Complainant

Respondent

Anonymised Parties

An employee

A Bank

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00016775-001

12/01/2018

The Complainant commenced employment with the Respondent as an agency worker and successfully applied for a position within the Respondent bank. The contract of employment offered to the Complainant was a fixed-term contract for a duration of approximately three and a half months.

The Complainant’s representative made a verbal submission at the hearing.

The Complainant was not afforded fair procedure as outlined in the Respondent bank’s policies and in accordance with S.I. 146 of 2000.

The matter of the results of the “Independent Person Check” should have, at least been the subject of an investigation and the Complainant afforded the opportunity of an appeal, if required. The full facts should have been established and investigated, the outcome of an investigation should have been made known to the Complainant, a disciplinary hearing arranged and the Complainant should have nbeen offered the opportunity of representation – none of this happened.

As the Complainant was going to be an employee of the Respondent bank, he was required to make a Declaration in Respect of Criminal Convictions and a Confirmation of Fitness and Probity, these documents required the Complainant to make a positive affirmation that he had not been charged or convicted of a criminal offence or was not the subject of a criminal investigation. He was also required to affirm, amongst other declarations, that he had not defaulted upon any payments owing by him or was not the subject to a judgement debt.

These requirements were required under both legislation (the Central Bank Reform Act 2010) and the Respondent’s Staff Handbook and Code of Conduct, both of which are specifically referred to in the Complainant’s contract of employment.

On 8th November 2017 the Respondent became aware that the Complainant had been convicted of an offence in 2015 which had the effect of his being deemed to be a subject to a disqualification order. This information had arisen from background checks conducted at the time of the Complainant’s application for the role. Unfortunately, the HR Administrator dealing with these checks was a temporary employee and did not bring the result of those checks to the attention of the relevant HR Business Partner.

At that time, it had already been confirmed to the Complainant that his employment would end with the expiry of his contract on 30th November 2017. In light of the information then to hand, which would have prevented him from being hired in July 2017 if it had been known then, the Respondent was instructed not to come to work the following day, 9th November 2017. He was paid his full salary until the last day of his fixed-term contract, 30th November 2017.

The Complainant’s contract ended on 30th November 2017 – he was paid to this date.

The Complainant was not dismissed from employment nor was he subjected to any disciplinary hearing.

A comprehensive statement of the terms and conditions of employment were issued to the Complainant who acknowledged receipt of same and signed the following declaration:

“I hereby acknowledge that I have received, read and understood the XXXX Staff Handbook and Code of Conduct . By signing I agree with the policies and regulations included in both”.

Clause 2.3 0f the Statement of Terms and Conditions of Employment reads as follows:

“The Unfair Dismissals Acts 1977 to 2007 shall not apply to a dismissal consisting only of the fixed term of this contract without it being renewed”.

Having considered the arguments and submissions presented at hearing I feel that no dismissal has taken place and therefore I cannot disagree with the arguments presented by the Respondent representative. However, I should comment on the way in which the Respondent’s HR personnel managed the “Individual Person Check” – at best it was sloppy, reports of this important nature should not be left to junior temporary administrators and I would recommend that the Respondent’s senior HR personnel look at this process to prevent the like happening again.

For the reasons outlined above the complaint fails.