Complainant

Respondent

Anonymised Parties

A General Manager

A Public Health Authority

Representatives

Bernadette Walsh, Independent Advisor

Head of Corporate Employee Relations

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00036073-001

08/05/2020

This hearing was held remotely with submissions filed and exchanged in advance of the hearing.

The Employee was accompanied by an Industrial Relations Consultant and the Employer was represented by the Head of Corporate Employee Relations together with a colleague from the Office of the National Director of Human Resources.

The Employee is a General Manager with the Employer. She commenced her employment 27 August 2001. She held a national role on a 6-month fixed term contract which was not renewed. It is the Employee’s dispute that she had a legitimate expectation that the contract and level would be extended beyond the period of 6 months but due to her illness it was terminated.

The Employee was successful in obtaining a national post on a fixed term contract. Towards the end of the 6 months contract she was diagnosed with a serious illness. The Employee states that neither her contract nor her level were renewed which would have been custom and practice that such contracts be reviewed, and this was a result of her developing a serious illness. The Employee stated she was discriminated against due to her illness.

The Employee raised a number of points as part of her dispute:

·       Her request to the then National Director of HR to extend the period of her contract during her sick leave period went unanswered.

·       The only notification she received that her contract had expired was upon review of her payslip.

·       The Employee stated that she had expressly stated that she was interested similar roles at the same level and noted her place on the recruitment panel.

·       A number of weeks after she went on sick leave a role was advertised for a similar role to that which she had held. She did receive an email from the Director of HR advising her of the role, but this was 24 hours before the closing date. Due to the fact she was in the early stages of her medical treatment the Employer offered to extend the closing date in the circumstances. The Employee was not in a position medically to apply for the post.

·       A panel was created for a role which she describes as “almost identical” to the role was previously undertook.

·       The Employee stated there was a change in the reporting line when she was on leave and there was no consultation with her as to this significant change which in practical terms meant that she would be reporting to someone who was previously at the same level as when the Employee was at the post at national level.

At the hearing the Employee referred to correspondence and documents both between her and the Employer and arising out of a Freedom of Information request which have been reviewed.

In summary the Employee was of the view that she had discussed future planning within the role with Director of HR prior to her diagnosis and there was never any doubt that she would continue on in the role beyond the period of 6 months as stated in the contract. The duties of the role could never be accomplished within a 6-month period.

The Employer began its submission by complimenting the Employee on her valued contribution to the service with the representative noting he had often sat around the table with her and on interview panels. The Employer also recognised that some of the communication was not the best but did state that out of respect for the Employee contacting her while she was out sick was not always appropriate.   The Employer wished the Employee both in the written submissions and at the hearing the best of health and happiness in the future.

The Employer set out the history of the role and panel noting that in November 2017, the Employee was successful appointed and took up the role which stated on the job description that it was a 6-month specified purpose role. The Employer also provided a copy of the contract of employment together with the job approval form.

The contract came to an end in May 2018 and was not extended. The Employer confirmed that there was correspondence from the Employee to the HR Director having had sight of her payslip and the level she was paid at. The Employer also confirmed the correspondence around the interaction between the HR Director and the Employee as regards the upcoming competition which was extended for the Employee.

On 25 October 2019 the Employee wrote to the new HR Director setting out her case stating she had been constructively dismissed from her national role on account of her ill health. By reply, the Employer having review her file stated; “I cannot conclude that you were constructively dismissed from your [role]”

A formal grievance was submitted on 27 November 2019 by the Employee. There were four grievances raised which can be summarised as follows:

1.       It was custom and practice to extend such contracts and the contract was not renewed as a result of her serious illness. Therefore, she was discriminated against on the grounds of ill health.

The Employer responded in detail noting the specific time period on the contract together with a breakdown of temporary v permanent appointments from January 2014 to December 2019.

2.       The request to the HR Director to extend the contract for the period the Employee was on sick leave remained unanswered and the failure to inform her that her 6-month contract had expired.

The Employer refuted this allegation and the decision not to renew the post was made prior to the Employee’s illness. During the Stage 1 Grievance Investigation, the Employer acknowledged there was a shortfall in communication and offered the Employee compensation on a compassionate basis in the form of an extension of her national post for the period of her sick leave, i.e. 6 May 2018 to 30 November 2018.This offer was not accepted by the Employee.

3.       The Employer notified the Employee of a live competition for another national role with a closing date of 24 hours from the date of notification. The Employee responded advising of her place on the national panel but was told by the Employer that panel was for temporary positions only and did not apply to this current competition.

The Employer set out its response in detail regarding the different panel structures. In respect of the live competition the Employee was invited to apply for, it is noted she did not apply.  

4.       The Employee disputes the reporting structure that was put in place when she returned to work after her illness.

The Employer set out the restructuring that took place following advertised roles.

The Employee did not accept this outcome and appealed it to the Chief Operations Officer who in turn upheld the outcome of the Stage 2 grievance process. An additional compensatory sum of €10,000 was offered to the Employee by the COO.

It was after receipt of this outcome the Employee appealed the matter to the Workplace Relations Commission.

It must be noted from the outset that there are numerous claims of discrimination on the grounds of ill health made by the Employee. However, the dispute before me was brought under the Industrial Relations Act 1969 and not the Employment Equality Act 2015.

The Employee did not make a reference or objection to the grievance procedures she invoked with her Employer. It was the Employer who set out the procedures followed in response to the Employee’s grievances. Therefore, on the facts before it can be safely concluded that the Employee has no issue or dispute with the manner in which her grievances were attended to by her Employer. The Employee made no reference or comment on the outcome of the grievances.

The contract of employment, together with the job description and job approval form all clearly set out that the contract was for a specific period of time, i.e. 6 months. This is accepted by all parties. It is not within my jurisdiction to alter the contract or make any recommendations on a clearly defined contract.

It is recommended that the outcome of Stage 3 of the internal grievance procedure is upheld and the Employee is paid at the national level for the period from 6 May – 30 November 2018 on compassionate grounds together with the additional compensatory sum of €10,000 offered by the COO. Given the circumstances of this case, this is a fair and reasonable outcome for all and the grievance considered resolved.

Grievance