experience of 3-4 hours but equally of a highly complex and elaborately protracted residual set of circumstances which culminated in a complaint to the WRC on 24 November 2017. It was clear at the hearing that the complainant had interfaced with other bodies. My sole focus in this case is to decide whether the complainant has been unfairly dismissed attributable to his submission of a protected disclosure? The fact of dismissal is disputed.

This prompted me to examine the foundation definitions set out in the Legislation.

1.The Unfair Dismissals Act at Section 1, defines an employee as

Means an individual who has entered into or works under (or where the employment has ceased, worked under) a contract of employment and,

Employer is defined as:

Employer in relation to an employee, means the person by whom the employee is (or in a case where the employment has ceased, was) employed under a contract of employment……

2. A contract is defined as:

A contract of service, whether it is express or implied and (if it is express) whether it is oral or in writing.

3. A Dismissal is defined in relation to an employee as:

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee

The Protected Disclosure Act 2014 prohibits penalisation in respect of a protected disclosure. Penalisation is defined in Section 3 of the Act and means:

Any act or omission that affects a worker to the workers detriment and includes:

Suspension, lay off, dismissal, demotion, loss of opportunity for promotion, transfer of duties, disciplinary action, unfair treatment, coercion and threat of reprisal amongst an extended list.

This Act is accompanied by the Statutory Instrument 464 of 2015: Code of Practice on Protected Disclosures Act,2014. Which is aimed at helping workers understand the law in relation to the disclosure of information relating to wrong doing detected in the workplace.

The protection of the Unfair Dismissals Act does not normally apply to employees in possession of less than 12 months continuous service. Section 6 (2) provides for an exemption to this bar in the event of protected disclosure.

Preliminary Issue:

The Respondent has disputed that the complainant enjoyed employee status at any time outside the morning of June 12,2017. The Complainant was clear that he did not resign, had in fact made several attempts to restart at the Hospital and was instead terminated by the respondent letter of November 20,2017.

I took time to consider the volume of documents submitted by both parties in this case. I found that this was a workplace experience bereft of employment related documentation. I did not see the offer/acceptance of employment, but I accept that this was a permanent job offer, as this was not disputed in oral evidence. I note that the complainant was placed at number 9 of a panel for housekeeper assistants.

There was no contract of employment or documentation in contemplation of same. There were no pay slips as the complainant told me that he had not been paid nor had he sought payment. I found this point remarkable. In short, there seems to be no record of the complainant at the respondent employment outside his testaments on his experience there and an expansive exchange of emails between the parties. The Respondent had retained and submitted two notes to file.

This has made the process of identifying whether the complainant was in fact an employee or otherwise for the purposes of the claim quite challenging as in the absence of foundation documents, I had to rely on the evidence adduced by the parties.

Having taken some time on this deliberation, I must find that the complainant was an employee for the purposes of Section 1 of the Act.

·         He was offered and accepted a position of Household Assistant at the Respondent hospital.

·         The preparatory administrative exercise of accompanying documentation was in train, but incomplete by June 12.

·         The Complainant agreed to the start date of June 12. He undertook three hours of work and received a shirt from the respondent which did not fit. I found this to be a verbal agreement of employment

In making my decision, I took note of Wishart V National Association CAB [1990] ICR 794 where an offer of employment was made conditional on satisfactory references. The references secured were found to be unsatisfactory and the offer of prospective employment was withdrawn. No employment followed. The Respondent here had sole responsibility for hiring employees and I found the process surrounding the complainant’s appointment to deviate significantly from best practice. This process should not be repeated.

In the instant case, the complainant commenced employment prior to the completion of the administrative process. He was correct to have reservations in this regard but he agreed to the June 12 start. I have found that the Complainant had employee status from June 12 ,2017.

The Dismissal:

I have found that the complainant was very keen to start his new job. He had excelled on his health care course and had clearly retained a high level of zeal on his impending position at the hospital. He had a strong sense of the way things should be done in a clinical setting.

The Respondent by their own admission regret the precipitous employment. They had service needs and assumed that the complainant would assist in summer cover and the administration of the contract of employment would somehow follow. There were just too many “ maybes” here .

The Complainant had submitted a number of documents to the WRC asking for them to remain for the Adjudicators consideration . I can confirm that as a vital part of fair procedures , all documents were shared with both parties .

The employment experience at the heart of this case was very short and did not benefit from the standard training and induction module given in Ms As evidence at hearing. I heard that this was planned for the complainant. This would have assisted greatly in this case and the vacuum was regrettable. I accept that the complainant was overwhelmed by his experience at work on his first day. However, I began to review the chronological sequence of events attributed by both parties to that day.

The Complainant told me that he commenced work at 9.30 am, had a brief induction, an unproductive visit to occupational health( he was not expected there ), a break and started on the ward cleaning rota. He received a brief introduction to the hospital bleep system and was placed shadowing a colleague. Shortly after this he became concerned about an issue of infection control and sought to raise it unsuccessfully with his colleague. I was troubled by the complainant’s lack of recourse to bleep contact with a supervisor at that point. I found it strange that he would take the stark step of leaving his posting, the ward and the hospital without leaving a real-time reason for this or allowing any of the staff to assist him . I can accept he perceived a theory /practice gap on the ward. On balance I find that he should have done more on that day to resolve the matter i.e. completion of an incident form or discussion with ward /supervisory staff.

On the respondent side, I found the management of the complainant’s departure to be prompt in response to his sudden departure. I reviewed the 13:08 hrs email received from the Complainant. I had some difficulty with this email from a sequential point of view. The Complainant told me that he sent the email from home in the aftermath of his recovery from his experiences at the hospital. The Complainant resides over 40 minutes away from the hospital which would suggest that he left the hospital much sooner than 1pm. He also submitted a written submission that it aws sent from the car park .This email was ambiguous. The Complainant stated that “sorry but the job is not for me” coupled with his sudden unexpected departure certainly puts finality to any verbal agreement on employment. He stated that he didn’t expect to “be thrown in at the deep end” but was grateful for the welcome he received.

I found it unusual that the complainant relied almost wholly on email communication. I accept that electronic communication is a vital modern communication. However, it is a one sided medium and is not a substitute for human interface in an employment matter.It is important to hear both sides .

I then considered the follow up email sent by the complainant at 19.12 hrs. The complainant outlined his difficulties at work that day. He expected induction, had difficulty with infection control, expected a locker, disappointed with offer of one shirt, incomplete appointment documents. He expressed that a Porter role might be a better fit.

The last line of the email stated:

“Thank you for giving me the opportunity and I am sorry if I wasted your time”

I formed the view that this was conclusive proof that the employment had ended. I took it that the complainant had stood away from the position of housekeeping assistant by his words and his actions.

I found that the Respondent should have committed this to formal communication at that point. The matter was regrettably allowed to drift.I accept that the Respondent acted on the complainants request to shred his confidential documentation .

The Complainant then submitted that he commenced his communication with the external regulator and compiled a protected disclosure. The Respondent did not appear actively participative in either of these processes. I found it unusual that the complainant presented his protected disclosure to the staff on reception late in the evening. He detailed that he had left of his own accord. I was given two very different versions of what purported to be a protected disclosure. One dated June 14 and one dated June 15. The second in time document asked for another position in portering / job offer before the complainant decided to follow up his complaints with external bodies and the Minister for Health.

I have considered both accounts of the subsequent meeting on June 16. I am satisfied that this was a successful interaction between the parties which permitted employment to recommence. This was a clear opportunity to restart in the position of Housekeeping assistant. Both parties agreed a way forward. I did not see a record of the signed document which the complainant contended was conditional on his return. I note that there was no mention of the protected disclosure at the 16 June meeting. I could not ascertain why this was so .

I found that the period of June 16 – November 2017 constituted a period where the Complainant retained his Department of Social Protection payments and where he was actively trying to recommence at the respondent hospital. I found that the process of planned restarting was accompanied by the corresponding completion of the appointments documentation. I accept that it was unnecessarily protracted.

I note that the respondent is a public body and it may have assisted the complainant to seek to find an advocate to advance his wish for re-appointment at this juncture .

I found that the period of June 16-November 20, 2017 did not generate an opportunity for the complainant to restart at the hospital. I found that the complainant refused an offer to re-start work on August 2,2017. After this point, it seems to me that the process of restart was submerged in the expansive external complaints process which steered the focus completely away from the complainant’s prospective direct employment. It seems to me that the complainant accepted this when he emailed the Portering Department in early September seeking new work.

Suffice to say the complainant did not regain employment status within the cognisable period of this claim. I must therefore confine my findings to the employment first in time, that was the morning of June 12,2017. I must decide whether the complainant was dismissed on this day?

Taking everything that happened into consideration on that day, I find that the complainant was completely overwhelmed by his experience at the hospital and walked out. I found that the gap between theory and practice was too broad for him and he was not assisted by his rushed appointment. However, he was not dismissed. He did not regain employment status after the morning of June 12, 2017.I found that the Respondent did reach out to secure the complainants re-appointment and the complainant did seek to negotiate on alternative positions outside of his sought after position .This blurred the focus of the case .

Therefore, I find that I lack the jurisdiction to take this claim any further. The matter of the submitted causal connection between the dismissal and the protected disclosure is therefore out of my reach and moot in the absence of a dismissal.

I find that the claim for unfair dismissal cannot succeed.

Decision:

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.

I find that the claim for unfair dismissal cannot succeed.

Unfair Dismissal / Protected Disclosure.