ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00042997

Parties:

	Complainant	Respondent
Parties	Shauna O'Neill	Health Service Executive HSE Drogheda Services for Older People

Representatives

Self-Represented

Eamon Ross HSE

Complaint:

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-00053477-001	29/10/2022

Date of Adjudication Hearing: 19/05/2023

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

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.

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 normally be in Public, 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 present. The legal perils of committing Perjury were explained to all parties.

While there were no issues raised regarding confidentiality in the publication of the decision

Background:

The complaint concerns the alleged Constructive Unfair Dismissal of the Complainant by the HSE from the Elder Care Service.

The employment began, via an Agency, in 2016 and allegedly ended on the 16th August 2022.

The rate of pay was the HSE Grade 111 Clerical scale for a 35 Hour week.

1: Summary of Complainant’s Case:

The Complainant made a comprehensive Oral testimony supported by extensive copy documentation. A number of alleged difficulties arose in the Office regarding Social Media and interpersonal staff issues. The Complainant was called to a meeting on the 5th August 2022 with the Director of Nursing Mr McC. The Complainant was on her own without professional representation, although a Management Colleague, Mr McC, had been asked to attend as a support.

The meeting lasted some two hours and was described by the Complainant as being characterised by very aggressive behaviour, shouting, table banging etc by Mr McC. The Complainant was left in tears.

At the conclusion of the meeting she was directed by Mr McC to leave the office and have no further contact with any staff or patients there.

This was a complete case of Unfair Dismissal.

In a related case she immediately lodged a Formal Grievance under HSE Policies against Mr McC.

2: Summary of Respondent’s Case:

The Respondent was represented by Mr Ross of the HR Office. He made an oral testimony supported by a Written Submission.

Mr Ross pointed out that , in the Respondent view , no actual Dismissal had taken place. The Complainant was initially employed by an Agency (Marsh Mackey) and later transitioned to a HSE contract. There was no break in service such a to justify a Constructive Dismissal or other Unfair Dismissal claim.

Evidence to support this was submitted – Mr McC’s (Administrator) e mail of the 15th May 2023 being central to this.

3: Findings and Conclusions:

3:1 Legal Position

For an Unfair Dismissal case to proceed it is necessary for an Actual dismissal, an ending of the employment contract, to have taken place. Section 1 and 6 of the Unfair Dismissals Act,1977 refer.

There is no doubt that the meeting of the 5th August 2022 was difficult for all sides. However, from the minutes supplied and the Oral testimonies of the Parties I could not see where an actual termination of employment took place.

The Complainant began on the 17th August 2022, effectively early, in a Grave IV promotion post in Ardee. This was initially paid by the Agency-Marsh Mackey.

There appeared to have been some slight administrative confusion between Marsh Mackey, the Staff Agency and the HSE as to whose payroll she was now on and whether or not Annual leave was being reckoned /taken. None the less it appears that she was paid by the HSE from the 19th September onwards and Marsh Mackey to that date. The Complainant took for days sick leave from the 9th August before resuming on the 17th August 2022.

There was no obvious break in employment service albeit some confusion as to who was actually paying her salary.

Accordingly, as there was no ending of the Employment Contract a claim for unfair Dismissal cannot be proceeded with.

The Complaint has to be deemed unsustainable and to fail.

4: Decision:

CA: 00053477-001

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.

From a careful review of all the evidence presented it was clear that as the Employment Relationship between the parties remained in operation at all times No Unfair Dismissal took place.

The Complaint fails.

Dated: 1st November, 2023

Workplace Relations Commission Adjudication Officer: Michael McEntee

Key Words:

Unfair Dismissal, No break in employment.