ADJ-00027182

Complainant

Respondent

Parties

Aidan  McDonald

Saint Catherine's Association

Representatives

Represented by Boino Solicitors

Represented by IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00034779-001

21/02/2020

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

CA-00034779-002

21/02/2020

The complainant submitted that he made an error while completing the online complaint form in that he ticked the box relating to redress option as the Industrial Relations Act but that he wishes to pursue his claim under the Unfair Dismissals Act.

Preliminary Issue

The complainant states that he submitted the online complaint form without the benefit of legal representation at the time. He states that the complaint form reads that he commenced his employment on 20 August 2018 and that the employment ended on 7 November 2019. In relation to the specific complaint, the complainant indicated that it falls under “Unfair Dismissal” and due to an error, the following was selected (wrong box was ticked/drop-down menu in which the wrong selection was made): “I was unfairly dismissed, I do not have at least 12 months service” (as opposed to) “I was unfairly dismissed, I do have at least 12 months service”. It is submitted that as a consequence of that selection, the complaint form proposed to the complainant only the possibility in relation to the redress option, of selecting a complaint under the Industrial Relations Act. The complainant submits that it is clear from the narrative i.e “I worked for St. Catherine’s Ass for 15 months” that the complainant was making a complaint under the Unfair Dismissals Act. It is submitted that the respondent and the WRC were clearly put on notice that the complaint relates to unfair dismissal of the complainant with 15 months of service therefore there is no prejudice to the respondent. The legal representative asserts that the complaint form is not a statutory form. In this regard, the caselaw pertaining to Brannigan v Co. Louth VEC and Stanislawska & Jaguar Landrover Ireland were cited as relevant authorities in this matter.

The legal representative for the complainant submits that in order to exclude the application of the Unfair Dismissals Act when a fixed term contract offered to an employee expired, the following conditions must be met;

-          The contract must be in writing

-          It must be signed by both the employer and the employee

-          It must contain a clause excluding the operation of the Act to the dismissal consisting only of the expiry of the term

The complainant’s legal representative states that the complainant was offered first 12 months fixed term contract which expired on 19 August 2019. It is submitted that said contract does not meet the criteria of the exclusion cited herein as it does not contain the clause excluding the operation of the Act to the dismissal consisting only of the expiry of the term. It is submitted that the complainant was informed at interview that on expiry of the first 12 months fixed-term contract, he would be given a permanent one. Based on this, the complainant never agreed and never signed any subsequent fixed term contract. The complainant’s legal representative states that if such a fixed term contract exists, it was never agreed to by the complainant and it was never signed by him. It is submitted that the complainant continued working until he was dismissed on 7 November 2019.

The complainant’s legal representative states that the complainant did not receive notice in writing setting out the disciplinary procedure that the respondent would follow. It is submitted that the complainant was not subject to any disciplinary procedure in the workplace. It is further stated that the complainant was not subject to any disciplinary action. If there were some alleged issues with his performance, they were not subject to any procedure. The complainant was not notified formally of any of them, he did not therefore have an opportunity to answer them, he was not invited to any formal investigation or disciplinary meeting and was never issued with any disciplinary sanction during his employment. 

 The complainant’s legal representative cites SI No. 146/2000 – Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 where it outlines that the minimum standard of any disciplinary process in the workplace and that such minimum standards must be applied in the absence of any formal disciplinary procedure in the workplace. It is therefore submitted that the complainant was in fact unfairly dismissed, there were no substantial grounds justifying his dismissal and no disciplinary procedure whatsoever was followed prior to his dismissal. The caselaw in UD/17/46 Limerick City and County Council v Richard Moran was cited wherein the Labour Court expressed the view that the disciplinary procedure was not followed by the respondent (although contrary to the instant case, Mr. Moran was aware of a procedure being conducted and detailed allegations regarding his performance were put to him) and was lacking procedural fairness to which Mr. Moran was entitled.

Mitigation of loss

It is submitted that the complainant secured new employment on 1 February 2020, therefore he was unemployed, as a result of the dismissal, for a period of 12 weeks. It is submitted that the complainant made attempts to secure employment. It is submitted that the gross loss was 12 weeks at €1,294 = €15, 528. It is submitted that the complainant’s new weekly wage is €1,120 resulting in an ongoing loss of €174.       

Preliminary Issue

The respondent submits that there has been significant correspondence since the claim was submitted to the WRC with all communications clearly stating “Industrial Relations Act”. The respondent asserts that if the complainant had taken the case under the incorrect piece of legislation as his legal representative claims then he had 12 months to rectify it. It is submitted that the complainant sought legal advice 18 months after submitting his claim therefore it is the respondent’s position that no reasonable cause has been applied for this case and it should therefore proceed under the Industrial Relations Act. 

The respondent states that the complainant was employed as a social care worker on a fixed term contract from August 2018 until the expiry of his contract in November 2019. The respondent submits that while the complainant disputes that he was on a second fixed term contract (duration : 3 months) on the basis that he did not accept it; it is the respondent’s firm position that the complainant acknowledged there was no permanent contract being offered to him, just the 3 month contract and the complainant continued to work on that basis.

The respondent asserts that on 5 August 2019, a supervision meeting was held between management and the complainant. At this meeting, the topics of OOR (objects of reference) training, key working, emergency medications storage and working time act/work-life balance were discussed. The respondent contends that it was outlined to the complainant that there were flaws in his performance in relation to these areas that needed to be improved through performance improvement measures provided by the company. It is submitted that “agreed actions” were created to give the complainant an opportunity to improve. The respondent asserts that on 25 August 2019, the complainant was asked to attend a meeting regarding his employment with the company due to his fixed term contract reaching its expiry date on 19 August 2019. The respondent states that the complainant outlined that he was of the impression that he would secure a permanent contract, however the respondent asserts that it informed the complainant it had not promised this and that at that time, they could only offer him a 3 month fixed term contract. The respondent submits that management explained that only if the complainant’s ongoing performance issues improved, would they be able to offer him a further 1 year contract after his 3 months contract.

The respondent states that at the meeting of 25 August, management outlined the complainant’s downfalls including

·         the complainant was involved in a large number of incidents and that the intensity and duration of these incidents was at a higher level to that of other staff

·         the complainant was not following the behaviour support plan in place

·         the complainant was repeatedly told that he cannot request to work five days in the week when he is doing 13 hour shifts, yet the complainant continued to request shifts over the maximum set out by management

The respondent states that at the end of this meeting, the complainant stated that he would “try harder”.The respondent contends that on 8 September, the complainant was involved in three very serious medication errors along with one recording error. It is submitted that the complainant was not willing to take responsibility for the errors that he was involved in but again stated at this meeting that he would “try harder”. The respondent maintains that the manager conducting this meeting stated that the complainant’s unwillingness to take responsibility for his actions was a major deficit in his performance as over the time he has been working for the respondent there has not been the development that was expected of him. The respondent contends that on 12 September, the complainant was one of many staff that attended additional training with the Deputy Children’s Services Manager and Positive Behaviour Support which assisted in improving certain deficits in ability to deal with challenging behaviour which were identified during Behavioural Incident Report Form reviews.

The respondent submits that on 26 September, the complainant attended a meeting where a number of performance issues were discussed. The complainant was responsible for supporting a resident to progress with a goal which requires consistent input and regular evaluation. The complainant stated that he was completing this weekly, however when the records were checked, this was not the case. The respondent states that the required work had not been completed to the standard required. The respondent contends that medication errors that the complainant was involved in were also discussed and the complainant was unwilling to take responsibility for his role in them. The respondent submits that the complainant was advised that he would need to demonstrate how his performance has improved over the next number of weeks in order for a further contract to be issued.

The respondent states that on 9 October, the complainant was involved in a further medication incident wherein emergency medication for a resident was forgotten when going on a community access. The respondent maintains that the seriousness of the matter was communicated to the complainant, the complainant was informed of how costly the error could have been, had the medication been needed while on community access. The respondent contends that the complainant was unaware of his actions and potential implications until they were highlighted to him. The respondent submits that the complainant was reminded that he was on a performance improvement programme and that if he was not successful in this, the organisation would not be in a position to renew his contract. The respondent asserts that on 30 October, the complainant was informed that his 3 month contract would be expiring as of 19 November and would not be extended beyond that date. The respondent maintains that it was outlined that the reason behind this decision was due to the complainant’s failure to improve his ongoing performance issues.

The respondent states that the complainant was employed on a fixed term contract which was never guaranteed to be extended/renewed and that the complainant was well aware of this. The respondent submits that he was not at any point told he would automatically be guaranteed a subsequent contract after his last one had expired. The respondent maintains that it exercised its discretion as they have the right to do and did not renew the contract. The respondent asserts that the complainant may have been able to improve his circumstances had he taken the reasonable instruction from management to rectify his performance issues. The respondent states that it is clear that on numerous occasions, the complainant was informed of the downfalls in his performance and how he could improve them, yet he continuously failed to do so. The respondent contends that it objectively justified their rationale for not renewing the complainant’s contract which was completely within their right to do so. The respondent states that it is noteworthy that the complainant’s original 12 month contract had been extended to give the complainant an opportunity to improve his performance issues and he was made aware of consequences should he fail to improve.

The respondent submits that notwithstanding the above arguments, the complainant was at no point unfairly dismissed from his employment as the reason for termination was the expiry of his fixed term contract. In this regard, the respondent cites the caselaw in O’ Cuinnegain v Guardian Angels National School.            

Preliminary Issue

Based on the evidence heard, I am satisfied that the complainant made an error in compiling the online complaint form and while he erroneously put in information that resulted in a redress option relating to the Industrial Relations Act, based on the narrative in the form specifically ”I worked for St. Catherine’s Ass for 15 months” that the complainant was making a complaint under the Unfair Dismissals Act.  The respondent was clearly put on notice that the complaint relates to unfair dismissal of the complainant with 15 months of service therefore there is no prejudice to the respondent. With regard to this issue, I am also cognisant of the case of Brannigan v Co. Louth VEC which is a persuasive authority in the circumstances of the within claim. I am satisfied I have jurisdiction to hear the within claim under the Unfair Dismissals Act.

I note the points raised by the complainant’s legal representative, in that, the initial 12 month fixed term contract did not meet the criteria of the exclusion cited regarding a clause excluding the operation of the Act to the dismissal consisting only of the expiry of the term. I note that the complainant stated that he was informed at the interview that on expiry of the first 12 months fixed-term contract, he would be given a permanent one. I note that the complainant has stated that he did not receive the letter attaching the purported further 3 month fixed term contract nor did he receive the 3 month contract.

I note that while the respondent has stated that the complainant was on a Performance Improvement Plan, the complainant refutes this contention and stated that he had a clean disciplinary record throughout his time with the respondent organisation and that no disciplinary procedures were applied to him whatsoever. I note that the manager of the respondent organisation stated that the company would only invoke the disciplinary process as a last resort and that the company always would try and find a solution to the matter before going down the road of a disciplinary procedure, however, it was submitted that the complainant’s unwillingness to take responsibility for his actions was a major deficit in his performance as over the time he has been working at the respondent organisation, there has not been the development expected of him

While the respondent has stated that the termination of the employment came about as a result of the expiration of the three month fixed term contract, I find based on evidence heard that correct procedures were not followed in the manner in which the complainant’s employment was terminated. I note that the respondent states that there were serious issues with the complainant’s performance. While the respondent raises issues of underperformance by the complainant, based on the totality of the evidence heard, I am satisfied that fair procedures were not applied to the complainant and the process giving rise to the dismissal fell short of that which would be required in an employment relationship. In this regard, I am mindful of the Labour Court decision in UD 17/46 Limerick City & County Council v Richard Moran where the Labour Court stated that the disciplinary procedure was not followed by the respondent and was lacking in procedural fairness to which Mr. Moran was entitled.

I note from the testimony taken that when the complainant was called into the office to be told he was being let go, it came as a shock to him and he was very offended by the manner in which he was treated.  I also note that the complainant had a clean disciplinary record.

In conclusion, having carefully examined aIl of the evidence adduced in the within claim, I find that the complainant was unfairly dismissed on procedural grounds on the basis that he was not given fair procedures in the manner in which his employment was terminated.

In calculating the appropriate compensation due to the complainant, I consider that the complainant did not provide evidence that he made appropriate efforts in attempting to mitigate his loss arising from his dismissal. I am also cognisant that in direct evidence, at times, the complainant was not forthcoming when questioned about events that occurred. He stated in answer to questions that he could not recollect what transpired. In this regard, I did not find some of his evidence compelling and that factor together with his lack of effort in mitigating his loss is borne in mind in the level of compensation I have awarded.

Having considered the totality of the evidence adduced in the within claim, I find that the dismissal of the complainant was procedurally unfair. I direct the respondent to pay the complainant €6500 in financial compensation within 42 days of the date of this decision.  

Unfair dismissal