Complainant

Respondent

Parties

Health Services Executive

Complainant

Respondent

Anonymised Parties

{A Health Care Assistant}

Representatives

Siobhan McCormack North Connacht and Ulster Citizens Information Centre

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-00048300-001

20/01/2022

The Complainant was employed by the HSE from 9th July 2018 on a fixed-term contract as Care Assistant.

The Complainant was employed by the HSE as a care assistant from 9th July 2018 on a temporary specified purpose contract of employment covering leave types. The contract was extended on 19th December 2020 up to 31st July 2021. The Complainant’s contract specified it can be terminated in the event of alternative arrangement to fill the post on a permanent basis or changes in service as a result of review or restructuring of the service.

The Complainant says he was unfairly dismissed by the HSE on 22nd June 2021 for non-adherence with public health and Infection control advice due to his difficulty in wearing masks for prolonged periods during the pandemic. The Complainant wore a mask when carrying out personal care, and did not wear it at other times when he could maintain the 2m social distance.  He was the only staff member in the facility. He informed his line managers about the issue. The Complainant has medically certified agoraphobia.

The Complainant received a text message which said the face mask policy was not being followed. He contacted his line manager and was told to contact Mr. Lyons Area Co-ordinator. He informed Mr. Lyons about his difficulty with restricted breathing, distress and claustrophobia and was told not to worry about it. He obtained a certificate from his doctor confirming the difficulty. He was then told by Mr. Lyons on 10th June 2021 he would be removed from his post forthwith for the protection of residents and staff. He was relocated to another centre but not given any tasks to carry out. He was isolated, and told not to contact other members of staff. He began suffering from stress.

On 11th June 2021, the Complainant was very distressed and contacted Occupational Health. He was told he had to be referred to Occupational Health by Mr. Lyons. Occupational Health said they would contact Mr. Lyons. By 17th June 2021, the Complainant had not heard from Mr. Lyons and broke down crying. Citizens Information sent a letter to Mr. Lyons alleging a breach of SI 296 of 202 Health Act 1947 (Section 31A-Temporary Restrictions) (Covid-19) (Face coverings in certain premises and Businesses Regulations and SI 572 of 2013 of the Safety Health and Welfare at Work (Biological Agents) Regulations 2013, and failure to reasonably accommodate the Complainant’s disability which restricts his ability to wear a face mask for long periods.

The Complainant was never assessed by the Respondent’s Occupational Health in relation to his medical complaint and it did not comply with the “current recommendations for use of PPE for possible or confirmed Covid-19 in a pandemic setting dated 9th February 2021” which provides surgical masks should be worn by all healthcare workers for all encounters of 15 minutes or more with other healthcare workers in the workplace where a distance of 2m cannot be obtained. The HSE did not carry out any risk assessment under the 2013 Biological Agents Regulations. The Complainant was then told by Mr. Lyons there was nowhere to put him. He received a letter of dismissal dated 22nd June 2021 stating he was no longer in a position to fulfil the full range of duties required as a Care Assistant and his fixed-term contract would not be continued.

The Respondent said the Complainant advised he would no longer be able to wear a mask continuously from 8th June 2021. As he is a Health Care Assistant caring for people in the Intellectual Disability Services, wearing a face mask is an essential requirement. The Complainant was notified he would have to be removed from front-line duties. He was offered alternative duties, maintenance and ground works but he was unwilling to do these. His temporary contract was due to cease on 31 July 2021. He was paid two week’s notice in lieu.

The Complainant submits the HSE are trying to use the fixed-term contract as a guise not to comply with fair procedures. He had no disciplinary record. The HSE did not follow disciplinary procedures. The Complainant says the unfair dismissal acts apply to his dismissal. The HSE did not refer the Complainant to occupational health or take his medical certificate in relation to the issue. The Complainant obtained another job but is earning less. The treatment was humiliating and degrading. It impacted his mental health adversely.

The Complainant seeks an extension of time to lodge his complaint of unfair dismissal. His representative says their records show it was submitted on 17th November 2021. The complaint was received by the Workplace Relations Commission on 20th January 2022 when the Complainant’s representative made contact as they had not received any acknowledgement. The Complainant’s representative says the hard copy form was sent to the WRC within six months of the dismissal on 30th June 2021, and a further form was sent in on 20th January 2022 which is only just outside the statutory six month time-limit. 

The Respondent attended the hearing on 8th November 2022. The Respondent sought an adjournment as they had not received notification of the claim and personnel were unavailable. An adjournment was granted, the Respondent were given three weeks to provide submissions in response.

There was no appearance by or on behalf of the Respondent at the hearing on 3rd February 2023.

I heard and considered the submissions and evidence of the Complainant.

Given the nature of the Complainant’s medical condition, I am anonymising his identity.

The Complainant was dismissed on 22nd June 2021 and paid two week’s notice in lieu. The Complainant’s representative says their records show a complaint was sent to the Workplace Relations Commission on 17th November 2021, but the Workplace Relations Commission have no record of receipt. A complaint was received by the Workplace Relations Commission from the Complainant on 20th January 2022.

S41 of the Workplace Relations Act 2015 provides;

(6) Subject to subsection (8) an Adjudication Officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of contravention to which the complaint relates…..

(8) An Adjudication Officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7)( but not later than 6 months after such expiration)as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

The established test for deciding if an extension of time should be granted for reasonable cause is set out in the Labour Court determination DWT0338 Cementation Skanska v Carroll.

“It is the Courts view that in considering if reasonable cause exists, it is for the Claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard but it must be applied to the facts and circumstances known to the Claimant at the material time. The Claimant’s failure to present the claim with the six-month time-limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the Claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

The length of the delay should be taken into account. A short delay may require only a sight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the Respondent has suffered prejudice by the delay and should also consider if the Claimant has a good arguable case”.

The Complainant intended to make a complaint within the statutory six months following dismissal. When the representative discovered the complaint was not received, another complaint was lodged quickly on his behalf. The delay was short. I am satisfied that there is reasonable cause to extend time to allow the complaint to proceed.

The Complainant was employed by the HSE as a care assistant from 9th July 2018 on a temporary specified purpose contract of employment covering leave types. The contract was extended on 19th December 2020 up to 31st July 2021. The Complainant’s contract specifies it can be terminated in the event of an alternative arrangement to fill the post on a permanent basis or changes in service as a result of review or restructuring of the service. It also provides “The Unfair Dismissals Acts 1977-2005 shall not apply to your dismissal consisting only of the cesser of the said purpose.” The contract was signed by both parties.

The Complainant was dismissed and given a letter dated 22nd June 2021 from his employer saying due to his continued non-adherence with Public Health and Infection Control advice not wearing a mask at all times in carrying out his duties, he is not in a position to fulfil the full range of duties required. The employer has an obligation under the Health & Safety Act to protect all employees and provide a safe place of work. In the letter he was notified the fixed-term contract was terminated.

However, the Complainant was not employed under a fixed-term contract but a fixed purpose contract covering leave. He did not receive any notification of the cessation of the purpose of his contract. Accordingly, the Complainant’s dismissal falls under the jurisdiction of the Unfair Dismissals Acts 1977 as amended.

Section 6 (1) of the Act provides a dismissal of an employee shall be deemed to be an unfair dismissal, unless having regard to all the circumstances there were substantial grounds justifying the dismissal. Section 6 (4) (1) of the Acts provide that without prejudice to the generality of Section 6 (1), the dismissal of an employee shall be deemed for the purpose of the Act not to be an unfair dismissal if it results wholly or mainly from one of the following:

(a)    the capability, competence and qualifications of the employee for performing work of the kind that he was employed by the employer to do:

(b)    the conduct of the employee,

(c)     the redundancy of the employee, and

(d)    the employee being unable to work or to continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under statute or imposed or under any statute or instrument made under statute.

Section 6 (1) (6) of the Act provides in determining whether the dismissal of the employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

Section 6 (1) (7) of the Act provides without prejudice to the generality of subsection 1 of this section, in determining if a dismissal is an unfair dismissal regard may be had, if the Adjudication Officer as the case may be, considers it appropriate to do so-

(a)    to the reasonableness of the conduct, or otherwise (whether by act or omission) of the employer in relation to the dismissal and,

(b)    to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee with the procedure referred to in S14 (1) of this Act, or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals Amendment Act 1993) of section 7 (2) of this Act.

The burden lies on the employer under the Act to show the Complainant’s dismissal resulted wholly or mainly from the capability or conduct of the employee. The Complainant’s contract of employment contains a requirement to conduct his duties in such a way to achieve high standards of work practice and patient/client care, and in the event of his failure to achieve these standards the disciplinary procedure will be invoked. The Respondent was clearly concerned by the failure of the Complainant to wear a mask consistently, however there is no evidence of any investigation by the HSE into the issue or disciplinary hearing conducted to allow the Complainant to respond to the complaints and consideration of SI 296 of 2020 Health Act 1947 (Section 31A-Temporary Restrictions) (Covid-19) (Face coverings in certain premises and Businesses) Regulations and the exemptions contained therein and current recommendations for use of PPE for possible or confirmed Covid-19 in a pandemic setting dated 9th February 2021. The HSE did not comply with fair procedures and SI 146 of 2000 Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000.

I find the Complainant was unfairly dismissed on substantive and procedural grounds. The Complainant has opted for compensation as the appropriate redress. He has financial loss of €9,606.88 taking into account his mitigation of loss. It is just and equitable the Respondent be directed to pay his loss of earnings €9,606.88.

The Complainant was unfairly dismissed. I direct payment of his financial loss of €9,606.88 by the Respondent.

Mask, certified disability, fair procedures