ADJ-00016404

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00016404

Parties:

	Complainant	Respondent
Anonymised Parties	A Catering Assistant	A Hospital

Representatives

Mark Hyland Solicitors

Complaint:

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-00021295-001	22/08/2018

Date of Adjudication Hearing: 26/11/2018

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

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

Background:

The issues in contention concern a Catering Assistant and an alleged Unfair Dismissal by a Hospital.

1: Summary of Complainant’s Case:

The Complainant was employed on two successive six-month contracts – (from the 8th August 2017 to the 7th February 2018 and the 8th February 2018 to the 7th August 2018). The Respondent maintained these were Fixed Term, but this was disputed by the Complainant. The Issue was whether on not they were Specific Purpose with the Complainant being engaged until such time as the National Recruitment Service could fill the Catering positions, one of which was occupied by the Complainant, on a permanent basis. The Complainant was written to on the 25 June 2018 informing her that her contract was not being renewed.

The Complainant challenged this by way of letter of the 27th of June 2018 and pointed out the requirements in Hospital policy documents for Fair Procedures and her rights under both the Unfair Dismissals Act, 1977 and the Protection of Employee (Fixed Term Work Act) 2003.

The Complainant maintained that she had been denied her rights under natural justice as set out in both pieces of Legislation and the Hospital Policy Guidelines.

2: Summary of Respondent’s Case:

The Complainant was employed on a Fixed Term contract that expired on the 7th August 2018. As such she was let go on the termination of the fixed Term and has accordingly no grounds for a case under the Unfair Dismissals Act, 1977.

Notwithstanding the above basic legal fact, the Hospital had several issues of considerable concern regarding the Complainant during her time with them. These were outlined in a letter to the WRC on the 6th November 2018 and referenced again during the Oral Hearing. They formed the background to the decision not to renew the Complainant’s contract.

While a number of informal efforts were made by local mangers to address these issues with the Complainant it was felt that as she was on a fixed term the best course of action was to simply wait and let her employment come to an end.

It was the Hospital’s view that difficulties with the Complainant and other temporary staff necessitated an accelerated process to secure Permanent Staff, outside of the National Recruitment Agency. This was put in put in place shortly afterwards.

However, the basic fact was that the Complainant had a fixed term contract which came to its natural end and the employment of the Complainant ended accordingly. She can have no legal grounds for action under the Unfair Dismissal Act,1977.

Section 2 (2)b of the UD Act 1977, quoted below, refers.

2.— (1) F8[Except in so far as any provision of this Act otherwise provides] This Act shall not apply in relation to any of the following persons:

(2) F16[Subject to subsection (2A), this Act] shall not apply in relation to—

( a) dismissal where the employment was under a contract of employment for a fixed term made before the 16th day of September, 1976, and the dismissal consisted only of the expiry of the term without its being renewed under the same contract, or

( b) dismissal where the employment was under a contract of employment for a fixed term or for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment) and the dismissal consisted only of the expiry of the term without its being renewed under the said contract or the cesser of the purpose and the contract is in writing, was signed by or on behalf of the employer and by the employee and provides that this Act shall not apply to a dismissal consisting only of the expiry or cesser aforesaid.

3: Findings and Conclusions:

3:1 The Relevant Law

The relevant law in this case in the Unfair Dismissals Act, 1977 supported by SI 146 of 2000 -Statutory Code of Practice on Grievance and Disciplinary Procedures. In additional the rules of Natural Justice have to apply and are set out in a wide range of legal precedents.

Natural Justice has to be paramount.

This is well set out in the landmark case of Frizelle v New Ross Credit Union Ltd, 1997]IEHC 137 where Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

“1. The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2. Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3. The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4. The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

5. The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

SI 146 0f 2000 referred to above is a basic codification of the rules of Natural Justice and a key element is that an employee must be fully informed of any charges/allegations against him/her and given a right of reply.

3:2 Procedural Issues / Time limits.

A key question here is whether or not the Complainant has the required 12 months continuous service to qualify under the Unfair Dismissals Act.

Taking Section 18 of the Interpretation Act 2005 Section 18 as a guide I found that the Complainant had the required 12 moinths service from the 8th August 2017 to the 7th August 2018.

Interpretation Act 2005 –

18.—The following provisions apply to the construction of an enactment:

(h) Periods of time. Where a period of time is expressed to begin on or be reckoned from a particular day, that day shall be deemed to be included in the period and, where a period of time is expressed to end on or be reckoned to a particular day, that day shall be deemed to be included in the period;

Accordingly, I found that the Complainant had the required 12 months service to qualify.

3:3 Procedural Issues / Can the exclusions as set out in Section 2 of the UD Act, 1977 of the Act apply.?

The Respondent in their letter of notice dated the 25th June 2018 was relatively vague in regard to “resource complement and staff skill mix”. It did not refer to the fact of the expiry date of the contract.

However, in subsequent correspondence, supported at the Oral Hearing, in particular the letter to the WRC on the 6th November 2018 it lists five grounds of complaint, of “non-conformance”- against the Complainant. None of these have a time element and indicate a strong Job Performance/Non-Compliance decision base by the Respondent.

On this basis I had to take the view that the Unfair Dismissals Act,1977 applied. The evidence pointed clearly to the fact that the Complainant was dismissed on Performance Grounds. The ending of the employment under the contract clause was superficially the cause but in reality, the performance issues predominated in the dismissal decision. In oral Respondent evidence there was a strong impression given that the contact was available for renewal and a number of the Complainant’s colleagues were given renewed contracts.

3:4 Specific Purpose or Fixed Term Contracts

The employment contract letters of the Complainant from the Respondent displayed a degree of ambiguity in this regard. The job was being filled on a Temporary basis pending the permanent filling of the positions by the National Recruitment Service. This was clearly the specific purpose and the use of consequential fixed term six-month contracts was, it appeared, the administrative practice of the Hospital. On the balance of the evidence I had to come to the view that the Contract was Specific Purpose related to the filling of the job by the National Recruitment Service and the fixed term contract was secondary to this. This in itself would have rendered the ending of the employment problematic under the Protection of Employee (Fixed Term Work) Act, 2003 but as a complaint under this legalisation was not pleaded it was only a matter of note.

3:5 Handling of the substantive case.

It was clear from the evidence presented at the Hearing that the Respondent was quite unhappy with the performance of the Complainant. However, no formal employment disciplinary procedures were followed, no warnings were issued, and no appeals offered.

Considering SI 146 of 2000 Statutory Code of Practice on Grievance and Disciplinary Procedures. It is hard to see how the rules of Natural Justice were observed. The Guidelines in this area published by the National Hospital Employers Agency are equally relevant here and again do not seem to have been followed.

Put simply it is not within good employment procedures that an Employer can have five grounds of complaint against an employee without that employee having some form of redress or opportunity to offer an explanation particularly where the ending of the employee’s contract is an issue.

In this case the positions of Catering Assistants were coming up for Permanent Appointment and the Complainant would normally be felt to be labouring under a cloud, to say the least, in the Permanent Competition, with the five allegations against her still on file and un answered.

3:6 Summary Decision

Taking all evidence into account and the discussion points above I had to find that a valid case for Unfair Dismissal has been made.

4: Decision and Redress.

4:1 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.

Act

Complaint/Dispute Reference No.

Summary Decision. Please 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-00021295-001

Claim for Unfair Dismissal is well founded.

Redress of €2,250 is awarded.

4:2 Redress.

The Complainant indicted at the Oral Hearing that Compensation was her preferred redress as the relationship with the Hospital had now broken down to such an extent as to render Re-Engagement or Reinstatement unacceptable. However, this was somewhat ambiguous as the Complainant was on the Permanent Panel (following the interviews) and while down the list had a reasonable chance to secure a position during the duration of the Panel.

As the Complainant has been on Sick Leave and Maternity related Leave since the ending of the employment she had not been available for work since leaving the Hospital.

The actual Dismissal itself was largely coloured by procedural failings on the Respondent part. The Process of Permanent Recruitment was under way at the time and the filling of the positions on a Permanent basis would have shortly ended the contract, as specified in the Recruitment Contract letters, in any event.

Accordingly, having considered all the factors above and considered all the evidence I award the sum of €2,250 gross Pay as compensation - this equates to approximately four weeks’ pay.

The taxation of this sum to be a matter to be considered in conjunction with the Revenue Commissioners.

ADJ-00016404

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00016404

Parties:

Dated: January 16th 2019

Workplace Relations Commission Adjudication Officer: Michael McEntee

Key Words: