Complainant

Respondent

Anonymised Parties

A Care Worker

A Residential Care Centre

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00033919-001

21/01/2020

The complainant began work with the respondent on October 22nd 2019 and was still within the probationary period. His employment ended on January 19th (or 16th) 2020 and dismissal is disputed by the respondent.

The complainant’s supervisor asked him to entertain one of the service users using his own phone during his shifts.

The service user in question was given to playing on their device for long periods and the complainant could not give this commitment to him.

He was also accused of claiming for payment more hours than had been worked.

Following this the complainant asked the person in charge to check the timesheet at the end of the month as the roster kept on changing every day.

He also accused the complainant of not signing the daily report on the 5th December which is a common mistake as the service user regularly exhibited distressed behaviour.

There was also an accusation of not correctly administering medication.

During a meeting the complainant raised the issue of the service user’s extended game playing and said that there should be alternative activities.

The complainant was then told at a meeting on January 16th 2020 that he was not being put on the roster for the following week and he understood this to mean that his employment was being terminated.

He had not been given any written or oral warning.

The complainant had been assigned to a unit containing ‘high intensity’ residents and it was a demanding environment.

He was not handling the situation well and required regular intervention by his supervisor.

There had been a series of four meetings with him and details of these meetings were provided by means of a file note from the respondent.

Timesheets were not being filled in properly, daily checks were not being carried out and there had been issues with medication. The position was starting to become dangerous for the service users.

HR had been put on notice of the meeting of January 16th and of the intention to move the complainant to a less challenging situation, and in the interim to place him on a relief panel.

Following the meeting with his supervisor the complainant was contacted by the HR Manager and asked if he wished to be put on a relief panel. He replied that he would and it was agreed that this would be confirmed in writing.

Despite all this he was also told that he should report for duty in his then current location the following Sunday (January 19th).

However, he then declined this offer saying he anted to leave straight away.

He later made contact with the respondent seeking a reference which was provided.

The facts of the case are as set out above and were not in dispute.

While the complainant was in the early stages of probation and a number of performance meetings (as the respondent described them) took place in early December matters seemed to accelerate at the meeting on January 16th 2020. It was submitted on the complainant’s behalf that such supervisory meetings are a normal part of this type of work and do not necessarily indicate poor performance.

That said, it seems that his supervisor had decided that he no longer wished to have the complainant working in what was a challenging care environment.

However, the supervisor’s handling of the situation left a good deal to be desired. The proposed outcome of relegating the complainant to a ‘relief panel’ was a very substantial alteration to his contract of employment.

Had matters rested there it could easily be said to have amounted to a termination of the complainant’s employment and a breach of his probationary contract.

While this is a complaint under the Industrial Relations Acts, in our system of workplace performance and disciplinary management the principle of fairness overarches everything.

This includes the management of probation even allowing for the difference in the nature of that contract of employment and the fact that it has not yet become a contract of indefinite duration.

The meeting of January 16th was far too peremptory and lacked any of the elements of fair procedure (to say nothing of common courtesy) to which the complainant was entitled.

The complainant was then contacted by the HR Manager who repeated the position about the relief panel but then, somewhat confusingly offered the complainant the option to return to the roster the following Sunday, which he declined.

Despite some ambiguity about his longer term position the respondent told him clearly that he was on the roster for January 19th.

He told the hearing that his decision not to accept this was a reaction to the conversation with his supervisor but there was also evidence that he initially agreed to accept the placement on the relief panel.

This is the action which he says led him to leave under terms constituting a constructive dismissal.

In that respect, the complainant was making two arguments at the same time; one that the supervisor’s actions resulted in his dismissal and the other that his rejection of the terms set out by the HR manager gave rise to a constructive dismissal.

While his reaction was an understandable one it cannot be both of these things.

If the actions of the supervisor represented the termination, which it clearly did not given the HR Manager’s intervention, then was the complainant justified in rejecting her offer of a return to work the following Sunday?

It was not clear when the complainant would have reverted to the relief panel but as matters unfolded this did not arise.

While the conduct of the respondent left a great deal to be desired, the decisive act which terminated the employment was the decision of the complainant not to accept the proposed rostering, after his experience with his supervisor.

The principles that govern a constructive dismissal are in general terms, whether the conduct of the employer is such that an employee has no choice but to terminate the employment.

The complainant must have known that the HR Manager outranked his supervisor in these matters and, upset as he may have been about the discussion with the supervisor things changed in his discussion with her; notably in being retained on the roster.

It is possible that the complainant would have found himself in a different situation once his refreshed tenure had expired but it is at that point that a constructive dismissal might crystallise.

I do not think that this meets the test for constructive dismissal on these facts.

Looking more generally at the case, the onus falls on an employer to ensure that it manages these processes fairly and the respondent deserves censure for its mishandling of the matter prior to the meeting with the HR Manager on January 16th.

A person may not, without some process, simply be put on something like a relief panel with the uncertainty that involves.

This would have been a clear breach of the contract of employment, which was only narrowly rescued by the HR Manager’s intervention.

For that reason, while the complainant laid emphasis on the fact of his alleged dismissal under this legislation I find that he is nonetheless entitled to a remedy for the respondent’s mismanagement of the matter and its generally unfair handling of the matter and my recommendation is below.

I strongly recommend that the respondent review its procedures for the management of probationary employees to ensure compliance with fair procedure and that it ensures that its line managers are fully aware of the policy and any obligations that may fall on them.

I recommend that the respondent pay the complainant €1,250 for the breach of his rights in respect of its handling of the matter.