Complainant

Respondent

Parties

Tom  Cunningham

Health Service Executive

Representatives

 Connect Trade Union

 Byrne Wallace

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-00051847-001

26/07/2022

The complainant submits that he was unfairly dismissed.  The respondent submits that the complainant is not covered by the legislation as he has less than one years’ service and without prejudice to same, that the complainant was on probation and that the dismissal was fair.

The respondent submitted the correct name of the respondent and did not object to amending the name.

Preliminary Issue:  

It was submitted that the complainant did not have 12 months' service on the date of his dismissal and that the Act does not apply to the complainant as he commenced employment on 3 May 2021 and ceased on 29 April 2022.  It was further submitted that the exceptions to the one-year requirement, do not apply to the complainant.  The complainant was unambiguously notified by the respondent that the date of termination of his employment was 29 April 2022.   It was further submitted that it was irrelevant when Revenue was notified as irrespective of whether or not the Revenue was informed about the termination of the complainant's employment, the complainant's employment was unambiguously terminated with effect from 29 April 2022.

Preliminary Issue 2:

Without prejudice to any of the aforementioned it was submitted that the Act does not apply to the complainant as he was on probation and the Act excludes dismissals during probation.

Substantive Issue:

Without prejudice to any of the aforementioned it was submitted that the complainant was a probationer craftsman and the quality of his working during probation was consistently below the standard that was expected of him. He was subject to a fair probationary process, which included provision of feedback, fair assessment by an impartial manager, and appeals. He failed to successfully complete probation and was therefore dismissed. It was submitted that the respondent at all times acted appropriately in respect of the complainant and his ultimate dismissal was fair.

The disciplinary procedure of the respondent does not apply to the complainant as he was on probation. 

Section 1 of those procedures make clear (at page 1) that:

"This procedure covers all HSE employees with the following exceptions: Probationary employees (See Appendix 1 for procedure to apply to probationary employees). In cases of allegations of serious misconduct being made against a probationary employee, however the matter will be investigated in accordance with stage 4 of this disciplinary procedure. ..."

No allegations of serious misconduct were made against the complainant. Therefore, no provision of the Disciplinary Procedure other than Appendix 1 thereof applied to the complainant.

The evidence of Mr Ginnity was that he was advised by the complainant’s supervisor of concerns, with the work of the complainant and he advised the supervisor to follow the probation procedure.  Mr Ginnity advised that he was to review the complainant’s performance over 2 months from 3/2/22 following the withdrawal of a letter of dismissal.  He said that to his knowledge there have been 2 people dismissed for failing probation which included the complainant.  He submitted that he looked at all the documents, reports and believed the standard was not at the level expected and that he trusted the opinion of Mr C.  There was he said some evidence of good work also.  It was his understanding that a piece of work had to be redone.  It was his belief that the complainant had been given every opportunity to improve but that he came to the conclusion that the complainant did not meet the required standards.  Under cross examination Mr Ginnity said he made the decision to terminate the employment on the basis of the report of others and he believed the decision to decide whether to terminate was based on the full duration of the complainant’s work and not just work completed after the retraction of the dismissal letter 31 January 2022.

The complainant confirmed that the respondent’s name should be amended.

Preliminary Issue:

In response to the preliminary issue raised by the respondent that the complaint did not have the requisite service to be covered by the Act, the complainant submitted that they did not see this as a preliminary issue as the complainant had worked 11 months and 3 weeks.  The complainant had been told his dismissal was 29th April, but revenue records dated 10 June 2022 revealed that the complainant’s employment with the respondent was still active. Furthermore, the appropriate HR form was not completed until June and furthermore the decision regarding the complainant’s appeal of the dismissal was advised on 7th June 2022. 

Substantive Issue

The complainant was deemed successful following interview for the position of carpenter and commenced employment on 03/05/2021.  The respondent’s policy document refers to a performance review, but the complainant submits that he was the only new hire subject to a performance review.  The 3-month review was due to take place in August 2021 but did not commence until 12th October 2021, 5 months after his employment commenced.  While the policy provides that the line manager will conduct the review and which should have been, therefore, Mr A, the review was conducted by the Maintenance Manager Mr B.  During the review Mr B advised the complainant that his work was not up to standard, and the complainant was advised that a different manager, Mr C, had informed Mr B of this. 

This was disputed by the complainant who advised that the only time he had been spoken to about his work was when he was working through personal issues with the loss of his mother and his brother.  The complainant said that his direct line manager Mr A appeared happy with his work. The complainant was surprised at the input from Mr C as Mr C had never advised either the complainant directly or the complainant’s direct line manager Mr A that there were any issues with his work.  The complainant requested details of the allegations of poor work that were made about him, but Mr B refused to provide this information to the complainant. No performance improvement plan (PIP) had ever been provided to the complainant.

Following this flawed process, a further 8-month review was conducted.  This was attended by the complainant’s shop steward and once again Mr B when in fact it should have been Mr A the direct line manager in attendance.   Once again Mr B said that the complainant’s work was of a poor quality but provided nothing to support this.   The complainant was advised at this meeting that he would be dismissed, and no reasons were given.  The complainant was then wrongly accused of poor workmanship that had in fact being performed by outside contractors.  The complainant was informed that if he wanted proof, then he would need to get it through Freedom of Information Act.  Four days later a letter of dismissal arrived with no mention of an appeals process.  Eventually on 19th January 2022 the complainant was advised how to appeal, and submitted his appeal to Mr Geoff Ginnetty who was the line manager of Mr B. 

The union balloted for industrial action owing to the manner in which the complainant was treated and to avoid this the HR Manager Ms Hynes scheduled an appeal meeting and the outcome of the appeal was to reinstate the complainant.

It was decided that Mr Ginnetty would oversee the remainder of the reviews of the complainant, but the complainant submitted that Mr Ginnetty chose to cherry pick which outcomes he was going to apply.  A review meeting was held on 2nd March 2022 and the complainant requested training.  On 1st April 2022 Mr Ginnetty issued an email saying that Mr C had told Mr Ginnity the complainant could only be allocated certain tasks.  The complainant submitted that Mr C had been working from home since December 2021 and it was not appropriate that he was involved in a review of his performance.  On 7th April 2022 a meeting took place between the complainant and his union rep and Mr Ginnetty.  The complainant raised his concern that contractors were giving feedback on his work and that there was a bias against the complainant from the beginning and his request for training had not been facilitated.  On 29th April 2022 the complainant was advised that his employment was terminated.  The complainant appealed this, and it was heard on 5th May 2022 but the decision to dismiss was not overturned.  The complainant submitted that the findings in the appeal unilaterally changed the reporting structure.  The complainant requested a ‘mercy appeal’ but this was declined by the CEO of the respondent.

It was submitted that the complainant remained an employee on Revenue’s system as of 10th June 2022.  Furthermore, the complainant was advised on 8th June that the relevant HR form had not been completed and therefore the complainant remained on the pay roll system. It was submitted that the respondent discarded the probationary policy, the dignity at work policy and fair procedures and natural justice.  It was submitted the procedures were completely flawed and decisions were based on Mr C’s opinion who did not work with the complainant as he worked from home.  It was submitted that the opinion of Mr A the actual line manager of the complainant was never sought.  Reporting structures were changed, actions of middle management were defended, and the complainant was denied his right to a ‘mercy appeal’.

The evidence of the complainant was that he had completed a job poorly around the same time his mother and brother had just died.  He said no training had been identified and no negative review was given to him.  Under cross examination he disagreed that it was clear that he remained on probation.  He confirmed that he is a qualified carpenter and that he was not trained in white rock and requested training in this.  It was his understanding that the issue with the poor work previously had been dealt with.  He said it was his understanding that Mr Ginnity had received information from outside contractors, and they got his job when his employment was terminated.  The complainant said he did not raise a bullying and harassment complaint.  In response to questions regarding mitigation the complainant submitted that he looked for work in May, June and July and applied to around 30 places and is currently working.

I note a request for an amendment to the name of the respondent without objection and have, therefore, amended the name and for completeness I note that parties are not prejudiced by same.

Preliminary Issue #1:

The respondent submits that the complainant does not have one-year continuous service and therefore the Adjudicator does not have jurisdiction to hear the complainant.  The complainant submits there were delays and breaches in procedure, including that Revenue was not informed until June 2022 of the termination of the complainant’s employment and that the HR termination form was also not completed until after the 12 months and that the complainant’s appeal of his dismissal was communicated on 7/6/22 after 12 months service.   The respondent submits that Revenue and HR forms do not impact on a date of dismissal and that the dismissal date remains 29/4/23 regardless of any appeal.

Section 2(1)(a) of the Act provides as follows:

2 (1) Except in so far as any provision of this Act otherwise provides this Act shall not apply in relation to any of the following persons:

(a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him,

The Act is very clear that to enjoy the protection of the Act, a complainant must meet the service requirement set out unless a provision of that Act exempts him from that requirement.  The Tribunal has also held that a year beginning on, say, October 10, ends on October 9 of the following year and has rejected the argument which proposes that a year ends on the anniversary of the first day: see, for example, Pinkerton v Radio Tara UD 212/1997; Ennis-Gleeson v Standard Laundry Ltd UD 783/1998 and Downey v Utah Medical Products Ltd UD 864/1998.  I note that the complainant’s complaint form details that his employment ended 29/4/22.  I note that there were delays in advising Revenue of the termination as well as the necessary HR forms and that the decision regarding the appeal of the dismissal was communicated on 7th June 2022, however, but I do not find that they impact on the date of dismissal which from the complainant’s evidence he knew to be 29th April 2022. 

Having heard all the submissions and evidence, I find that the complainant, having less than 12 months service at the date of termination of his employment, lacks the locus standi to pursue the complaint and I determine that I do not have jurisdiction to adjudicate on his complaint of unfair dismissal.

Having heard all the submissions and evidence, I find that the complainant, having less than 12 months service at the date of termination of his employment, lacks the locus standi to pursue the complaint and I determine that I do not have jurisdiction to adjudicate on his complaint of unfair dismissal.

Unfair dismissal, less than one year’s service, probation