ADJ-00036416

Complainant

Respondent

Parties

Donal  Murphy

Brothers Of Charity, Southern Services

Representatives

  No Appearance by or on behalf of the Complainant at hearing

Sophie Crosbie , Regional Director, IBEC

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00047603-001

12/12/2021

On 12 December 2021, the Complainant a Care Assistant in a Health Care setting submitted a complaint of penalisation under the Protection of Employees (Fixed Term Work) Act, 2003. At that time, he introduced the claim as a Lay Litigant.

On 31 January 2022 IBEC came on notice for the Respondent and confirmed their agreement to attend an Adjudication hearing.

On 25 January 2022, the Complainant sought to augment his complaint, but did not a new complaint form. This documentation was shared with the Respondent on 24 February 2022.

On February1, 2022, the Complainant undertook to announce his representation as soon as he received a date for hearing.

On 23 February 2022, the Complainant confirmed that he was to be represented by his Solicitor at hearing, details of which were to be forwarded to the WRC. The Complainant recorded that his employment had been terminated on January 27, 2022.

On 24 March 2022 the Complainant sought a hearing date. He forwarded copies of pay slips which were promptly shared with the Respondent representative.

On August 3, 2022, the Complainant followed up on the scheduling of his hearing date.

On August 30, the Complainant followed up on his hearing date.

On 5 September 2022, the Parties were invited by the WRC to a face-to-face hearing on 28 October 2022 at 11am. Incorporated in this invitation were details on

1 Guidance note for WRC hearing

2 WRC procedures in Adjudication of all employment complaints

3 requests for a written statement at least 15 days in advance of hearing

4 Policy surrounding request for Postponement in exceptional circumstances 

On 24 October 2022, I wrote to both Parties in advance of the hearing.

I introduced my role as Adjudicator and sought an outline submission with chronology from the complainant no later than October 26 at 5pm. I undertook to share the submission with the Respondent and to furnish any reciprocal document received from the respondent back to the complainant.

I asked the complainant to clarify if he was to be represented in light of previous conflicting statements on file.? I also asked both parties to bring a copy of the Fixed Term Work Act, 2003 to hearing.

On that day, I also wrote to the Respondent seeking a responding submission prehearing.  

Late on 25 October 2022, the WRC received an outline submission from the Respondent, but none from the Complainant. This was promptly shared with the Complainant by email.

I did not receive any response from the Complainant to my letter of 24 October.

On 26 October, the Complainant informed the WRC that he was not going to attend the hearing scheduled for October 28, 2022, as he had a physical injury. The Complainant was requested by the Postponements Team to comply with the WRC Postponement policy and furnish supporting documentation. He did not do so.

On October 27, 2022, the WRC forwarded a formal confirmation to the complainant that his application for postponement had been refused and crucially that that the hearing would proceed as scheduled. the date, location and time of hearing were again set out as October 28 at 11am.

On Thursday 27 October at 13.26 hrs, the Complainant replied that he had complied with postponements and the matter was “out of his hands “

Almost one hour later he emailed back seeking that the Respondent representative should be informed that he was unable to attend the hearing as he would be seeking medical attention.

The hearing progressed at 11.00 hrs on 28 October 2022. The Complainant did not make an appearance or send a representative in his stead. The Respondent was in attendance.

The Hearing concluded and record of attendance was filed on the electronic file. this captured the Respondent attendance and the Complainant nonattendance.

Later that afternoon, the Complainant furnished a Medical Certificate which outlined that he was unavailable for work on the sole date of 28 October 2022. The Complainant attached a copy of a 3-item prescription. This submission was not accompanied by any further communication or pleadings.

The Complainant submitted a written narrative on the complaint form that he had been penalised by his employer for invoking entitlements under the Protection of Employees (Fixed Term Work) Act, 2003 or for refusing to co operate with a breach of that Act or to avoid giving a contract of indefinite duration.

The narrative of the claim reflected that the Complainant had raised a grievance regarding attendance at Investigatory meetings and allocation of annual leave during December 2021.

The Complainant subsequently engaged in a latter-day submission of emails which seemed to chronicle his work-based experiences but had not been included in a further complaint outside of 12 December 2021.

The Complainant did not attend the hearing scheduled in his case. He did not submit a requested medical certificate which explained his reported injury prior to the hearing.

The medical certificate which arrived some 4 hours post hearing did not offer reasons which explained his absence from an Adjudication hearing. The medical certificate reflected a reason for why the complainant was not at work on 28 October 2022.

The Respondent operates a Health and social Care facility and has denied the claim.

The Respondent filed a prehearing submission which disputed the locus standus of the complainant under the Act. The Respondent contended that the complainant was employed as locum (if and when” worker which placed him outside the remit of the Protection of Employees (Fixed Term) Act, 2003 and sought to address this on a Preliminary basis at hearing.

The Submission also reflected that the Respondent was on notice of one sole formal; claim, that of 12 December 2021 and addendum copies of documentation received post 12 December 2021 did not amount to formal complaints.

I requested the Respondent to delay commencing the hearing to allow the complainant time to attend. I commenced the hearing at 11.10am

An issue arose at the outset of the hearing on the correct name of the Respondent. This occurred during a check on the complaint form for the correct legal entity.

The Respondent confirmed that the correct legal title for the Respondent is:

Brothers of Charity Services and not Brothers of Charity Southern Services as set out on the complaint form. The Respondent was agreeable to amending the title on consent. However, I was unable to action this in the complainant’s absence.

I explained that the Complainant had communicated his unavailability for hearing, and I chronicled the WRC interaction with the complainant on this matter.

The Respondent expressed a disappointment at the complainant’s absence. I asked the Respondent if they wished to make any further comment in the case?

Ms Crosbie for the Respondent outlined that the Respondent had assembled a team for the hearing in the case. She argued that the complainant had received the Respondent submission in sufficient time to furnish a response.

She submitted that the Complainant had never been a fixed term employee with the Respondent for the purposes of the Act. He had never sought rights from the Respondent in accordance with that Act under Section 8 or 9. The Respondent had not penalised the complainant in the course of his employment.

Any peripheral documentation received outside of the complaint form was not formalised as a complaint and was outside the cognisable period for any claim.

I am the appointed Adjudicator in this case and my jurisdiction rests in Section 41 of the Workplace Relations Act, 2015 and Section 14 of the Protection of Employees (Fixed Term Work) Act, 2003.

My role is to inquire into the facts of the case and to hear from both sides through the mechanism of a scheduled Adjudication hearing. The hearing in this case was scheduled for 28 October 2022 at 11 am and this was not disturbed by an unsuccessful application for postponement on October 27, 2022

The hearing is a very important moment in a case as it gives me as The Adjudicator an opportunity to clarify what has not been clarified to date and it is essential to complete the Inquiry so as to then furnish a decision to the Parties, which they may accept or appeal.

In my practice, I like to receive all relevant case related documentation in advance of the hearing. I find that once both Parties are on notice of the documentation, that full attention can then be given to the evidence in the case and documentation can be incorporated and referenced when needed by the Parties. For me, it assists in a fair hearing and minimises the risk of either party being blindsided by unexpected documentation, which may cause their concentration to falter. It maximises the opportunity for “cards to be face up on the table “.

 I appreciate that I manage the hearing, but the case is the domain of the Parties and I respect that.

It was for that very reason that I wrote to the complainant prehearing seeking

1 an outline submission and documentation

2 clarifications of representation

3 request to bring a copy of the Act to hearing

I assured the Complainant that once the WRC received a copy of the Respondent submission, it would be forwarded to him for his attention. That is what occurred on 26 October 2022.

The right to a fair trial is a cardinal requirement in the rule of law. In Tom Bingham’s “The Rule of Law” He writes prosaically when he states:

It is a right to be enjoyed, obviously and pre-eminently, in a criminal trial; but the rather ponderous language of this principle is chosen to make clear that the right extends beyond a criminal trial. It applies to civil trials, whoever is involved, whether private individuals or companies or public authorities. It applies to adjudicative procedures of the hybrid kind, not criminal but civil in the ordinary sense either: proceedings in which one or more parties may suffer serious consequences if an adverse decision is made.

There are some principles which apply to all three

1 It must be recognised that fairness means fairness to both sides, not just one

2 fairness is constantly evolving concept, not frozen at any moment of time

3 The Independence of Judicial decision makers  

Article 6 of the European Convention of Human Rights, incorporated into Irish Law in 2003, also emphasises the importance of access to civil justice when it sets out that everyone is entitled to a hearing by a Tribunal in the case of a disputed right.

The WRC has most recently as in July 2021, through the Workplace Relations Miscellaneous Provisions Act, 2021 reformed procedures for hearings to take account of the Supreme Court Judgement in Zalewski v Adjudication Officer and WRC IESC 24.

The WRC was found to be a body which administers justice. It is important that both parties preparing for hearing cooperate fully with the procedural changes, in particular in furnishing outline submissions 15 days prior to hearing.

I understand and respect that the Complainant in this case is a Lay Litigant and it may be his first appearance before the WRC. I appreciate that the formalities, rules, need for submissions may be daunting and exacting as a result. However, it is important to hear and appreciate both sides in a case to assist in decision making.

I understand that the complainant may have felt vulnerable prehearing, however the invitation to attend a hearing was requested by him on so many occasions. I would have liked to have met with the Complainant in this case. 

I am satisfied that both Parties were invited to hearing on 6 September 2022. This hearing was clearly set out as occurring on October 28, 2022, at 11 am.

No further correspondence was entered to file by either party until my letter issued on October 24. This was followed by the Respondent submission on October 25, 2022, and subsequently the application to postpone the hearing by the Complainant on October 26, 2022.

I am satisfied that the Complainant was provided with a hearing to address the disputed right on October 28, 2022. I am not satisfied with his conduct surrounding the WRC refusal to grant a postponement on October 27, 2022.

 The Complainant disregarded the outcome from the Postponement Team and failed to record an appearance at hearing. I found this unreasonable, even in the case of a lay litigant. I say this in particular in response to the Complainant direction to the WRC on October 27 that the WRC ought to alert the Respondent that he would not attend the hearing.

He did not furnish requested medical documentation in support of his application for postponement. When the medical certificate arrived post hearing, it bore no application to the Adjudication hearing and referred solely to his one-day absence from work. The Complainant introduced his report of “physical injury “on October 26 but has not provided validation for that time frame. It was open to the Complainant to attend alternative medical outlets, such as an out of hours service in advance of the hearing.

I must conclude that the Complainant has failed to attend the planned hearing in his own case. I am not satisfied that he has furnished an adequate reason for his nonappearance.

I have recorded the Complainant as a “no show “in that regard. I found that he has shown a disrespect for the WRC service, which has prioritised complaints lodged in 2021 for hearing in 2022.

Finally, I am to refer to the WRC Procedural guidelines accompanying adjudication hearings. 

Postponements Procedure:

WRC procedures for postponements were updated in July 2021. The current procedures entail two distinct processes — Process 1 and Process 2. Process 1 concerns requests on consent made early, which meet certain criteria, and which are granted as matter of course. Process 2 concerns requests where there are “exceptional circumstances and substantial reasons”. All requests must be made by email as early as possible to the WRC, and on notice to the other parties. The requesting party must give details of the reasons along with all relevant documentation.

The WRC's postponement guidelines are published on its website and can be accessed at the link below. Parties are requested to consult these guidelines before making an application for postponement and use the short form provided in the link: www.workplacerelations.ie/en/complaints_disputes/adjudication/postponement-policy/wrcpostponement-guidelines.pdf

The Adjudication Officer may grant an adjournment on the day of the hearing but only in exceptional circumstances and for substantial reasons.

If a complainant does not attend a hearing, the Adjudication Officer may find that the complaint is not well-founded etc. If the respondent does not attend, the Adjudication Officer may proceed and make a decision based on the information and evidence available. 

I have found that the Complainant did not attend the hearing in his own case. I am satisfied that he was fully on notice of the time, date and location of the hearing.

 I am not satisfied that his stated reasons for absence from a much-canvassed request for hearing hold weight and were not specifically validated by a Medical Officer.

The medical certificate received post hearing and after his request to postpone the hearing was denied is not applicable to the Adjudication hearing.

By his conduct, the Complainant appears to have acted to delay the hearing which he had canvassed for over many months. This conflicts with the stated objective of fair procedures, to apply fair procedures to both parties.

My request from the Complainant for an outline submission and clarification on representation went unheeded. I would have liked to have met both parties at hearing as I had spent a lot of time preparing for hearing.

I am very conscious of my role as a Decision maker at first instance. However, I am satisfied that the full provisions of Section 41 of the Workplace Relations Act 2015 were placed at the feet of the Complainant when he was offered a hearing. the Respondent attended the hearing, and the Complainant did not, neither did he observe or respect the outcome of the postponement application made on October 26, 2022.

I have waited for 5 working days post hearing and the Complainant has not made any further applications or pleadings in this case.

I find that I must now reach a decision in the case. As the Complainant did not appear to ventilate his case, I have taken account of the comments made by the Respondent at hearing

 I cannot establish a contravention of the Protection of Employees (Fixed Term Worker) Act 2003

I find that the complaint is not well founded.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 14 of the Protection of Employees (Fixed Term Work) Act, 2003 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

I find the complaint is not well founded.

Claim for Penalisation under Protection of Employees (Fixed Term Workers) Act, 2003. Non-Appearance by the Complainant