Complainant

Respondent

Anonymised Parties

A CE Worker

A Local Development Company

Representatives

MacSweeney & Company Solicitors

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-00026685-001

28/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00026685-002

28/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00026685-003

28/02/2019

The Complainant was employed by the respondent on a Community Employment Scheme from May 2017 to January 2019. The Complainant referred complaints to the Workplace Relations Commission on 28th of February 2019 alleging that the Named Respondent had breached Section 8 of the Unfair Dismissals Act, 1977, Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 and section 7 of the Terms of Employment (Information) Act, 1994. I proceeded to a hearing of these matters on 25th of November 2019.

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

CA-00026685-001

28/02/2019

The complainant submits that

She has been employed by the respondent on a Community Employment Scheme administered by the Department of Employment Affairs and Social Protection (DEASP) since May 2017, her placement up to 1st of February 2019 was at ‘X’ Family Resource Centre where she worked as an administrator,

She raised a grievance concerning bullying by (1) a colleague and (2) she raised a grievance concerning the behaviour of a Board member of the respondent organisation concerning the manner in which she addressed/spoke to her on 31st October 2018,

The matter was not dealt with in accordance with the Respondent's complaints procedure (and was essentially brushed under the carpet),

She was asked/invited to go "sick" and claim disability/illness benefit - in order to get her off the premises,

She received a letter from the CEO dated 30th January 2019 informing her that she was eligible (per the Department of Employment Affairs & Social Protection) for another year on a CE scheme, but that "in view of the difficulties that have arisen (and are still unresolved) with [her] placement and in the interests of her expressed allegations, it is not appropriate that (she) remain at (X) Family Resource Centre.,

The letter went on to say that no other providers in the area were in a position to take on an additional CE worker and concluded that "we regret we are not in a position to offer you a new contract".

The respondent submits that

The complainant was employed by them on a DEASP funded CE scheme in (X) Family Resource Centre from May 2017 to January 2019,

The DEASP advised that the complainant was eligible for another year on the scheme to commence on 1 February 2019,

The complainant in October 2018 made a complaint in respect of her treatment by a Board Member involved in (X) Family Resource Centre, this matter was not resolved and given the allegations made it was deemed appropriate for the complainant to continue her employment in the Family Resource Centre,

The respondent made attempts to find another placement for the complainant in the area but was unsuccessful and so the complainant was let go on 30th of January 2019.

Section 6(1) of the Unfair Dismissals Act 1977 provides that:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal, unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

In such cases the burden of proof rests with the Respondent to establish the substantial grounds justifying the dismissal of the Complainant.

The lawful reasons for dismissal are set out in Section 6 (4) of the Unfair Dismissals Act 1977 which provides:

“Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.”

Further, an onus is placed on the employer by Section 6 (6) of the Unfair Dismissals Act 1977 which provides

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal”

The complainant in the present case advised the hearing that she was subjected to an unfair dismissal by the respondent when she was dismissed from her employment at (X) Family Resource Centre by letter dated 30 the of January 2019 despite the fact that she was eligible to continue working there on a DEASP funded CE scheme for a further year. The complainant advised the hearing that the reason given for her dismissal was due to the fact that she had lodged a complaint in respect of her treatment by a Board Member of (X) Family Resource Centre.

The respondent advised the hearing that the complaint was employed under a community employment scheme (CE) funded by DEASP.  The respondent advised the hearing that the complainant in October 2018 raised an allegation concerning how she had been treated by a member of the board of management of the resource centre.   The respondent told the hearing that given the serious nature of the allegation made by the complainant and the recognition of its duty of care to all employees, allowing the complainant to remain working at the resource centre was not an option. The respondent advised the hearing that it made contact with sponsoring companies of the CE scheme to seek an alternative placement for the complainant in the area, but it was not successful in achieving the placement. The respondent wrote to the complainant on the 30th of January 2018 to advise her of the situation.

Both parties agree that the reason for the termination of the complainants employment at (X) Family Resource Centre was due to the complaint she had lodged against a Board Member of the respondent.

The respondent in its defence stated that it sought to secure an alternative placement for the complainant within the locality but was unsuccessful in its attempts and so had to let her go.

The questions I deem that need to be considered and decided upon are: (1) was it reasonable for the Respondent to dismiss the Complainant and (2) was the process that ended with her dismissal a fair process?

Accordingly, in the circumstances of the facts of this case I deem that it is my function as the Adjudicator to decide whether the employer’s decision for dismissal was within the band of reasonableness of a reasonable employer or not. In this regard, I note the UK Court of Appeal of British Leyland UK Limited v Swift [1981] IRLR 91, where, Lord Denning stated:

“The correct test is: was it reasonable for the employers to dismiss the complainant? If no reasonable employer would have dismissed her, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed her, then the dismissal was fair. It must be remembered that in all these cases, there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.

In her judgement in the Circuit Court case of Allied Irish Banks plc v Purcell [2012] 23 ELR 189, Ms Justice Linnane referred to the British Leyland case and remarked as follows: “It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employer’s view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken.”

I note that both parties agree that the complainant’s dismissal arose due to her having submitted a complaint against a Board Member of the respondent. The respondent’s response to this complaint was to dismiss the complainant from her position at (X) Family Resource Centre.   The complainant advised the hearing that she made a compliant to the respondent in this regard in November 2018. The complainant advised the hearing that the matter was not dealt with in accordance with the Respondent's complaints procedure and was essentially brushed under the carpet.   The complainant told the hearing that she was at the time of her complaint asked/invited to go "sick" and claim disability/illness benefit - in order to get her off the premises. The complainant stated that she went on sick leave pending the investigation of the matter.   The complainant advised the hearing that she met with her line manager Mr. M on 5th of November 2018 with a view to addressing her concerns and returning to work and she ultimately returned to work in early December 2018 and thereafter continued her work until her dismissal in January 2019.   The complainant advised the hearing that the respondent has a policy on investigating complaints but chose not to apply that policy and she stated that her grievance against the Board member was never properly addressed and the respondent instead chose to deal with the matter informally. The complainant told the hearing that arising from this ad hoc process the Board Member tendered a written explanation of sorts which the complainant felt fell well short of an apology.

The complainant advised the hearing that she had challenged the failure to apply the formal complaints procedure and in response she was pressurised to accept the written explanation. The complainant stated that she had escalated the matter to the respondent who indicated that it would not support her or get involved in the affairs of the Board of Management of a supported body and asked her if she would accept another position which she said she would consider. The complainant was then informed that the respondent would remove her from the Family Resource Centre on the ‘expiry of her contract’.     The respondent wrote to the complainant on 20th of December 2018 confirming her eligibility for a further contract in resumption of the scheme on 4th of February 2019. The complainant was informed that she would be assigned to another CE Scheme by phone on 28th of January 2019.    She was subsequently told that there was no other CE scheme position available in her area and that she would not be getting a new contract.

I note that the respondent in providing a response to the WRC complaint stated that allowing the complainant to continue working at the Resource Centre was not an option given the serious nature of the allegation made by her and in recognition of the duty of care to all of its employees.   The respondent at the hearing acknowledged that the complainant would have been kept on for a further year if she had not made the complaint in respect of the Board Member.

The Respondent has submitted that it acted reasonably in dealing with the situation that arose.   Having considered the evidence adduced, I disagree with the Respondent and I find that the facts presented in the case do not fall within the boundaries of the band of reasonableness as discussed in the case law above.   In addition, I must look at the process involved and whether that Process was fair.

I note that the complainant in this case was eligible for a further year of the CE scheme and that it is acknowledged by both parties that this year would have been spent working in the (X) Family Resource Centre supported by the respondent organisation if it hadn’t been for the complaint made by the complainant against the Board Member.

The respondent in its defence of this claim does not point to any procedures which were followed in arriving at its decision to dismiss the complainant.   The complainant’s contract of employment refers to grievance and disciplinary procedures which outline that a grievance can be raised and states that following this there is a right to a hearing by an immediate supervisor and which may be appealed to the Management Committee. In addition, the disciplinary procedure states that infringement of the contract or established rules can lead to an informal or formal warning following which an employee has the right to advance their case and be accompanied by a colleague or other representative. Any decision made can be appealed to the Management Committee.

In addition, in considering the procedures to be followed I am mindful of the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000) which sets out the general principles that should apply in the operation of disciplinary procedures and the promotion of best practice in giving effect to these procedures.  The Code states that the procedures applied must comply with the general principle of natural justice and fair procedures.

It is clear from the evidence adduced in relation to this matter that the respondent in this case did not follow its own procedures and did not have regard to the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000) in arriving at the decision to dismiss the complainant.

Having considered the totality of the evidence adduced here I am satisfied that the respondent in this case failed to follow its own disciplinary procedures and also failed to comply with fair procedures and natural justice before dismissing the complainant.   In the circumstances, I find that the complainant was unfairly dismissed by the respondent and accordingly I declare this claim to be well founded.  Having regard to the circumstances of this case I consider compensation to be the most appropriate redress, I note that the complainant in this case advised the hearing that she commenced a re-training course under the auspices of DEASP from March 2019 to January 2020.    

In making my decision I am taking into consideration the totality of the evidence adduced and all of the circumstances of this case.   Accordingly, I declare this claim to be well founded, I find that the complainant was unfairly dismissed, and I award the complainant the sum of €1,500 in compensation.

Accordingly, I declare this claim to be well founded, I find that the complainant was unfairly dismissed, and I award the complainant the sum of €1,500 in compensation.

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00026685-002

28/02/2019

The complainant submits that

She was not provided with objective grounds justifying the issue to of a second/successive fixed-term contract.

The respondent submits that

The complainant was employed as part of a Community Employment Scheme and the contracts are for a fixed term and managed nationwide by DEASP.

Section 2 (1) of the Act defines a Fixed-Term Employee for the purposes of the Act as follows:

“fixed-term employee means a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event but does not include –

(a)   Employees in initial vocational training relationships or apprenticeship schemes, or

(b)   Employees with a contract of employment which has been concluded within the framework of a specific public or publicly supported training integration or vocational retraining programme”

The Complainant in the present case was employed on a Community Employment Scheme which is a publicly funded scheme to “enhance the employability and mobility of disadvantaged and unemployed persons by providing work experience and training opportunities for them within their communities” and thus the complainant is not a Fixed-Term employee as defined by the Act.

It follows that this complainant lacks locus standi to maintain a claim under the Act, since, as a matter of law, she cannot be regarded as a fixed-term employee.

Accordingly, I declare this claim to be not well founded.

I declare this claim to be not well founded.

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00026685-003

28/02/2019

The complainant submits that

She received a Contract of Employment, but it does not meet the criteria prescribed by the Terms of Employment (Information) Act, 1994, as amended.

The respondent submits that

The complainant was provided with a contract of employment.

A copy of the complainants contracts for the period 2017 to 2018 and 2018 to 2019 was submitted in evidence. It was submitted on behalf of the claimant that the contracts do not fully comply with Section 3 of the Terms of Employment (Information) Act 1994 as it does not contain the required references to the following:

(ga) that the employee may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period as provided in that section,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(k) any terms or conditions relating to—

(ii) pensions and pension schemes,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

It is clear from the evidence adduced that the contract provided does not fully meet the criteria as set out in Section 3 of the Act in that there is a failure to include the required references.  

Section 7(1)(d) of the Act provides, in effect, that an Adjudication Officer may order an employer to pay a Complainant compensation of such amount (if any) as is just and equitable having regard to all the circumstances. The purpose of compensation is to provide redress to an aggrieved party for some loss, damage, inconvenience or expense incurred by that party in consequence of some wrongful act or omission by another.  

On the facts of the instant case, I am satisfied that the Complainant herein suffered no adverse consequences of any materiality in consequences of those contraventions upon which her claim to compensation is grounded and there was no evidence presented at the Hearing that the Complainant suffered any detriment as a result of these technical breaches of the Act.   In considering this matter I am mindful of the Labour Court decision in Irish Water v. Hall (TED161) where the Labour Court held that where mere technical breaches of Section 3 of the 1994 Act occurred it could not justify an award of compensation.  I follow that reasoning in my approach to this claim in considering the quantum of compensation if any which I deem to be appropriate in the circumstances. I note that the complainant’s employment in this case has already terminated and therefore consider that a direction to provide a statement compliant with s.3 of the 1994 Act would be of no benefit to her at this stage.

Accordingly, I find that the respondent in this case has breached Section 3, I declare this claim to be well founded and I deem that the amount of compensation which is just and equitable in all the circumstances of this complaint is €150.

I declare this claim to be well founded and I order the respondent to pay the complainant €150 in compensation for the breach.