Complainant

Respondent

Parties

Teresa  Gilmartin

Rehab Group / National Learning Network

Representatives

Vernon Hegarty  of SIPTU

Aleksandra Tillakaratne of  IBEC

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-00039610-001

04/09/2020

The issue in contention concerns the alleged Unfair Dismissal of the Complainant, an Instructor, with the National Learning Network, part of the REHAB Organisation, by the Organisation.

The Complainant alleged that the Respondent Employer misused Section 2(2) of the Unfair Dismissals Act,1977 in dismissing her for the “expiry of a fixed term/specified purposecontract” when clearly there was available work for her, and she had been verbally assured that her Contact would be renewed.

The employment had commenced on the 21st of May 2018 (first contract) and ended (second contract) on the 6th of March 2020.

The rate of pay was €2,022 per month for 30-hour week.

The Complainant gave detailed written and documentary evidence supported by an extensive Oral Testimony. She was assisted by a former colleague, Ms. S, as an oral witness.  

Both Oral testimonies were extensively cross examined by the Respondent Representative, Ms. Tillakaratne

The Complainant had commenced as a “Relief Instructor” in May of 2018 on a Fixed Term (12 months) Contract. Prior to this contract expiring she had secured a full time (36 hours) Fixed term Contract beginning on the 11th of March 2019.

The second contract has no specific reference to any specified purpose. The Complainant was of the view that she was filling in for a colleague who was taking time out to cover for a family member and her return date was very uncertain.

During her time with the Respondent the Complainant was totally professional and caring to the needs of the service users.

In late 2019 issues arose over the service needs and organisational response to the needs of a Service Client, for anonymity referred to as Client A. This was a very complicated and challenging situation. A number of meetings were held, beginning in November 2019, with HSE and Rehab personnel and various proposals were made. It was clear that additional resources were needed to provide for Client A. The Complainant had developed a good working relationship with Client A despite his occasionally very challenging behaviours. She felt that she was a key resource for him. Regrettably he was subject to an accident in care on the 14th of January 2020 and the Management follow up as regards her involvement had, to quote her directly, “cast a negative spell” over her relationship with Managers.

At a January meeting, at or about the 20th of January 2020 Client A was discussed by the entire Team. At this meeting attended by Senior Executives, Mr. W and Mr T, Mr T gave what could only be construed by a reasonable person as assurances to the Complainant that she would continue after the 6th of March 2020, her expiry date.

None the less on the 4th of February 2020 the Complainant was informed that her Fixed Term Contract was coming to an end on the 6th of March 2020. The Staff member, who was out on Carer’s Leave was retuning to work and the need to renew the Complainant’s contract did not now arise. The Complainant wrote to her manager, Ms. Th on the 12th of February expressing her severe disappointment and outlining what she felt had been assured to her, especially in relation to continuing care for Client A. Unfortunately, due to a personal Hospital procedure, the Complainant had to go on sick leave on the 20th of February and never returned to active work.

A formal Appeal was submitted on the 25th of August and replied to on the 7th of September 2020.

The Complainant referred to case law / Labour Court precedent regarding Section 2(2) (b) of the UD Act of 1977. The Complainant argued that Section 2(2) (b) only provides a legitimate Respondent defence where the only reason for the Dismissal is the expiry of the Contract. This was palpably not the case here as the situation regarding Client A was active at the time and Mr. T’s assurances from January seemed to have been overlooked, to say the least.

The Complainant referenced a number of Service Complaints she had raised during 2019 and strongly suggested that Management had come to regard her as a “Troublesome Employee”, that they were best without. With the Client A situation still active and her enormous positive contribution to his care, her non-renewal lacked all “objective”credibility.

Ms. S gave corroborative evidence in support of the Complainant and again referenced the Client A situation. Her recollection of the January meeting was that issues of HSE employment “Post approval” were raised by Mr T in response to queries from Mr W but the clear implication was that while no formal offer was ever made,  a positive outcome could be expected by the Complainant. This never happened.

In final summary the Complainant’s Representative, Mr Hegarty of SIPTU, made the case that there was a lot more to the ending of the Complainant’s employment that a simple UD 1977, Section 2(2) (B) expiry of a contract. It was a clear case of an Unfair Dismissal

The Respondent gave a detailed written submission and made an extensive Oral Testimony. Three Respondent Managers gave Oral testimony and were all cross examined by Mr Hegarty for the Complainant. Extensive evidence of Contracts of Employment and supporting correspondence were exhibited.

In essence the Respondent position was that the Complainant was employed on a Fixed Term contract that had expired. The vacancy was to cover Carer’s Leave of a Permanent Staff member. This Staff member notified Management in December 2019 that she planned to return to work in March 2019. Accordingly, the normal expiry of the Complainant’s contract took place. Under UD 1977 Section 2 (2) (b) – the Exclusions clause -the case has no merit.

The Respondent addressed via witnesses the issue that the Complainant was dismissed because she had raised Service care issues to the annoyance of Management. This was resolutely denied especially as regards Client A.  Client A was a very, almost unique, situation and Manager, Mr T was heavily involved on a day to day basis. The Complainant had been of great assistance to Client A, but she was not the only person involved.

Mr T and the Multi-Disciplinary team (MDT) had always been centrally involved with Client A. During her employment the Complainant had never formally raised any concerns regarding Client A and the issues she had raised were largely infrastructural, broken patient hoists etc. These were normal operational issues and resolved locally.

In regard to the situation regarding Client A, Mr Tansy, HSE Executive, in his verbal evidence agreed that he situation regarding Client A was very unusual. He was a very challenging client and the entire MDT had gotten involved. Client A was challenging for the Organisation as their role was primarily a Training function. Client A had very broad-spectrum needs. Various option such as extra Personal Needs Assistants and a dedicated Learning instructor were discussed. The MDT meeting in January had been broad ranging with many ideas considered. He was clear however that no offers of additional employment were made to the Complainant as regards ongoing care for Client A. He was changed from the Organisation’s care sometime later.

In further evidence from Ms. Thornton, Area Manager, and Ms Ballantyne, HR of the Organisation, the mechanics of the ending of the Complainant’s employment were discussed. She had been written to in early February when the Permanent Post Holder had confirmed that she was coming back to work. This was standard practice.  The Complainant had made a number of complaints regarding systems etc but nothing unusual. One complaint was regarding a chair that had collapsed and another regrading a slippery floor. The Complainant had raised issues, supported by Ms S, in late 2019 and January 2020 regarding the care of Client A. However, the MDT were all actively involved with the Client A situation and the issues raised by the Complainant fell more into that area.

As regards the January 2020 meeting, on or about the 20th, both witnesses corroborated Mr T in his statements that no job offers or even “positive assurances “were given to the Complainant regarding her continued employment post march. The Complainant had sought another Respondent position in Longford. The HR team had assisted her in making her application via the HR Portal.

As regards an Appeal it was agreed by Ms. T and Ms B that the Complainant had queried in February why she was being let go. The Complainant had queried why a more junior staff member was being continued. The Complainant felt that she had a right to return to her first job, Contract No I, when Contract No 2 finished. It was explained that this was not possible as the job in Contact No One was filled.

In final summary the Representative Ms Tillakaratne summarised the Respondent case. It was a simple case of the ending of a Section 2 (2) (b) contract and the UD Act of 1977 does not accordingly apply. There was no “Negative Agenda” against the Complainant at play.

3:1     The Law. – Natural Justice

In an Unfair Dismissal situation, the guiding principle has to be that of Natural Justice.

In Frizelle v New Ross Credit Union Ltd, [ 1997] IEHC Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

“1.

The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2.

Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3.

The employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4.

The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

5.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

More recently SI 146 of 2000 –Code of Practice on Grievance and Disciplinary Procedures has codified this Natural Justice principle into a set of guidelines.

3:2        The Role of the Adjudicator

There is extensive legal Authority regarding the principle that the Tribunal or the Adjudicator is not to substitute themselves for Employer and effectively engage in a de facto rerunning of a Disciplinary case.

The cases of Foley v Post Office [2000] ICR 1283 was referenced in the Irish High Court by McGovern J in the case of Doyle v Asilo Commercial Limited [2008] IEHC 445

“It is not the function of the Courts to substitute itself for the employer and to make its own decision on the merits of the employer’s decision to dismiss. As Mumery LJ stated in Foley v The Post Office at page 1295:

        “The employer, not the tribunal is the proper person to conduct the investigation into alleged  misconduct. The function of the tribunal is to decide whether the investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation ,is a reasonable response.”

The point is developed further in the Court of Appeal decision in the Iceland Frozen Foods v Jones [1983] ICR 17 where the “Band of Reasonableness” principle was elaborated uponat length.

3:3     Review of the Evidence both written and Oral.

Key Legislation / Evidence Requirements & Burden of Proof.

Extensive written evidence was presented by the Respondent and supported by considerable witness evidence at the Oral hearing. Full cross examination of the evidence and witnesses took place by the Complainant’s SIPTU representative.

Likewise, the oral evidence of the Complainant was examined by the Respondent’s representative.

3:3:1         Key Legislation

Section 2 -Exclusions - Unfair Dismissals Act ,1977

(2) Subject to subsection (2A), this Act shall not apply in relation to—

(a) dismissal where the employment was under a contract of employment for a fixed term made before the 16th day of September 1976, and the dismissal consisted only of the expiry of the term without its being renewed under the same contract, or

(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.

The Respondent pointed to the contracts of employment and specifically the contract dated March 8th, 2019. The Contract was Headed “Fixed Term contract of Employment”. Section 3 stated that

“This is a fixed term contract of employment and therefore the provisions of the Unfair Dismissals act,1997 to 2001, will not apply to the termination of this contract where such termination is by reason only of the expiry of this fixed term.”

The key Complainant argument was that the whole situation regarding Client A had been developing, resource allocations including staffing needs were being discussed and the Complainant was accepted as being a key player for Client A. However, she felt that she had become a “Troublesome employee” and the Respondent was happy to let her go even though a “real job” still existed for her. She firmly believed that she had been given strong management assurances to this effect especially from the January 2020 review meeting.

The Respondent pointed to the fact that the Complainant occupied a vacancy arising from the Carer’s leave of a permanent post holder/staff member who had indicated and confirmed that she was returning to work.

The oral testimony from Respondent Managers. Ms. T, Mr T and Ms B all pointed to a comprehensive and largely positive engagement with the Complainant over general service issues and the care of Client A. These Testimonies were supported by meeting minutes. From an outside view point it was hard to see anything of so grievous a nature as to sustain the Complainant’s arguments of a “negative agenda” against her.

3:3:2        Burden of Proof

In this case the key issue is the applicability of Section 2(2)(b) and in particular the applicability of the “Only” reference.

 Taking Justice Flood’s comments above especially Points 3 and 4

3.

The employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4.

The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

In the case in hand the explanations offered by the Respondent Employer were based both Orally and In Written from on the naturalexpiry of a Fixed Term Contract.

The Burden of Proof really rests with the Complainant to raise the Troublesome Employee argument to such a degree that the Balance of Probability will move in their favour. This is not a simple task for the Employee

Five persons, three for the Respondent and two for the Complainant gave Oral testimony and a wide range of issues was covered especially the care requirements of Client A.

The issue of what if any “Assurances” were given to the Complainant regarding a renewal of contact or a reversion to her position in her first Contract were discussed.

Having carefully evaluated all the evidence and in particular the Oral testimony from the Witnesses for both sides it was not possible to find a strong enough case to support the Troublesome Employee “malign scenario.”.

Regarding whether or not there was a proper Appeal, the HR evidence from Ms B pointed to the Complainant having written in February 2020 querying her proposed termination and the rationale for the retention of another shorter service employee. SIPTU had also corresponded in late July. The Respondent evidence was that the Complainant understood her situation and had expressed strong interest in another position in Longford. She had been helped with IT issues in this regard. No formal written appeal had ever been received.

The brief hospitalisation of the Complainant in February and the entire covid Scenario had not helped but the balance has to be that the Appeal / non-Appeal issue, while important ,did not carry sufficient weight to overcome the Section 2(2)(b) Respondent case.

3:4         Final conclusion

The final conclusion has to be that having carefully reviewed all the evidence presented, especially the Oral Testimony, the Balance of Probability has to lie with the Respondent. Section 2(2)(b) is deemed to apply, a Fixed Term contract expired, and the Unfair Dismissals Act does not apply.

The claim for Unfair Dismissal fails.

Fixed Term Contract, Unfair Dismissal