ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00012910

Complaint(s):

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-00017155-001	30/01/2018

Date of Adjudication Hearing: 18/06/2018

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The case concerns the ending of the employment of a Supervisor /Instructor in the service of a Care Facility.

1: Summary of Complainant’s Case:

The Complainant was employed by the Respondent Care Centre, a subsidiary of the main National Health care body, as a Contract Worker since 2011. He made a number of efforts to have his position clarified including a reference of a claim to the WRC under the Protection of Employee (Temporary Agency Work) Act, 2012 regarding an alleged disparity in his Terms and Conditions when compared to permanent Main National Agency staff.

In August 2017 he was informed that his contract was being ended and was given one week’s notice.

He was treated most unfairly despite having worked very diligently and in a most committed manner for the Health Care Agency and its special needs clients.

2: Summary of Respondent’s Case:

The Respondent accepted that the Complainant had been an exemplary worker in the Care Facility. His employment came to an end when the need for Employment Agency staff ceased due to the Respondent achieving its required and sanctioned compliment of permanent staff.

The Agency had in April 2016 a vacancy for a full time equivalent to the Complainant’s position. The Complainant applied but was ruled ineligible as he did not possess the required Social Care qualifications (Level 5 Qualification) to be listed for interview.

The position was re-advertised in February 2017, with the same qualifications being required. Again, the Complainant was deemed to be ineligible on qualification grounds. The Recruitment competitions were run by the National Recruitment Service of the Main National Agency.

The job Description, Terms and Conditions for the post of Supervisor /Instructor as determined by the National Agency were submitted in evidence.

The position was that once the need for Employment Agency Personnel reduced at the Care Centre such staff were no longer required and had to be let go.

The Care Centre took the decision with great regret but there was no other course of action open to them.

3: Findings and Conclusions:

This was a most unfortunate case. The Complainant was clearly dedicated to the Care Facility and his loss would be felt. However, the Qualification requirements, set Nationally, for the Supervisor position were well known. The Recruitment Competition was run by the Central Recruitment Agency who could not allow noncompliance with published criteria.

The attaining of the relevant Grade 5 Social Work qualification would not be regarded as a major academic hurdle for most employees.

The Complainant should have foreseen the possibility of a permanent position becoming available and taken early steps to address the qualification issue. In addition, he had the period between the first Competition in April 2016 to the second Competition in February 2017 to rectify the position albeit in a very short time frame which, to be fair, may not have been possible.

It was clear as well that the well-publicised imperative across the Health Service was to reduce reliance on Agency staff and, in this light, the Complainant should have been aware from an early date of the urgent need to make his personal position more employable in the Care facility.

At the Oral Hearing the Representatives of the Respondent stated that they did not have any leeway or local managerial discretion, no matter how well intentioned, in these cases that might have allowed the Complainant to remain in employment albeit in an over budget capacity while awaiting qualifications.

Accordingly, and having reviewed all the evidence both oral and written, I had to find that the ending of the Complainant’s employment was due to the requirement for Employment Agency staff ceasing to exist at that time. It was not an Unfair Dismissal under the terms of the Unfair Dismissals Act, 1977.

The claim is dismissed.

4: Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim in accordance with section 7 of the 1977 Act.

Act	Complaint/Dispute Reference No.	Summary decision/ Refer to Section 3 above for detailed reasoning.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00017155-001	Unfair Dismissals Act, 1977 claim is not well founded and is dismissed.

Dated: 21/09/2018

Workplace Relations Commission Adjudication Officer: Michael McEntee