Complainant

Respondent

Parties

Paula  McCormack

Head of Primary Care Services, CHO8, HSE Midlands

Representatives

  Self-Represented

Mary Quinn, HR Specialist

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00045176-001

13/07/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00045176-002

13/07/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00045176-003

13/07/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00045176-004

13/07/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00045176-005

13/07/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00045176-006

13/07/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00045176-007

13/07/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00045176-008

13/07/2021

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

CA-00045176-009

13/07/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

CA-00045176-011

13/07/2021

The issues in contention concerned a number of complaints (Wages, Working Time, Annual Leave, Discrimination and Unfair Dismissal) by an Agency worker employed in a Grade 3 Clerical Officer capacity by the Primary Care Department of the HSE.  The placement began on the 18th October 2019 and ended on the 16th January 2021.

The Gross weekly pay was € 502.46.

1:1        Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00045176-001

Did not receive Sunday Pay

1:2       Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00045176-002

A shortfall in proper wages not paid.

1:3        Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00045176-003

Did not receive proper Daily Rest as specified in the Act.

1:4        Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00045176-004

The Complainant was expected to work in excess of 48 Hours per week.

1:5        Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00045176-005

The Complainant was never informed of Work Starting and Finishing Times

1:6        Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00045176-006

The Complainant was never informed in advance of additional hours required.

1:7         Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00045176-007

The Complainant did not receive a Statement in Writing of her Terms and Conditions of Employment.

1:8         Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00045176-008

The Complainant did not receive a Statement of her Core Terms and Conditions.

1:9        Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00045176-009

The Complainant alleged that she was Constructively Dismissed due to the behaviour of her Employer -more particularly her Office Manager, Mr. B

The Complainant gave a lengthy Oral Testimony and submitted a detailed 8-page submission supporting her complaints.

A primary issue was that a number of serious problems had arisen with Mr B, her Office Manager including the sending of multiple late-night, work-related text, messages on early (02.48 hrs) Saturday mornings. The Office Manager Mr B had made life very difficult for her. He constantly changed her hours on Time Sheets to be submitted to MATRIX Recruitment (The Payment Agency) and did not pay her for any extra hours she worked. In the COVID emergency she had, on numerous occasions, to work extra hours simply to survive and keep the job in some sort of shape. The volumes of work were exceptional due to Covid. Proper Training was not provided for the Complainant event though she was expected to train in other new recruits.

 Mr B had made life impossible for her with changing demands and impossible targets. Deeming remarks about Work performance “Star” awards were constantly being made. In her role she had to support the Director / Head of Primary Care at a number of Regional Health Forum meetings all attended by Local Political Representatives. It was alleged that no proper allocation of resources or support was provided to the Complainant,

Mr B had effectively run a campaign of Harassment against her that would never have been accepted if she had been a Permanent HSE worker. The possibility /non possibility of a permanent job in the HSE was constantly used as a threat. Eventually she was forced to take stress leave in December 2020 and over the Christmas period had realised that she had no option but to resign.

It was acknowledged that Mr JR, the Head of Community Care had acknowledged her issues. in a sympathetic manner she felt, on the 15th December 2020, but nothing further had come of it.

On reflection while out on Sick leave she had felt that she had no options but to leave.

1:10        Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

CA-00045176-011

The Complainant alleged that she was treated less favourably than comparable Permanent HSE Clerical Staff doing identical work. The Manager Mr B had a completely different attitude towards “Permanents” and was constantly getting Agency staff such as the Complainant to drop their own work to help a Permanent if they got busy.  Permanents were allowed to settle in slowly to the job, but Agency staff were expected to work without any training from day one.

Agency Staff were constantly being told that their employment could be ended arbitrarily by the Manager. Accordingly, they had to keep quiet about any complaints they might have.

The Respondent submitted a Written Submission and gave oral testimony from Ms Quinn of the HSE HR Office – the Hirer. Detailed Pay Roll Records were provided by Matrix Recruitment Group, the Employer.

Ms Quinn, for the HSE, stated that if any proven Payroll or Holiday discrepancies were discovered during the Adjudication process they would be immediately rectified by the HSE.

2:1        Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00045176-001

Did not receive Sunday Pay

Respondent stated that the Complainant was engaged on full HSE Clerical Officer Grade 3 Terms and Conditions. If Sunday Work was required, it would have been dealt with in keeping with the standard T &Cs

2:2       Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00045176-002

A shortfall in proper wages not paid.

There was no proper Complainant evidence to support this contention. Employer Wage records were presented in evidence. Ms Quinn referred to her opening statement regarding Payroll/Holidays.

2:3        Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00045176-003

Did not receive proper Daily Rest as specified in the Act.

Respondent stated that the Complainant was engaged on full HSE Clerical Officer Grade 3 Terms and Conditions. All breaks were allowed as standard.

2:4        Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00045176-004

The Complainant was expected to work in excess of 48 Hours per week.

Respondent stated that the Complainant was engaged on full HSE Clerical Officer Grade 3 Terms and Conditions. All breaks were allowed as standard. Working Time did not exceed statutory limitations.

2:5        Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00045176-005

The Complainant was never informed of Work Starting and Finishing Times

Respondent stated that the Complainant was engaged on full HSE Clerical Officer Grade 3 Terms and Conditions. All Hours were as standard.

2:6        Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00045176-006

The Complainant was never informed in advance of additional hours required.

Respondent stated that the Complainant was engaged on full HSE Clerical Officer Grade 3 Terms and Conditions. All Hours were as standard.

2:7         Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00045176-007

The Complainant did not receive a Statement in Writing of her Terms and Conditions of Employment.

Full Written T & Cs from both Matrix and the HSE were given and cited in evidence.

2:8         Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00045176-008

The Complainant did not receive a Statement of her Core Terms and Conditions.

Full written T & Cs were given and cited in evidence.

2:9        Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00045176-009

The Complainant alleged that she was Constructively Dismissed due to the behaviour of her Employer.

This was absolutely refuted. The Complainant resigned of her own volition on the 4th January 2021.

It was acknowledged that she had worked exceptionally well in a most difficult HSE COVID response situation. A number of issues had arisen with Mr B, her Office Manager including the sending of multiple late-night, work-related text, messages on early (02.48 hrs) Saturday mornings. The Office Manager Mr B had not made life very difficult for her. The change in Hours on Time Sheets to be submitted to MATRIX Recruitment (The Payment Agency) was a normal Office Administration routine where Sick leave and Flexi Time issues arose.  It was not true that she was not paid or given Flexi leave for any extra hours she worked.

The exact same rules regarding Time and Flexi Hours applied to Agency Staff as to Permanents. Naturally there would be occasional differences of opinion between a Manager and Staff regarding Hours and Flexi. This was a normal situation and nothing personal against the Complainant.

In the COVID emergency she had, on numerous occasions, to work extra hours simply to survive and keep the job in some sort of shape. The volumes of work in Primary Care were exceptional due to COVID and the Head of Primary Care, Mr JR, was very appreciative of the work done by the Complainant.

As regards alleged difficulties with Mr B, the overall Manager, Mr JR, became aware of these and was investigating in December. It had to be appreciated that he had an extra ordinary personal workload at this time and a delay had to be excused.

However, the Complainant resigned on the 4th January 2021 before any possible outcomes could take place.

2:10        Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

CA-00045176-011

The Complainant alleged that she was treated less favourably than comparable Permanent HSE Clerical Staff doing identical work. This was simply not the case. All staff were treated the same in all aspects of the job.

It was in the middle of the COVID emergency, and Primary Care was in the very Front Line of the HSE response. The contribution of all staff irrespective of Categorisation was critical and exceptional.

3:1         General Comments – Legal Position /Precedents.

There are six pieces of Legislation referenced in this case ranging from the Unfair Dismissals Act,1977, Organisation of Working Time Act, 1997 to the Protection of Employees (Temporary Agency Work) Act,2012.

The sworn Oral testimony from the Parties was crucial and it was clear that the Unfair Dismissal /Constructive Dismissal allegation was central to the entire situation. Accordingly, the alleged Dismissal case will be considered first.

3:2    Constructive Dismissal complaint (CA-00045176-009)   

The context was crucial. It was the COVID 19 crisis, and the Primary Care Office was very front line in the HSE Response.  Normal Office routines had to be radically adjusted in a manner unseen before the crisis.  All the disputed issues seemed to hinge on the disputed working relationship, in the Primary Care Office, between the Complainant and her Manager Mr. B.

It was against this background that the Constructive Dismissal complaint (CA-00045176-009) has to be seen.

In any Dismissal case the overall Legal Position is that Natural Justice has to be paramount and the deciding factor.

As an aid the two normal Legal Tests, of firstly Breach of Employment Contract and Secondly, Unreasonable Behaviours, have to be considered. A further review of the Use of Employment Procedures by the Parties is now generally accepted as a Third Test.

The Act is also conscious as to the influence that SI 146 of 2000 – Statutory Code of Practice on Grievance and Disciplinary Procedures has had.

These Tests are aides to an Adjudication decision. It is not necessary to Pass or Fail them in totality.

3:2:1      First Test – Breach of Employment Contract.

A Breach of the Employment Contract has to be very bad indeed, fundamental, to sustain a case. This generally means that basic Wages/Holidays are not paid and the Terms of Employment/Duties etc are completely upended.

In this case neither situation applied. The HSE Clerical officer contract was utilised and all normal wages etc were paid. The duties while varied and COVID influenced could not be described as totally departing in a drastic manner from the Contract.

From reviewing all the Written materials and the Oral Testimony the Adjudication view has to be that there was no fundamental breach of contract to sustain a Constructive dismissal case.

3:2:2       Second Test /Unreasonable Behaviours by either Party.

Like the Breach of Contract situation Unreasonable Behaviours have to be very bad indeed – egregious is the word often used in Legal Judgements.

The Oral Testimony, supported by the Written submissions, was crucial here. There can be no doubt that the relationship between the Complainant and Mr B was difficult.

The sending of Work-related Text Messages at 02.48 on a Saturday morning, to an employee on Sick leave, was completely inappropriate by any standard. The evidence, under oath, given by the Complainant was a catalogue of differences with Mr B.

Mr B did not give evidence. This left the Adjudication with having to rely on the Oral Testimony of the Complainant as regards events prior to the Resignation.

Post the Resignation Mr B submitted a detailed reply to the Complainants’ lengthy letter of Resignation. The HSE referenced this reply is support of their case.

The Adjudication view, following a detailed review of the Written and Oral Testimony, has to be that the Complainant was possibly subjected to Unreasonable Behaviours such as to justify her Resignation.

This view has to be tempered by the fact that her Resignation took place while Mr JR was reviewing the matter. The Christmas break took place at this time and Mr JR cannot be faulted for any delays in taking next steps. The HSE and Matrix have very well-developed internal Procedures in this HR area. The Complainant appeared not to utilise them.

3:2:3        Use of Employment Procedures by either side

The Complainant argued that she had made numerous approached to Ms M of Matrix Group, her Point of Contact, but these were basically ignored. She also tried to raise issue at various staff meetings but without success. Her final contact had been with the Head of Primary care on the 15th of December.  From the evidence it was clear that the COVID situation was almost overwhelming the normal office routines and a latitude in regard to Employment procedures has to be allowed.  

However, the HSE has very well-developed Employment & Grievance Procedures as does the Matrix Group. Failure to properly utilise these procedures significantly weakens the Complainant case.

It has to be noted that the HSE had in 2020 suspended almost all HR/Grievances procedures for most of the year to allow full concentration on Health care matters.

3:2:4        Unfair Dismissal Adjudication conclusion

Constructive Dismissal Conclusions

In final conclusion, the Adjudication view, bearing in mind the Oral Testimony and the written materials presented, is that Unreasonable Behaviours sufficient to ground a Constructive Dismissal case were adequately set out by the Complainant.

However, it was a marginal conclusion and has to be reflected in any Redress awards to be made.

3:3 Remaining Complaints

CA-00045176-001

Did not receive Sunday Pay

The Adjudication view has to be that as normal HSE T &Cs applied Sunday pay was not an issue. The HSE, Ms Quinn undertook to rectify any shortfalls if the Complainant identified any.

3:4       Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00045176-002

A shortfall in proper wages not paid.

There was no proper Complainant evidence to support this contention. Employer Wage records were presented in evidence.

The HSE, Ms Quinn, undertook to rectify any shortfalls if the Complainant identified any.

3:5        Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00045176-003

Did not receive proper Daily Rest as specified in the Act. This was resolutely denied by the Respondent. Respondent stated that the Complainant was engaged on full HSE Clerical Officer Grade 3 Terms and Conditions. All breaks were allowed as standard.

Hard evidence was lacking, and the balance of probability has to lie with the Respondent.

3:6        Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00045176-004

The Complainant was expected to work in excess of 48 Hours per week.

This was denied by the HSE Representative. 

Respondent stated that the Complainant was engaged on full HSE Clerical Officer Grade 3 Terms and Conditions. All breaks were allowed as standard. Working Time did not exceed statutory limitations.

Normal HSE T & Cs had applied, and Flexi Time had been allowed. Payroll records were given in evidence.

On balance the case has to be for the HSE.

3:7        Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00045176-005

The Complainant was never informed of Work Starting and Finishing Times

Respondent stated that the Complainant was engaged on full HSE Clerical Officer Grade 3 Terms and Conditions. All Hours were as standard. It was acknowledged that it was the COVID emergency and flexibility had applied especially regarding the Regional Forum meetings.

On overall review the case has to be with the HSE on this point.

3:8        Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00045176-006

The Complainant was never informed in advance of additional hours required.

Respondent stated that the Complainant was engaged on full HSE Clerical Officer Grade 3 Terms and Conditions. All Hours were as standard.

The Adjudication view has to be that it was the COVID emergency and on balance a breach of this section of the Act has not been adequately set out.

3:9         Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00045176-007

The Complainant did not receive a Statement in Writing of her Terms and Conditions of Employment.

Full T & Cs were given and cited in Respondent evidence. The Complainant has not satisfactorily made out this complaint.

3:10         Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00045176-008

The Complainant did not receive a Statement of her Core Terms and Conditions.

Full T & Cs were given and cited in Respondent evidence.

The Adjudication view is that the Complainant has not satisfactorily made out this complaint.

3:11        Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

CA-00045176-011

The Complainant alleged that she was treated less favourably than comparable Permanent HSE Clerical Staff doing identical work. The Respondent argued that this was simply not the case. All staff were treated the same in all aspects of the job.

It was in the middle of the COVID emergency, and Primary Care was in the very Front Line of the HSE response. The contribution of all staff irrespective of Categorisation was critical and exceptional.

The Office dynamic between the Complainant and Mr B was not helpful but it did not amount, from the Written materials and Oral Testimony, to a direct systematic Discrimination or Victimisation of the Complainant on a Temporary/Agency v Permanent basis.

On balance and from the written materials supplied by the Respondent supported by their evidence the case for alleged “less favourable treatment” in a major manner has not been successfully made out by the Complainant.

Constructive Dismissal, Agency Work, Sunday Pay, Working Hours, Start and Finish Times, Maximum Working Time, Daily Rest Periods, Shortfall in Wages.