Complainant

Respondent

Parties

Fionnuala  Mc Sweeney

Cork University Hospital

Representatives

 Irish Medical Organisation

Medical Manpower Manager

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-00052992-001

27/09/2022

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

CA-00052992-002

27/09/2022

On 27 September 2022, the Union on behalf of the complainant submitted two claims under the Protection of Employees (Fixed term work) Act, 2003

On June 1,2023, the parties were invited to attend a hearing set for the remote platform on 20 July at 11.30 am.

In the absence of submissions from either party, on July 14, 2023, I reached out to the Union to request an outline submission in the case. I did not receive any response.

In the run up to the hearing, both parties confirmed their attendance on the remote platform.

In advance of the hearing, the Union indicated that the case may be settled and sought permission to attend the hearing to seek an adjournment to that end.

The Union was advised to attend at the Remote hearing and pursue the request to adjourn, pending implementation of what ever agreement was in being between the parties.

Once more, both parties conveyed their agreement to attend.

On the day before the hearing, I was requested to clarify the WRC procedures surrounding.

 “Notification of settlement “

 I have included my response issued to the parties on July 19, 2023.

…….to clarify our procedures here at WRC surrounding a notification of settlement in this case. As you are aware, I wrote out seeking submissions in this case last week and did not receive any response. I have read emails this morning that the parties may have agreed to settle this case and I congratulate the parties if that is truly the case. In the meantime. preparations are underway to host your Remote hearing as advised to both parties. It is open to the IMO to withdraw this case if settled. If the IMO has not withdrawn the case by 11.30 am tomorrow, you will both appreciate that I will proceed to hear this case as planned and issue a decision in due course. In the event that the parties are seeking protected time to allow time to honour and implement an agreement, you will appreciate that I will require the attendance of the applicant to verify firstly that an agreement has occurred and secondly if consent to allow for implementation has been secured. I must ask that both parties respect our WRC procedures in this regard. This is very valuable State time, and we must use it efficiently. I am satisfied that I have now outlined the options open to the parties. Please confirm your attendance at Remote hearing if the case is not being withdrawn in advance. I will add this email to the electronic file in the case for record purposes.

 Thank you, Patsy Doyle, adjudicator.

In the absence of a withdrawal of claim, I proceeded to hearing. The hearing was attended by a representative of the respondent but no one from the Complainant side.

I am satisfied that the Convenor of the remote hearing went to extraordinary lengths to secure the Union attendance at hearing but was unsuccessful.

I thanked the Respondent representative for attending and proceeded to hold the hearing, which concluded at 11.55am. During this time, I permitted the Respondent representative an opportunity to contact the Union.

I subsequently received email contact from the Union which   outlined a diary clash, which prevented attendance at hearing.  The Union apologised for nonattendance and sought time to implement the Agreement.

On 8 August 2023, I wrote once more to the parties. I confirmed in the absence of a withdrawal of claim, I would press on with my decision and submit to PRU.

One month has now passed from the hearing day and I have as indicated in my earlier correspondence with the parties pressed on with the decision in the case.

On 27 September 2022, the Union submitted two complaints under the fixed term legislation on behalf of their member, Dr Mc Sweeney.

The employment relationship was described as an 8 hour a week pattern,

CA-00052992-001

The Complainant had been employed with the HSE since 2005 and worked at the hospital since August 2017. The Complainant had not been provided with a permanent contract.

CA-00052992-002

The Complainant was refused access to the occupational pension scheme. She claimed pro rata pension.

The Respondent confirmed at hearing that a settlement applied in another case had been applied in this case.

CA-00052992-001

The Respondent confirmed at hearing that a settlement applied in another case had been applied in this case.

CA-00052992-002

The Respondent confirmed at hearing that a settlement applied in another case had been applied in this case.

I have been requested to make two decisions in this case. In reaching my decision, I have endeavoured to obtain outline submissions in advance of and in preparation for the hearing.

I have endeavoured to manage the positive news of settlement but was without the procedural co-operation of the Union in that regard. The Union was required to attend the remote hearing. I would have accepted a substitute officer to communicate news on the agreement, which was not disputed by the respondent.

At any rate, it falls to me to observe that the complaints were submitted for management and decision to the WRC. The WRC procedures require that the positive development of settlement is managed in a particular way, in person. The reason for this is to protect a settlement for both parties and to allow the parties a respectful interval to affect the compromise resolution reached.

I have no awareness of the composition of the Agreement in this case.

I have found that the Union did not honour its undertaking given to attend the hearing or provide a satisfactory reason why this did not occur.

I have also found that 4 weeks have now passed and while prompted on August 8, 2023, for follow up, I have not received notice of withdrawal from the complainant.

I must now follow my stated intention shared with the parties that in the absence of a withdrawal, I would move to a decision in the case.

I was troubled by the  inconsistent approach adopted by the Union in this case and would request a reflection .

CA-00052992-001

I have been informed that a settlement has been reached in this case by both parties separately. There was no attendance at hearing by the Union, so as to assist me in completing the administrative obligations around managing notification of settlement/withdrawal. I found this to be unreasonable.

As no evidence was led at hearing. I must find that the claim before me is not well founded.

CA-00052992-002

I have been informed that a settlement has been reached in this case by both parties separately. There was no attendance at hearing by the Union, so as to assist me in completing my administrative obligations around managing notification of settlement/withdrawal. I found this to be unreasonable.

As no evidence was led at hearing. I must find that the claim before me is not well founded.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints 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 me to make a decision in respect of Sections 6 and 9 of the Act

CA-00052992-001

The claim is not well founded.

 CA-00052992-002

The claim is not well founded.

Access to contract of indefinite duration, access to occupational pension. No appearance at hearing by the Union.