ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00043469
Parties:
| Complainant | Respondent |
Parties | Christine Connolly | Health Service Executive South Tipperary Mental Health Services |
Representatives | Peter Reilly James Reilly & Sons Solicitors | Emily Sexton Comyn Kelleher Tobin Solicitors |
Complaint(s):
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-00054236-001 | 19/12/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00054236-002 | 19/12/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012 | CA-00054236-003 | 19/12/2022 |
Date of Adjudication Hearing: 25/05/2023
Workplace Relations Commission Adjudication Officer: Roger McGrath
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
The matter was heard by way of remote hearing on 25 May 2023, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.
In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021, the Parties were informed in advance that the Hearing would be in Public, that testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for. The required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury were explained to all parties. Full cross examination of witnesses was allowed.
Background:
The Complainant is an agency worker who was employed by the HSE in St Luke’s Hospital, Clonmel. She commenced employment with the Respondent on 4 September 2018. Her employment in St Luke’s Hospital ended at the end on 30 June 2022. She was paid €750 gross per week. A complaint form was received by the WRC on 19 December 2022. A remote hearing of the case took place on 25 May 2023. |
Preliminary Point
A Preliminary Point was raised by the Respondent.
The Respondent provided a detailed written submission.
The Respondent submits that the Complainant was never a direct employee of the Respondent. The Complainant was an agency worker, employed or engaged by an employment agency. The Complainant was assigned by her agency to work in the services of the Respondent as a member of household staff. She was assigned to work in the Mental Health Service of the Respondent at St. Luke’s Hospital, Clonmel at the relevant time the matters complained of took place.
The Respondent submits that certain issues did arise regarding the Complainant in late June 2022 and these issues were referred to the Complainant’s direct employer, the employment agency, to deal with. The Respondent believes that the Complainant continued in employment with the agency, after June 2022. To the best of the Respondent’s knowledge, information and belief, the Complainant continues to be employed by the employment agency and appears to have been subsequently assigned to work in services operated by the Respondent other than the Mental Health Service at St. Luke’s Hospital, Clonmel.
The Respondent accepts that it was the “hirer” of the agency worker in question and that by virtue of Section 13 of the Unfair Dismissals (Amendment) Act 1993, the Complainant is deemed to be employed by the Respondent for the purpose of any redress under the Unfair Dismissal Act 1977 as amended.
Notwithstanding same, as a preliminary legal point the Respondent disputes that a dismissal took place and the fact of dismissal is in dispute. The Respondent considers that the claim of unfair dismissal is misconceived. The Respondent’s position is that neither the Respondent or the employment agency through which the Complainant was employed, dismissed the Complainant, either on 30th June 2022 or any other dates. Whilst the Respondent accepts the Complainant did not work in the Mental Health Services, St. Luke’s Hospital, Clonmel after 30th June 2022, the Respondent believes the Complainant continued in the employment of the employment agency after that date and the agency continued to pay her salary as appropriate.
It is the Respondent’s position that for section 13 of the Unfair Dismissals Act to apply, and for the Complainant to maintain a complaint of “unfair dismissal”, the Complainant must have been dismissed. “Dismissal” must mean that an individual’s employment ceases entirely. It is denied that the Complainant was dismissed as she continued to be employed by the agency.
The Respondent submits that there is (and must be) a difference in law between;
(a) the cessation of an assignment of an agency worker to a particular hirer; and
(b) the cessation of an assignment of an agency worker to a particular hirer which results in the termination of the individual’s employment with the agency. The Respondent submits that the termination of an assignment with a hirer/end user should not of itself give rise to an unfair dismissal claim. It would have to be followed by a termination of the individual’s employment by the agency.
Alternatively, the Respondent submits, that in circumstances where the Complainant was more or less immediately re-assigned to agency worker duties at another site operated by the Respondent, the Complainant cannot be said to have been “dismissed” by the Respondent. The Respondent refers to Section 2(4) of the Unfair Dismissals Act 1977, as amended, regarding “continuity of service” and the First Schedule to the Minimum Notice and Terms of Employment Act, 1973.
The Respondent also submits that the Complainant had a Contract of Employment with the agency commencing January 2016, long before she started working with the Respondent.
The Respondent’s position is that because the Respondent is not the Complainant’s direct employer, it is a matter for the direct employer, the agency, to conduct disciplinary proceedings against the agency worker rather than the hirer/end user.
In a supplementary submission on behalf of the Respondent submitted after the hearing of 25 May 2023 the Respondent reiterated its position that the Complainant was not dismissed as she remained in the employment of the HSE after her assignment to St Lukes in Clonmel ceased. The supplemental submission also reiterated the position that it is the responsibility of the agency to carry out any disciplinary procedures against an agency worker. The submission referred to ADJ-00019906, Agency Worker v Health Service Provider, which it was submitted was on all fours with this instant case. The Respondent also submitted several other cases which it believes relevant to this case.
Complainant’s Response to Preliminary Point
The Complainant provided a supplemental written submission regarding the Preliminary Point raised by the Respondent. In this submission the Complainant referred to a number of WRC Decisions with what it asserts are similar factual matrices to this instant case. Referring to ADJ-0008131, where the Adjudication Officer found that the hirer had unfairly dismissed the Complainant despite the Complainant remaining in the employ of the employment agency.
Decision on the Preliminary Point
In this instant case it is accepted by the Respondent that they were the hirer/end user and that the Complainant ceased to work with them in St Luke’s Hospital after June 2022. The Respondent proposes that as the Complainant continued to work for the agency and took up work in another HSE run organisation it cannot be said that a dismissal took place, therefore there cannot have been an unfair dismissal.
I have reviewed the material provided by the Respondent and the Complainant in their Submissions and Supplemental submissions and I find the following regarding the Preliminary Point.
It is accepted that agency workers have the same protection against unfair dismissal as those who are directlyemployed.
The fact that a worker continues to be employed by an agency having been let go by a hirer does not in any way absolve the hirer of their obligations to the worker to ensure they are treated fairly; the fact that a worker remains an employ of an agency does not mean that the hirer has fulfilled its obligations under the Act and or can disregard the tenets of natural justice.
The fact in this case that the Complainant was placed elsewhere by the agency after her employment ended in St Luke’s and that new end user happened to be the HSE is irrelevant as to the fact of dismissal. This is a happenstance, a mere coincidence, on another day she may well have been placed with a totally unconnected employer. This being the case I find that the Complainant’s employment ended around the end of June 2022 with the hirer and the question to be answered now is whether that ending was fair or unfair within the meaning of the 1977 Act.
CA-00054236-001; Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Summary of Complainant’s Case:
The Complainant provided a detailed written submission. The Complainant submits that on 27 June 2022, she was approached by the Household Supervisor who questioned her about a number of allegations made against her by another member of staff, who had accused the Complainant of threatening her. The Complainant refuted the allegations entirely. The Household Supervisor then emailed the Complainant’s line manager to determine if there were any witnesses to the alleged incident, she was informed that there was not. The manager informed the Household Supervisor that the Complainant was allegedly caught reading confidential information about a client of the Respondent. The line manager requested that the Complainant be removed from the Respondent’s premises with immediate effect due to the alleged GDPR breach. The Household Supervisor explained to the Complainant that in light of the allegations it would be better if she finished her shift in a different unit. The Complainant was assured a proper investigation would take place. The Complainant was invited to an investigation with the employment agency which took place on 4 July 2022. The outcome of the investigation was that there were no grounds for disciplinary action to be taken against the Complainant. This outcome was communicated to the Respondent on 5 July 2022. On the same day the agency removed the Complainant from the Respondent’s services with immediate effect as per the Respondent’s instruction. The Complainant submits that it is clear that the Respondent had dismissed the Complainant prior to any investigation being under taken by the agency. The Complainant submits that the Respondent did carry out an investigation however, the extent of the investigation was the creation of two Incident Report Forms, a witness statement from the alleged victim and notes from the Household Supervisor. There are no formal investigation notes,noformalinterview took place with the Complainant whereby she was afforded fair procedures to respond to any allegations against her. On 5 July 2022, the Complainant was placed in another position with significantly reduced hours. The Complainant gave direct evidence on affirmation at the hearing. She stated that she had started working in St Luke’s in September 2018 as a cleaner/caterer. On 27 June 2022 she was accused of threatening a colleague and was asked to work in a different area. She received a call from the employment agency telling her that she was not allowed to remain on the grounds of St Luke’s. On 5 July 2022, she started in another HSE facility. She stated that the only investigation that she had been involved in was one carried out by the agency. In cross examination, the Complainant was asked about the allegations which had been made; she denied the allegations. The Complainant submits that the investigation carried out by the Respondent was procedurally flawed and denied her the right to her fair procedures. The respondent failed to act reasonably in the investigation. The Complainant submits that the Respondent failed to act reasonably in circumstances where the Complainant clearly denied the allegations levelled against her and in a “knee jerk” reaction dismissed the Complainant. |
Summary of Respondent’s Case:
The Respondent’s position in this case is that no dismissal took place as argued in the preliminary case above. Ms Eileen Nagle gave direct evidence on oath at the hearing. The witness stated that she is a senior manager in St Luke’s. She spoke with the member of staff who had made the allegations against the Complainant on 27 June 2022. The member of staff was extremely upset after her altercation with the Complainant. The witness stated that as the Complainant was a direct employee of the agency it was up to the agency to carry out an investigation into the allegations. When asked about a meeting she had with the Household Supervisor, the witness agreed that a decision had been made to dismiss the Complainant. Ms Tara Guterly, Household Supervisor, gave direct evidence on oath at the hearing. The witness stated that when the second allegation against the Complainant came to light, she had a meeting with Ms Nagle and they decided that the Complainant should be dismissed; they believed the Complainant would be employed elsewhere by the agency. The witness agreed that no investigation had taken place into the matter. |
Findings and Conclusions:
In this case it is clear from the evidence adduced that once the allegations were made against the Complainant a decision was made very quickly by the Respondent’s management team that the Complainant should be let go from St Luke’s post-haste. The idea that an investigation was required does not seem to have been considered in any way. In all cases of dismissal for conduct, an investigation by the employer is required. The precise requirements of each investigation will be determined by the facts of the case, but the onus will be on the employer to show that it was "fair" in the sense of being open-mined and 'full' in the sense that no issue which might reasonably have a bearing on the decision was left unexplored. If an investigation fails to meet these requirements, the decision to dismiss is likely to be found unfair. In this case no real investigation took place. I suspect the Respondent’s management involved in making that decision were under the mistaken belief that they were merely moving the Complainant on not dismissing her. However, they were and they did so without adhering to the basic tenets of natural justice. There is an important provision in the UD Act S. 13, which fixes the end user or hirer, of an agency worker’s services liable where an agency worker is found to have been unfairly dismissed. It should be noted that unlike other employment statutes (which generally provide that the person who is liable for paying wages is deemed to be the employer) under this Act the hirer is deemed to be the employer irrespective of who pays the wages. Hence, where an agency worker is unfairly dismissed, the hirer and not the agency will be the appropriate respondent. I find this was an unfair dismissal and the HSE are the correct Respondent. A compensatory award is justified in this case. As outlined above the Complainant was not out of work for long, however, in her new job she was not able to work the same number of hours that she had in St Luke’s. The Complainant’s loss to date of hearing was approximately €7,000, with an ongoing loss of €182 per week. In the circumstances, I believe an award of €11,732 just and equitable. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I find the Complainant was unfairly dismissed and I award her €11,732. |
CA-00054236-002; Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973
Summary of Complainant’s Case:
The Complainant submits that the Respondent failed to provide the Complainant with a statutory notice period or payment in lieu thereof based on the of the exception outlined in section 8 of the Act (dismissal for gross misconduct). In circumstances where this dismissal was unfair, it is submitted that the Respondent does not have a right to rely on section 8 of the Act and that, as such, the Respondent violated section 4 of the Minimum Notice and Terms of Employment Act, 1973. |
Summary of Respondent’s Case:
Regarding the Minimum Notice claim the Respondent submits this too is predicated on whether the Respondent is correctly identified, in any case if there was no “dismissal” or “termination of employment” then no claim under this legislation can be maintained. |
Findings and Conclusions:
The 1973 Act states: 4.— (1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section. (2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be— ( a) if the employee has been in the continuous service of his employer for less than two years, one week, ( b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks, ( c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks, ( d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks, ( e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks. I find the Complainant was summarily dismissed, unfairly. She is therefore due a payment in lieu of notice. The Complainant commenced employment with the Respondent in September 2018 and her employment ended in June 2022 therefore she had more than three years’ service with the Respondent and was therefore entitled to two weeks’ notice payment, which she did not receive. The Respondent has not met its obligations under the Act.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The Act was contravened. I order the Respondent to pay the Complainant two weeks’ pay, that is €1,500. |
C CA-00054236-003: Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012
Summary of Complainant’s Case:
The Complainant submits that she was not informed of vacant positions available with the Respondent and was unfairly prohibited from applying for these roles. |
Summary of Respondent’s Case:
The claim under the Protection of Employees (Temporary Agency Work) Act 2012, is denied by the Respondent. The Respondent notes that the Complainant on her WRC complaint form refers to interviews held in November 2022, however, she has not elaborated on exactly to what positions she is referring. The Respondent asserts that there were no permanent vacancies advertised in Mental Health Services prior to 30 June 2022, for which interviews took place in November 2022, therefore the complaint is misconceived. In any event all agency staff are directed to vacancies advertised on the HSE website. |
Findings and Conclusions:
There was insufficient evidence adduced to support the Complainant’s case. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complaint is not well founded. |
Dated: 22/August/2023
Workplace Relations Commission Adjudication Officer: Roger McGrath
Key Words:
Agency worker, end user/hirer responsibility, natural justice, fair procedures |