Employee

Employer

Parties

A Care Worker

A Care Services Company

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00043557-002

13/04/2021

The Employees fixed term contract was terminated verbally without written notice and he alleged he was dismissed unfairly due to a complaint against him which was unfounded.

The Employee was an employee under contract. The contract started on the 22nd April 2020 for three months. It was extended by a further three months. On the 5 th October the Employee was informed by his Manager that there was a complaint against him by a service user. The Employee had no knowledge of the facts of the complaint and denied all allegations against him. The Employees employment was terminated on the 16th October 2020 by phone call from his manager as he prepared to go to work.  It was submitted that the Employee was unfairly dismissed and the complaint was brought under the Industrial Relation Acts as the Employee did not have 12 months service.  The Employee was rostered to work after the end date on the contract and had an expectation that work was available for the Employee. However, but for a complaint made by the service user, where he was not afforded an opportunity to respond in line with the principles of natural justice, his employment was terminated by phone call from his manager. It was the Employee's position that he was terminated as a result of this complaint against him by the service user and was not afforded any of the protections of the disciplinary process of the Employer. It was alleged that the Employer chose to unilaterally terminate his contact and thereby by passing the client's right to know the allegation against him and defend himself.

The Employee started employment with the Employer on 22 April 2020 as a Care Worker, working 36 hours per week and being paid 23,013.65 Euros per annum pro-rated. The Employee’s employment was terminated on 17 October 2020 by reason that the contract came to its natural end. On 22 April 2020, the Employee was issued with a 3 month fixed term contract due to expire on 17 July 2020. On 10 July 2020 the Residential Service Manager and the Employee’s Line Manager, made a request for a 3 month contract extension to cover the leave of a staff member. The period requested was from 18 July to 17 October 2020. The request was granted, and the Employee was issued with extension letter. On 18 September 2020 the Residential Services Manager advised the Employee that his contract was due to expire on 17 October 2020, however, he had asked the HR department to provide clarification with regards to the person the Employee was covering for and whether the contract could be extended.

The Employer received a complaint against the Employee from another staff member. 

 On 15 October 2020, the Employer carried out a preliminary screening into the allegation made against the Employee in line with the Trust in Care Policy.   On the 16th October the Manager explained to the Employee that due to a bereavement of a resident in another service the organisation decided on the redeployment of a permanent staff member from that service.  The Employee was informed he will receive a payment in lieu of notice. The Employee queried the trust in care investigation and was informed that this will not be pursued any further. The Employee stated that he was very disappointed. The Employee’s employment came to an end on the 17th October 2020.   The Employee was notified of the contract’s cessation date and was provided with 4 weeks’ notice, paid in lieu on 16 October. In relation to the allegation raised against the Employee, following the “trust in case, preliminary screening” procedure, it was decided that the matter required no further action, and it was closed.  

The Employee alleged he was not informed at the meeting on 18 September that the contract would come to an end but this was denied by the Employer and they stated the Employee was notified of the termination by his Manager.

 It was the Employer’s position that the Employee was dismissed fairly in line with his contract. The Employee was working on a fixed term contract to cover the leave of a permanent post holder.  The Employee was fully aware that the fixed term contract would expire on the 17th October and he was reminded about it a month before that date. The Employee was informed that due to bereavement of a resident the Employer had to facilitate the role of a permanent employee.  In his claim form, the Employee stated that he believed he was not properly dismissed. However, the Employee’s contract came to an end in line with a fixed term nature of his job. 

The Employer is committed to ensuring that staff members rights to natural justice and fair procedures are always upheld. In relation to the procedures used to investigate the Trust in Care complaint, the Employee was afforded all benefits of fair procedure in line with the company’s policy: 

The Employee was issued with a copy of the allegation, 

Attended the meeting with a colleague

The allegation was fairly examined and processed. 

The Employee was given an opportunity to make his representation’s

In light of all of the above, the Employer believes that the Trust in Care process in which Employee was engaged was procedurally fair in all respects. 

It was the Employer’s position that it acted reasonably and fairly at all times, in accordance with its policies, best practice, and appropriate conduct. 

The Employee also claimed he was unfairly dismissed by reason that his contract had expired. It was the Employer’s position that it did not dismiss the Employee, rather, the contract came to its natural end. 

The Employer Manager gave convincing evidence that the reason the Employees contract came to an end was another employee had become available from a nearby centre due to the unfortunate death of a client there. However, the employee had been rostered publicly for the week (at least) after the expiration of his second contract so therefore would have a legitimate expectation to work beyond the end of his contract. The Employee also gave convincing evidence he was not verbally informed that his contract was coming to an end. While the circumstances of when the complaint against the employee was made and the ending of his contract could create some association between both events no case was made that the Employee committed any wrongdoing and the time frame involved between the receipt of the complaint and the date the end of the second contract was one day, thus not allowing time for a full investigation into the complaint. The Employee was also cleared of any allegation.  The Employees contract of employment clearly states he will receive four weeks’ notice in writing of termination of the contract. This did not happen.

Having weighed up the situation I recommend in favour of the Employee and recommend the Employer pay the Employee 2000 Euros compensation as compensation for not providing the notice in writing and therefore creating the expectation in the Employees mind that the contract may be extended and to settle the very differing perspectives to this dispute.

Unfair Dismissal