Complainant

Respondent

Parties

Patrick  Doyle

Health Service Executive

Representatives

Peter Glynn SIPTU

 Paul Hume HSE

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-00035801-001

22/04/2020

This case is concerned with the dismissal of the Complainant on the 31st of January 2020. Prior to the termination of his employment, he was engaged on two successive fixed term contracts commencing on 18th December 2018. Employment was as a multitask attendant at Mayo General Hospital on a rate of pay of €1,075.55 gross per fortnight. The hearing of the complaint commenced on 13th May 2021 and was adjourned to allow the HSE to provide specific evidence regarding the application for renewal of the contract of the Complainant and the refusal of that renewal, reasons which were said by them to be central to their defence of the complaint of unfair dismissal. The hearing reconvened on 10th November 2021 and evidence was given under affirmation by Mr Doyle and by Mr O’Luanaigh representing the Hospital.

The Complainant was advised on the 14th of January 2020 that the Respondent could not extend his contract due to expire on January 31st 2020. What is described as ECC approval is required for all contract extensions/renewals. Local management have no latitude in extending contracts, therefore without ECC approval a contract cannot be extended as this is the control mechanism that polices the number of staff versus employment ceilings. The hospital was unable to offer a further contract as the post did not receive approval from the National Director which was a requirement at that time. It is common for the Employer not to renew contracts on a regular basis, i.e., when someone returns from unpaid leave or maternity leave. The Complainant was advised that he could resubmit an application which would be included for consideration when other opportunities presented. He did not reapply for subsequent positions which became available.

The foregoing is the summary of the Respondent’s case as set out at the initial hearing. Evidence of the application and refusal processes were sought by the undersigned at the initial hearing to support the assertions made by the Respondent in circumstances where such reasoning was never advanced to the Complainant at any point. At the reconvened hearing the Respondent representative conceded that he could not provide evidence to show that specific approval was sought for Mr Doyle’s position or that the specific approval sought was declined by the National Director’s office as previously contended. The only information available showed that in relation to the category of employee occupied by the Complainant between 1st October 2020 and 1st December 2020 nineteen applications for extension of contracts were sought and thirty-three approvals came in. The excess figure could be explained by some lagging in approvals but there was no specific information in relation to the Complainant’s post. In relation to the reason given to the Complainant in a letter from the Hospital where it stated that the reason why the employment was terminated was due to there being no longer a requirement for the post given “We no longer have a requirement for this post” the HR representative conceded the reasonwas not adequately phrased and it was accepted the terms did not set out the reasons related to seeking approval and failing to secure approval for the particular post.

Mr O’Luanaigh on behalf of the Respondent explained the system in some detail and how it could transpire that a person who was appointed on the 29th of January just before the termination of employment of the Complainant may have been offered that post some months previously and a vetting and other procedures would be required before the person could take up the position. Another multitask attendant would be assigned to cover the area cleaned by the Complainant.

In response to the case of the Complainant where he said that he believed that the termination of his employment was for reasons other than the expiry of his contract Mr O’Luanaigh agreed that a meeting had taken place in October 2019 relating to concerns about the Complainant’s performance as well as some issues he had. The issues were resolved and there was no record of receiving the document provided by the union in their submission which was a detailed complaint of 17th October 2019 related to members of management and he was not aware of any meetings concerning that document.

The Complainant had successfully completed probation and was subsequently issued with another fixed term contract. He was assigned to ward and laboratory cleaning. He was informed on 14th February 2020 that his position would be terminated following the end of his contract. At no stage did the Employer advise the Complainant that they were awaiting approval from the National Director for an extension. Another multitask attendant was employed on 29th January 2020 carrying out the same roles and responsibilities as the Complainant. The contention is that there was an onus on the Employer to advise the Complainant of the similar position being available. Two multitask attendant were employed by the HSE into similar roles after 29th January 2020. It is the Complainant’s case that following a grievance submitted by him in October 2019 a copy of which was provided with the submission, a decision was taken not to further extend his contract. At the hearing the SIPTU Representative could not confirm from the records on file that the October document was actually submitted to management at any stage.

The relevant sections of the Unfair Dismissals Act relating to the termination of employment where the person is employed under a fixed term contract state:

“(2)(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,

or

(c) dismissal where the employee’s employer at the commencement of the employment informs the employee in writing that the employment will terminate on the return to work with that employer of another employee who is absent from work while on protective leave... and the dismissal of the first-mentioned employee duly occurs for the purpose of facilitating the return to work of that other employee”.

Subsections (d) (i), (ii) and (e) are also concerned with circumstances where the term of employment is related to the return to work of an employee on carer’s leave. The inclusion of subsections (c) and (d) is for the purpose of demonstrating that the part of the Respondent’s submission where they refer to it being common for the Employer not to renew fixed term contracts on a regular basis, i.e., when a person returns from unpaid leave or maternity leave, is not relevant to this case in circumstances where such a prospect or reason for the contract was not provided to the Complainant and neither was this given as a reason for his dismissal. The reason given in the contract issued to the Complainant on 20th June 2019 to expire on 31st January 2020 simply stated that the HSE West “require short-term temporary staff for the period specified below”. It is noted that this contract, which was the second and successive contract, contained no objective reason for the renewal of the contract on a fixed term basis.

While not disputing the bona fides of the representatives of the HSE in this case, the reality is that they have been unable to provide evidence to support the contention that the reason for the nonrenewal of the contract and the termination of employment was related to a reduction in the need for short term staff which is the purpose of the contract. Neither have they been able to demonstrate by evidence that specific approval was sought for renewal of the term of the Complainant’s employment contract was actually sought or that having sought approval that his post was specifically refused for an extension. The reason given for the dismissal, which is crucial in any case where the employer terminates employment, i.e., that there was no longer a requirement for the position, does not stand up to scrutiny if the other part of the Respondent’s case is accepted that they sought approval and that they required the position and the work was covered by another employee after the complainant was dismissed.

In these circumstances the Respondent has failed to discharge the burden of proof required to satisfy the test that the dismissal occurred solely because of the expiry of the contract and by extension the refusal of approval to issue a further contract. There were difficulties within the Complainant’s employment just a few months before the expiry of his second contract evidenced by a well-attended meeting in October to discuss various issues including the need for further training. Wherever it went-there is a document which the Complainant had signed a detailed grievance about his supervisor. In the circumstances it was not unreasonable of him to conclude that the decision to terminate his employment was related to the difficulties experienced by him and his complaints.

The decision is to uphold the complaint of unfair dismissal due to the inability of the Employer to provide evidence in support of their own case made out at the hearings and the lack of substance in the grounds notified to the Complainant when he sought an explanation for his dismissal. In short-the Respondent has failed to evidence that this was a case of dismissal where the dismissal was based solely on the expiry of a fixed term contract as set out in section 2(b) above which, if those terms were fully met, would provide an absolute defence to a complaint of unfair dismissal.

In relation to redress, the Complainant sought compensation. The HSE indicated that they would work with a decision to restore the Complainant to the employment. The Complainant was unemployed at the time of the hearing in May 2021 and again in November 2021. Since his dismissal he obtained three months’ work. There was no evidence presented of him actively seeking work outside of that three-month period and he decided not to seek further employment in the Hospital although vacancies were advertised following the termination of his own employment. In these circumstances the only reasonable conclusion is that the Complainant has made precious little effort to obtain alternative employment. On balance I consider that compensation is the appropriate redress given the lapse of time since the Complainant was employed and his evident reluctance to reengage with his former employer. Compensation is awarded but limited to eight weeks’ pay based on a rate of €1075.55 gross per fortnight. This award takes account of all the circumstances of the dismissal including the failure of the Complainant to make sufficient effort to offset his financial losses. On this point it may be necessary to add that the Complainant referred specifically to Covid as a reason he could not obtain alternative employment. However, given that he had a background in healthcare and there was a demand for people to work in healthcare throughout 2020, this argument is not accepted as a reason for being unable to obtain work. Moreover, and of more significance, is that there is no evidence of making an effort to obtain alternative work outside of one three-month period.

The complaint of Unfair Dismissal brought by Patrick Doyle against the HSE is well founded. The Respondent is to pay the Complainant the sum of €4302.20 compensation.

Unfair Dismissal-fixed term worker