ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00036637
Parties:
| Complainant | Respondent |
Parties | Deirdre Egan | Swancrest Ltd |
Representatives | Kenny Sullivan Solicitors | Management Support Services (Ireland) Ltd |
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-00047810-001 | 21/12/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00047810-002 | 21/12/2021 |
Dates of Adjudication Hearing: 23/11/2022 and 29/02/2023
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
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 complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.
I heard a considerable amount of evidence during the hearing days and was provided with substantial submissions. The parties were very capably represented on both sides and the witnesses were all courteous to me and the process.
The parties gave evidence on oath/affirmation, and I allowed the right to test the oral evidence presented by cross examination.
Much of this evidence was in conflict between the parties. I have taken time to review all the evidence both written and oral. I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected or found superfluous to the main findings. I have adopted the direction provided in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 at p.113 where O'Flaherty J. in the Supreme Court noted that minute analysis or reasons are not required to be given by administrative tribunals.
Background:
The Complainant commenced working for the Respondent 17 August 2020 as a medical secretary. Her employment ended on the 23 July 2021. She worked 3 x 9-hour days = 27 hours per week. She was paid €405 gross per week. |
Summary of Complainant’s Case:
CA-00047810-001 The Complainant's case is that her employment was terminated without notice. She had satisfactorily completed a six-month probationary period some 5.5 months earlier. Despite same, suddenly and without any explanation, warning, notice or reason she was dismissed. She gave evidence that she had worked over 20 years as a medical secretary and since the termination of their employment had found other work in the same field. She worked on reception for three days a week and a different member of staff worked the two days that she was off. She disagreed that there were complaints against her, and her evidence was that she thought she was doing a good job. She explained that the work was stressful, but that she was dealing with the pressures of work in a professional manner. In her own direct evidence, she said she didn't recall being asked to stay back after work for a meeting with the Respondent owner, however she did recall that he might have said "we must talk". She disputed the facts set out in the written complaints made against her. She further disputed that there would have been grounds to complain about her as regards her tone of voice and she was very clear that as a medical secretary she would never have given out patient test results. She gave evidence as to the regular scheduling of medical card patients appointments after 6 PM or on Saturdays, in breach of the guidelines on the payment arrangements for such claims. She also explained how all patients were asked to sign claim forms called STC forms and in cases where the STC forms we have signed, there were given to the pharmacy next door for the patients to sign. She said she was uncomfortable working with the Respondent owner especially regarding use of the STC forms and was intimidated by him. She said that she had been directed to sign patient's names on the forms up to 10 times. This was the wrongdoing that she alleged was taking place. Under cross examination she agreed that she had not read the memorandum from the HSE on Practice Management Directions as to the use of the STC and hadn’t made a complaint to the HSE as to the use of the forms by the Respondent. Her case was that immediately prior to her dismissal, she was presented with a contract of employment to sign. Her co-worker had already received the contract and had signed it. During the working day, the Respondent owner asked her had she signed the employment contract. Her reply to him was that she did not have the chance to read it and that she was not happy with the procedures in place regarding the STC forms. The Complainant said that he dismissed her concerns and went on lunch. Later that evening she was working until 6:30 PM. The Respondent owner asked her to close the office early and that he would have "a word with her at reception". He had never asked her to do this before. At that meeting, he told her that he was not happy with her (work), and that day was to be her "last day". He said he would give her holiday pay and notice pay. The Complainant submitted that this was penalisation and was prohibited conduct under the Protected Disclosures Act 2014. CA-00047810-002 The Complainant did not receive a statement in writing of her terms of employment. |
Summary of Respondent’s Case:
CA-00047810-001 The Respondent disputed that the Complainant had made a protected disclosure. Its case was the claim for same was made to circumvent section 2(1)(a) of the Unfair Dismissals Act as the Complainant had less than 12 months service. It submitted that since she began in employment, it had received numerous verbal and 3 written complaints regarding her attitude and unprofessionalism. She was verbally warned regarding her performance. The Complainant had made it well known to her colleagues that she was unhappy in the workplace and had been actively seeking new employment. The Respondent delayed the termination of the Complainant’s employment on the basis that she was looking for new employment. It had made to attempts to meet with her to discuss the ongoing issues and terminate her employment. Its case was that no conversation whatsoever had taken place on the issue of the STC forms that the Complainant was relying as a protected disclosure. The Complainant never approached the Respondent to draw attention to serious concerns regarding irregularities. It submitted that no such conversation ever happened. The owner of the Respondent gave evidence. He said that he had made the decision on 11 May 2021 to end the Complainant's employment but that it took until 23 July 2021 to arrange the meeting with her. The May date related to a serious complaint that was made against the Complainant regarding lack of confidentiality and decorum by a patient of the practice. A verbal complaint was made by the patient in May 2021 which was followed up in June 2021 with a written complaint. I was provided with a copy of this written complaint together with a separate written complaint (different patient) of the 1 July 2021 and a further complaint from a different patient of the 14 July 2021. He also said that on notifying the Complainant that her employment had ended she said "you can't do this. You will see the consequences". A member of staff of the Respondent gave evidence. She said she was aware from April 2021 of the confrontations between the Complainant and the Respondent owner. Both parties had spoken to her about it. The witness who initially volunteered in the surgery on a part-time basis, witnessed one incident involving the Complainant and a patient. Her evidence was that she was aware that the Respondent owner was not happy with the performance of the Complainant. She was aware that the Complainant was interviewing for other roles and that she would leave when she wanted to. She confirmed that the Respondent owner had spoken to her about trying to meet with the Complainant regarding her performance. The Respondent owner explained that it was a very busy practice and that he was very busy and had been trying to have an opportunity to sit down with the Complainant. However, the opportunity didn't arrive as the Complainant left the workplace before 5 PM. He disputed that the Complainant made any reference regarding The STC forms or his use thereof. CA-00047810-002 The Respondent accepted that they Complainant was not provided with her written terms of employment. |
Findings and Conclusions:
CA-00047810-001 The Protected Disclosures Act 2014 introduced state protection for workers who make protected disclosures in accordance with the Act. The purpose of the Act is to empower workers to speak up about wrongdoings (as defined in Section 5 (3) of the Act) without fear of reprisals from their employer or a third party. The Unfair Dismissal Act 1977 does not generally apply to employees who have less than one years' continuous service with the employer who dismissed her: see s. 2(1)(a) of the 1977 Act (as amended). There is, however, an exception where an employee who does not have this continuous service is dismissed by reason of a protected disclosure: see s. 6(2D) of the 1977 Act (as inserted by s.11(1)(c) of the 2014 Act). To succeed, a Complainant must demonstrate (a) that she made a protected disclosure (Section 5 Protected Disclosure Act 2014) (b) that she suffered a detriment (in this case dismissal) and a causal link between (a) and (b). In this case, there is no acceptance that a protected disclosure was made. The Supreme Court in Baranya v Rosderra Irish Meats Ltd [2021] IESC 77. (Hogan J.) made it clear that the words uttered (or written) must first be established as a sufficiently clear finding of facts. Hogan J. endorsed Kilraine v London Borough of Wandsworth in the Court of Appeal of England & Wales [2018] EWCA Civ 1436. He explained that this requires “sufficient factual content and specificity for this purpose, even if it does merely by necessary implication”. The Complainant's case is that she made the disclosure verbally to the Respondent owner on the date of the termination of her employment. The Respondents case is that no such disclosure was made. Presented with the evidence that is very much in dispute, I am required to make a finding of fact on the matter. Having considered all the evidence presented to me both verbally and in writing, I prefer the evidence of the Respondent. The evidence of the Complainant's co-worker, the written complaint letters/emails, and the fact that the Complainant disputed that there were grounds for complaints against her at all, influenced my decision in preferring the Respondents evidence. While there was an absence of fair procedures leading up to the dismissal of the Complainant, on the balance of probabilities, I do not accept that she made a protected disclosure to the Respondent as she alleged or at all. On that basis she does not have the protection of the Unfair Dismissals Act as she does not have the requisite 12-month service to bring a complaint of unfair dismissal. CA-00047810-002 It was accepted by the Respondent that the Complainant had not been provided with written terms of her employment. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
CA-00047810-001 This complaint is not well founded. CA-00047810-002 This complaint is well founded and I award the Complainant four weeks salary as compensation for breach of her entitlements. This amounts to €1,620. |
Dated: 7th March 2023
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Key Words:
Protected disclosure. Has there been a disclosure? |