Worker

Employer

Anonymised Parties

A Health Care Assistant

A Clinic

Representatives

TevlinClarke HR Consulting

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act 1969

CA-00053116

05/10/2022

The Worker was employed by the Employer as a health care assistant from 9 August 2022 to 20 September 2022. 

The Worker referred a dispute under the Industrial Relations Act 1969 concerning an unfair dismissal to the Workplace Relations Commission on 5 October 2022.

The Worker’s employment with the Employer was pursuant to an employment permit. 

The agreed employment contract was not honoured and there was no alternative contract entered into by the parties. 

Wages were paid in an ad hoc manner and no payslips were provided.  A deduction from the Worker’s weekly salary was agreed for the Worker’s accommodation but appropriate accommodation was not provided.

The Worker was told not to attend work on 13 September 2022; no explanation was provided.  On 20 September 2022, the Worker received a letter of termination from the Employer.

The Worker commenced employment with the Employer on 9 August 2022 with the necessary work permit and immigration visa.  The Worker’s employment was subject to a six-month probationary period.  There were performance issues and issues that undermined the contractual relationship.  Trust between the parties became strained.  The Employer was clear that the relationship had broken down irretrievably and it had no choice but to terminate the employment contract.

The Employer facilitated the Worker on a student placement from her university in 2021.  At the Worker’s request, the Employer agreed to an extension of the placement for a number of months.  The Employer provided the Worker with accommodation without charge during the placement.  The placement finished in May 2022 as the Worker had to return home to apply for a work visa.  The Worker was treated well by the Employer. 

The Employer acted reasonably at all material times.

The Employer’s representative advised at the hearing that it was not pursuing a preliminary issue concerning my jurisdiction to investigate the dispute, which was raised in a written submission prior to the hearing.

I am satisfied that I have jurisdiction to investigate and make a recommendation to the parties on the dispute referred to me under section 13 of the Industrial Relations Act 1969.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

The Worker did a training placement in 2021/22 at the Employer’s clinic.  The within dispute concerns a subsequent period when the Worker was employed by the Employer in August 2022 and the termination of that employment relationship by the Employer on 20 September 2022.   

A general employment permit, granted in accordance with section 8 of the Employment Permits Act 2006, as amended, issued to the Worker in June 2022.  The employment permit was in respect of employment as a health care assistant with the Employer and was valid from 20 June 2022 to 19 June 2023.  The Worker also required a visa from the Irish Naturalisation and Immigration Service; this issued in August 2022, prior to the Worker commencing employment with the Employer on 9 August 2022. 

The Employer emailed the Worker on 20 September 2022, attaching a letter of termination. 

There were two termination letters before me at the hearing, one dated 12 September 2022 and one dated 20 September 2022.  The Employer’s email of 20 September 2022 referred to “a termination and rescission of the original contract of services for the reasons outlined in the attached document”, which corresponds with the subject matter of the letter dated 12 September 2022.  The Employer submitted that he made enquiries of the relevant regulatory body regarding registration requirements for the Worker around 12 September 2022 and was made aware by his insurers of a potential insurance issue.  The Worker was told not to attend work on 13 September 2022.  The letter dated 20 September 2022 refers to a notice of termination of a short-term contract for services in respect of the period 9 August 2022 to 8 September 2022.  On balance, I conclude that it was the termination letter dated 12 September 2022 that issued to the Worker under cover of the Employer’s email of 20 September 2022. 

The letter dated 12 September 2022 purported to give formal notice of termination and rescission of the employment contract agreed and signed on 8 February 2022 for specified reasons, including the contract not having commenced on 1 March 2021, the Worker not having obtained an immigration work permit on that date, a major economic downturn due to the energy crisis since April 2022 and insurance issues related to the Worker not being registered with the professional regulatory body, which it stated was in fundamental breach of an original contract of 1 November 2021. 

In its written submissions before the Workplace Relations Commission, the Employer’s position was that it terminated the Worker’s employment with notice for serious misconduct and insurance issues related to the Worker’s registration with a regulatory professional body.  It submitted that the Worker’s employment in August/September 2022 was fraught with difficulties, namely poor professional performance, misconduct, failure to adhere to appropriate Covid-19 protective measures and failure to comply with the registration process of the profession’s regulatory body.  It also outlined a data protection breach.   The Employer felt there was no point in continuing the employment relationship and was satisfied the Worker would not meet the necessary performance required to pass probation. 

I was provided with the employment contract dated 8 February 2022, which was signed by both the Worker and the Employer.  The termination letter dated 12 September 2022 refers to this contract and outlines on the one hand that it is void ab initio, terminated and rescinded from 2 March 2021, which appears from reading the employment contract to be a typographical error, and should state  2 March 2022; and on the other, that due to an insurance/regulatory issue it is not possible for the Worker to work with the Employer with immediate effect from 12 September 2022. 

I am satisfied that the February 2022 employment contract did not apply to, or govern, the Worker’s employment with the Employer in August and September 2022. 

The Worker needed a visa from the Irish Naturalisation & Immigration Service, and she left Ireland in May 2022 to apply for the visa from her home country.  The Worker also needed a general work permit.    The Worker travelled to Ireland on 7 August 2022 and commenced employment with the Employer on 9 August 2022, in possession of both a general work permit and visa. 

The Worker was not provided with a written statement of terms of employment in respect of her employment from 9 August 2022, notwithstanding the Employer indicating in an email of 17 August 2022 that a 1-year employment contract would be signed the following week.  There was also no clarity around what the payments to the Worker related to, her hours of work, or her duties in employment.  The Worker received one payslip which was dated 30 September 2022 and detailed gross basic pay of €1,732.50; the net amount of which was paid to the Worker in varying amounts on six apparently random dates from 3 September to 28 October 2022. 

The Worker emailed the Employer on 19 September 2022 outlining concerns about not having a proper contract of employment and receiving irregular payments without payslips.  The Worker copied the Workplace Relations Commission and Department of Enterprise, Trade & Employment on this email. The following day, the Employer informed the Worker of the termination of her employment.  I must conclude that the Worker’s assertion of her rights was a factor in the Employer’s decision to terminate her employment.  This is supported by the tone of messages between the Worker and the Employer on 20 September 2022, and an email from the Employer in October 2022.  It is further supported by the fact that the Employer did not follow any kind of procedure prior to terminating the Worker’s employment in relation to the matters relied upon by it to justify the termination. 

The Employer’s assertion that the Worker was on probation does not negate her entitlement to fair procedures in relation to disciplinary matters.  The Employer referred to conduct and performance issues on the part of the Worker as the reason for her dismissal.  The Labour Court has consistently held that an employer is not relieved of the obligation to act fairly during a probationary period.    Details of any allegations or complaints were not put to the Worker, she did not have an opportunity to respond fully to any such allegations or complaints and she was not given an opportunity to avail of the right to representation.  The Worker was not afforded fair procedures in accordance with the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000) in relation to any conduct or performance issues.

Having considered the positions of both parties, I must conclude that the procedures adopted in the termination of the Worker’s employment were seriously flawed and that her dismissal on 20 September 2022 was unfair.

Accordingly, I recommend the Employer pays the Worker compensation in the amount of €8,000 in full and final settlement of the dispute.

Industrial relation - Unfair dismissal – Less than 12 months’ service