ADJ-00012431

Complainant

Respondent

Anonymised Parties

An Attendant

A Hospital

Representatives

UNITE

Health Service Executive

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00016684-001

08/01/2018

The complainant was employed by the respondent from 29th February 2016 until 29th August 2017. The complainant was paid a gross salary of €875 per fortnight. The complaint relates to alleged unfair dismissal.

The respondent refutes the allegation that the complainant was unfairly dismissed. The respondent stated that the complainant was recruited in 2016 as an Intern Support Services Assistant under the Public Service Agreement in place at the time which provided that Interns would be made permanent upon completion of eighteen months satisfactory service. The respondent contends that there were several issues with the complainant during the initial 18 months of employment and as a result the respondent decided that the complainant was not suitable for a permanent position and his employment was terminated.

The respondent stated that between 27th May 2016 and 3rd August 2017, the complainant had 20 incidences of sick leave, comprising of approximately 10 periods of self-certified sick leave and 10 periods of certified sick leave as well as a further 6 unpaid absences for varying reasons. The respondent stated that the complainant did not comply with the notification requirements relating to sick leave and did not engage on several occasions in relation to return to work meetings.

The respondent also highlighted approximately 21 issues with the complainant’s attendance and performance/behaviour between June 2016 and January 2017. The issues in question related to multiple occasions where the complainant was late for work, or could not be located during working hours as well as issues relating to his attitude when spoken to by members of management.

The respondent stated that it had followed its procedures in relation to the complainant’s employment. It had provided counselling to the complainant regularly prior to invoking its disciplinary procedures. The complainant was ultimately given a verbal warning in August 2016, a written warning in December 2016 and a final written warning in May 2017.

The respondent stated that when the complainant had completed 18 months service in the organisation, it had to decide whether he was suitable for permanent appointment. The respondent stated that in all of the circumstances of the complainant’s employment it decided that he was not suitable and terminated his employment accordingly. The respondent stated that it acted reasonably and in line with its procedures at all times and does not accept that the complainant was unfairly dismissed.

The complainant stated that he was unfairly dismissed and was not afforded fair procedures or the principles of natural justice in relation to his dismissal.

The complainant stated that the respondent did not follow its procedures in relation to the management of the disciplinary process. The complainant contends that he was subject to formal warnings when counselling was more appropriate and was not informed of the outcome of the appeal of the final written warning prior to his dismissal. The complainant also stated that a number of the issues in relation to his alleged behaviour and unsatisfactory work performance had not been put to him previously, yet they were taken into account as part of the disciplinary process and the ultimate decision to dismiss him.

The complainant stated that he was unemployed for 6 weeks until Mid-October 2017before gaining new employment at the same level of pay. The complainant is seeking compensation in relation to his complaint.

In relation to this complaint, I find as follows:

The complainant was employed on a two-year contract in 2016 as part of an Intern Scheme for Health Support Staff provided for in the Public Service Stability Agreement 2013-2016 (Haddington Road Agreement). The specifics of the Scheme provided that the Interns would be appointed to permanent positions having completed 18 months of satisfactory service. The complainant was deemed not to have been suitable for permanency and his employment was terminated after 18 months.

The respondent stated that it followed all its procedures in relation to the complainant’s employment and concluded that the complainant was not suitable for a permanent appointment after 18 months of service.

The complainant contends that there were several procedural shortcomings in the respondent’s application of its disciplinary procedures which denied him the principles of fair procedures and natural justice and he claimed that he had been unfairly dismissed. The complainant also submits that some issues raised in relation to his performance and behaviour cited by the respondent at the adjudication hearing had not been raised with him previously.

In reaching my conclusions, I have given careful consideration to the period of employment in question. Between May 2016 and August 2017, the complainant had 20 incidences of sickness absence as well as a further 6 absences of unpaid/unauthorised leave. In relation to the performance and behavioural issues of the complainant there were approximately 21 issues raised by management between June 2016 and January 2017, some of which resulted in informal counselling. The formal disciplinary process resulted in a Verbal, Written and Final Written warning being issued to the complainant in August 2016, December 2016 and May 2017 respectively. The complainant appealed the final written warning and an appeal hearing took place on 21st July 2017. The outcome of the appeal of the final written warning was not communicated to the complainant prior to the termination of his employment in August 2017.

The parties confirmed at the adjudication hearing that there had been delays and confusion in relation to the appeal hearing that eventually took place on 21st July 2017. I am of the view that it would have been more appropriate for the complainant to have received the appeal outcome prior to his termination. However, despite this procedural shortcoming relating to the final written warning, it is clear from its submissions that the respondent had assessed the previous 18 months of employment and had decided that the complainant was not suitable for a permanent position.

Band of Reasonable Responses

The applicable legal test in relation to the respondent’s actions is the “band of reasonable responses” test, as set out by Mr. Justice Noonan in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated:

“It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”

In all of the circumstances of this case, and particularly given the excessive sickness absences and the level of performance and behavioral issues that were of concern to the respondent, I find that the respondent acted reasonably in its decision to terminate the complainant’s employment on the basis that it had formed the view that he was not suitable for a permanent appointment.

Accordingly, I find that the complainant was not unfairly dismissed as claimed.

Having considered the submissions of both parties, I declare that the complaint is not well founded.

Unfair Dismissal, Band of Reasonable Responses.