Complainant

Respondent

Anonymised Parties

A Worker

A Health Service Provider

Representatives

Vernon Hegarty Workers' Rights Centre

Paul Hume IRO

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-00019175-001

14/05/2018

Background

1. The         Respondent/Employer is a         national healthcare provider.
2. The claimant commenced employment with the employer on 23 November 2015 as a’ Multi Task Attendant’ working on a 2-year, fixed term contract under the ‘Intern Scheme for Health Support Grades’ which had been introduced through the national ‘Haddington Road’ Agreement (the Public Service Stability Agreement. 2013 – 2016).
3. In August 2016 the claimant was subject to a Stage 1 Disciplinary sanction of a ‘Verbal Warning.’ Contrary to the Respondent’s representations on this point the claimant submits that she was advised at the time that the warning would not appear on her record, neither was there any suggestion to her at the time (or any time since) that her probationary period was extended as a consequence. When the employer made its later assertions on these points – and, post dismissal, asserted an additional concern around ‘satisfactory performance’ issues- we requested documentation relating to their assertions but to date none have been forthcoming.
4. The claimant suffered from a stroke in late 2016 and through her recovery period her attendance record was, quite naturally, negatively affected. In all she was absent for about a three-month period due to this ‘mini’ stroke but had an otherwise good attendance record.
5. By 7 November 2017 – 13 days before she was dismissed due to a supposed inability to ‘perform all her duties’ – Occupational Health had issued a report confirming her fitness for her duties and also ‘fit for a permanent contract.’ The Report recommended that the claimant not be assigned to kitchen duties on her return to work but no prohibition was given against such duties in the long term – it was an advisory recommendation with regard to the immediate return to work period in consideration of her continuing improvement in rehabilitation.(Appendix 2, p. 1)
6. On 20 November 2017 the claimant was advised that she was not going to be made permanent due to her inability to ‘perform all her duties,’ and that her 2-year contract would expire on 23 November and therefore and her employment would be terminated at that time. The claimant took the initial justification for the decision to terminate her contract to be a reference to the recommendation in the Occupational Health report around assignment to kitchen duties, while ignoring the Report’s clear confirmation that she was fully fit for her role and duties (and for permanency). (Appendix 3, p. 6 & Appendix 2, p. 1)
7. The claimant appealed the Respondent’s decision to dismiss by letter dated 27 November, 2017. She raised two grounds of appeal:
   1. That she had already served the required 18 months under the Intern Scheme and her contract should be a CID at that point so no question of the contract terminating by fulfilment of any fixed term could arise, and
   2. That the Respondent had not at any time brought any ‘perceived issues’ with her performance to her attention prior to the decision to dismiss her.
8. The Respondent did not allow for any right of appeal but responded on 14 December 2017 to confirm that her performance issues were well known to the claimant and documented by them.
9. SIPTU wrote to the Respondent on 15 December reiterating the appeal grounds put forward by the claimant previously, and requesting the documentation referred to by the Respondent in its email of 14 December (as well as requesting a copy of the contract, any disciplinary sanction and the Matron’s off-duty roster). We wrote again on 23 March 2018 to the same effect but have never received the documentation requested.
10. The matter was referred to the Adjudication service of the WRC on 14 May 2018.

The Intern Scheme for Health Support Grades

1. This scheme was established under the ‘Haddington Road’ Agreeement.
2. The respondent’s HR Circular 025/2015 confirms that the ‘Landsdowne Road Agreement’ subsequently affirmed that a process ‘to appoint interns to permanent positions…’ was to be put in place.
3. This Circular outlines that process as being; “Subject to satisfactory service, the current cohort of Interns will be appointed to posts in the health service after 18 months”.
4. Circular 024/2017 (dated 6th July 2017) cautions that, “All employers are reminded that this measure should be implemented in a timely manner and without undue delay,” and that those meeting the criteria, “…should be regularised in a permanent capacity, with immediate effect.”

Union case  

1. We submit that         the claimant was unfairly dismissed on 23 November 2017, by her employer.
2. We submit that the claimant was an employee with over a year’s service on the date of her dismissal and is therefore entitled to the protections of the provisions of the Unfair Dismissals Acts, 1977 – 2015.
3. We submit that the employer is disingenuous in asserting, on the one hand, that the termination of the contract is with reference to mere expiry of the fixed term while, on the other, suggesting that the claimant’s ‘suitability’ has been called into question to an extent that she has not fulfilled the criteria for ‘satisfactory service’ sufficient to have activated the immediate regularisation to a permanent contract on completion of 18 months service, under the express terms of the Intern Scheme.
4. We submit that in this case the Respondent has confusedly conflated several distinct justifications it puts forward for the dismissal and that along with being inapplicable they are inherently inconsistent, one with the other, in that:
   1. That the first justification (at the meeting of 20/11/17) referred only to an inability to ‘perform all her duties’, i.e. the recommendation by OH that she not be assigned to kitchen duties on her return to work, then
   2. That her termination was due simply to the expiry of her fixed term contract (by letter on 20/11/2017), then
   3. That the failure to be made permanent as per the Intern Scheme terms was due to her failing the ‘satisfactory service’ requirement – due to her attendance record (email of 14 December)
   4. That the failure to be made permanent as per the Intern Scheme terms was due to her failing the ‘satisfactory service’ requirement – with additional reference to her disciplinary record
5. In this (19, above) we refer to the failure on the part of the employer, at every stage, to adhere to agreed Procedures in the employment; the failure to apply the strict terms of the Intern Scheme, with immediate effect (in July 2017) as per the direction of Circular 24/2017); failure to specify, at any stage, in what respects the claimant was considered (and by whom, when?) to have failed to satisfy a ‘satisfactory service’ condition on the Intern Scheme, or with reference to what objective criteria; failure to advise the claimant that her contract was in jeopardy of termination depending on the conclusions reached by Occupational Health, even where they had advised that she was fit for all normal duties; failure to provide for an appeal of her termination from employment by the Respondent.
6. Poor attendance by an employee in this employment is ultimately referred to Disciplinary procedures should the employee’s record warrant concern. We submit that at the precise time when the claimant should have been offered a CID by operation of the agreed terms of the Intern Scheme no disciplinary sanction under agreed disciplinary procedures had been issued to her on the basis of either attendance or conduct, nor had any procedure been even initiated.
7. The fact that the Respondent suggests, among other suggestions at other time, that the claimant’s attendance record was unsatisfactory and that this was the basis on which her entire service was unsatisfactory (for the purposes of making a determination as regards the Intern Scheme), is completely disingenuous when we consider the fact that the employer at no time invoked agreed Disciplinary Procedures to address any concern as regards her attendance.
8. We make these submissions with specific reference to Section 6(3) of the Unfair Dismissals Act 1977 as amended by Section 5(6) of the Unfair Dismissals Act 1993, which states: “In determining if a dismissal is an unfair dismissal, regard may be had, if the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers it appropriate to do so —to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal…”
9. We submit that - as per the grounds submitted at each stage (above) - the employer acted unreasonably by failing to adhere fairly to its own procedures, and that the claimant had a right under contract to the protections of these procedures.

Loss and Mitigation

1. Without prejudice to the claimant’s claim for reinstatement to the employment from the date of dismissal, should this remedy be deemed inappropriate we make the following submission as regards loss and mitigation of loss.
2. The claimant got employment immediately after her dismissal by the Respondent with TCon limited hours .In February 2018 she got a second position with IHC hours, as a Home Help worker. She finished at TC on 10 September 2018. In all her total hours (at €11 and €11.05 per hour respectively) were below her 39 contracted hours with the HSE.
3. The claimant’s actual financial loss is estimated at €16,142 for the period. Future loss, based on the above figure (as it represents close to a full year of actual loss), may be calculated as likely to extend for a further two years.

Summary

1. We submit that the claimant was unfairly dismissed by her employer. We submit that – in light of all the facts and circumstances of the case – the employer acted unreasonably in determining to terminate the cliamant’s contract with reference to asserted unspecified performance issues, or on simple expiry of a fixed-term contract that could not have been in effect at the time had the agreed terms of the Intern Scheme been applied, and in denying the right of appeal in relation to the decision to terminate, this constituting dismissal contrary to the provisions of the Acts.
2. We submit that, in remedy of his unfair dismissal, the claimant be reinstated to her position.

Conclusion

1. We respectfully submit that the claim is well founded and request that you find in favour of our member’s position.

At the hearing , the union took issue with the respondent’s failure to submit the documentation sought at the direct meetings between the parties including the claimant’s contract of employment as well as the alleged records of the claimant’s performance deficits.It was submitted that the respondent had failed to notify the claimant of their dissatisfaction with her attendance record and that the respondent had failed to give the claimant written notification advising her that her contract was in jeopardy arising from her attendance record.It was submitted that the respondent should have taken account of the claimant’s illness including the TIA – it was submitted that the respondent had withheld any documentation that they were relying upon on effecting the termination of the claimant’s contract of employment .The union requested that the complaint of unfair dismissal be upheld and that the claimant be reinstated.

I have reviewed the evidence presented at the hearing and noted the post hearing submissions made by the respondent.These submissions included the claimant’s medical records – which were not disputed and included a record of exchanges with the claimant indicating that owing to her absenteeism record , her permanent appointment would have to be referred to Occupational Health.In the event , Occupational Health approved the claimant’s suitability for permanency with the proviso that for the time being the claimant be exempt from kitchen duties.In these circumstances I am obliged to accept the union’s contention that the respondent has conflated inherently inconsistent justifications for the dismissal ,has failed to follow their own procedures for managing attendance , has failed to observe their own disciplinary procedures in effecting the termination of the claimant’s employment and have denied the claimant a right of appeal.Having regard to the foregoing together with the absence of any evidence of performance deficits on the part of the claimant and in light of the respondent’s unwillingness to consider reasonable accommodation for the claimant as provided for in the Employment Equality Act 1998 , I am upholding the complaint of unfair dismissal. As the relationship of trust between the parties has been significantly damaged , I deem compensation to be the most appropriate remedy and require the respondent to pay the claimant €20,000 compensation.