Complainant

Respondent

Parties

Olive Bree

Jama Homecare Services Limited

Representatives

Self-Represented

Self-Represented

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00051057-001

08/06/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00051057-004

08/06/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00051057-005

08/06/2022

The Complainant commenced employment with the Respondent on 11th May 2021. The Complainant worked an average of 18 hours per week and received an average weekly payment of €250.00. The Complainant’s employment was terminated by the Respondent on 6th January 2022.

On 8th June 2022, the Complainant referred the present complaints to the Commission. Herein, she alleged that the Respondent had failed to pay fuel expenses, had failed to pay her statutory minimum notice and that she had been unfairly dismissed. By subsequent submission, the Complainant alleged that her dismissal arose as a consequence of her issuing a protected disclosure. In denying these allegations, the Respondent submitted that the Complainant was dismissed following an extension to her probationary period. In this regard, the relevant witnesses for the Respondent submitted that they were unaware of any alleged protected disclosure when making this decision.

A hearing in relation to this matter was convened for, and finalised on, 27th February 2023. Both parties issued submissions in advance of the hearing and expanded upon the same in the course of the hearing. The Complainant gave evidence in support of her own complaint, while the Respondent called a Nurse Manager and a Director to give evidence in defense. All evidence was given under oath or affirmation and was subject to cross examination by the opposing side.

A preliminary issue as to jurisdiction in relation to the Payment of Wages complaint was raised by the Adjudicator. This matter will be considered following a summary of the relevant factual matrix. 

The Complainant commenced her employment with the Respondent on 11th May 2021. At all times she was engaged as a care assistant. At the commencement of her employment, the Complainant was informed that her permanent appointment would be subject to the successful completion of a probationary period. The Complainant believed that she was performing well, however on 5th November 2021 she was informed that her probationary period was to be extended by a further three months. While the Complainant was disappointed by this development, she endeavoured to work with the Respondent to address the issues raised and secure her permanent appointment.

In December 2022, an issue arose regarding the Complainant’s Christmas roster. In this regard, the Complainant had previously stated that she was unable to work on Christmas eve, however when she examined the roster she had been appointed a shift on this date. When the Complainant queried the same, she was informed that the nature of the service is such that person will be given shifts all year round. In this regard, the Complainant spoke with the Respondent’s payroll administrator. During this conversation, the Complainant stated that she believed that persons that raised issues regarding rosters tended not to be provided with shifts. By response, the payroll administrator stated that, to her knowledge, this was not the case and the she would endeavour to bring her concerns to management.

On 6th January 2022, the day of the Complainant’s return from her Christmas break, she was summoned to be meeting in the Respondent’s offices. During this meeting, the Complainant was informed that her employment was to be terminated. During this meeting the grounds of the same were said to be, providing care in a private capacity to the patients of the Respondent, an allegation that the Complainant did not spend the entirety of her allocated time with a patient and an allegation of inappropriate behaviour whilst wearing the Respondent’s uniform. The Complainant attempted to contest each of these allegations in turn, however the Respondent appeared uninterested in her defence to the same. Regarding the final allegation, the Respondent stated that this originated from an anonymous tip. This particularly aggrieved the Complainant as she maintained a strong suspicion as to who might have made such a false allegation. Despite the Complainant’s protestations, she was informed that her dismissed was to be effective immediately.

By submission the Complainant stated that she believed that she was dismissed as a consequence of her raising issue regarding her shifts in December 2022. She stated that the allegations raised by the Respondent were not properly investigated and that she did not have an opportunity to defend herself in respect of the same.

The Complainant further submitted that she was entitled to a week’s pay in lieu of notice, payment for a public holiday and a contractual pandemic recognition payment.

By response, the Respondent denies each of the allegation raised by the Complainant.

The Complainant’s employment was initially subject to a six-month probationary period. During the initial portion of the Complainant’s employment, the Respondent had concerns regarding her conduct and performance. In particular, they were concerned that the Complainant was providing private care service to the Respondent’s patients. On foot of the same, the Respondent elected to extend the Complainant’s probation for a further three months.

On 28th December 2021, the Respondent received an voicemail from an anonymous person making an allegation of inappropriate conduct on the part of the Complainant. In addition to the foregoing, the Respondent became aware that the Complainant continued to provide care on a private basis to the Respondent’s patients. Finally, the Respondent received a complaint to the effect that the Complainant failed to spend the entirety of her assigned time with a patient.

As a consequence of the same, the Respondent determined that the Complainant did not pass her probationary period. In this regard, the Complainant was called to a meeting on 6th January and informed of the allegations the Respondent had received. The Complainant was given an opportunity to present her version of events. Notwithstanding the same, the Respondent determined that the dismissal of the Complainant stood and that her employment was terminated on that date.

In evidence, the Nurse Manager stated that the operative reason for the Complainant’s dismissal was the issue addressed during the meeting of 6th January. She stated that prior to the same, much of the subject matter of the hearing had previously been raised with the Complainant and resulted in the initial extension of her probation. While she accepted that the Complainant had raised an issue regarding working on Christmas Eve, the nature of the Respondent’s business is that such matters are commonplace. She submitted that she was unaware of the Complainant making any form of complaint in relation to the same to the payroll administrator. In this regard, the stated that the issue surrounding the Christmas shift, be they protected disclosures or otherwise, were not in contemplation when the Respondent elected to dismiss the Complainant.

In evidence the Director of the Respondent stated that he was the person that made the decision to dismiss the Complainant. He stated that his rationale for doing so was set out in the meeting of 6th January 2022. He stated that he was unaware of, or had forgotten about, any issues regarding the Complainant’s Christmas eve shift. He stated that no grievance or complaint of any description was brought to his attention at this time.

CA-00051057-005 – Complaint under the Unfair Dismissals Acts

In the present case, the Complainant has submitted that her dismissal arose as a consequence of her raising issue regarding working on the afternoon of Christmas Eve. She has submitted that the complaint issued in respect of the same constituted a protected disclosure and that her dismissal arose as a direct consequence of the same. In denying this allegation, the Respondent submitted that the Complainant’s termination occurred as a direct result of her failure to pass an extended probation, and that the matters raised by the Complainant were irrelevant to the same.

In this regard, Section 6(2) of the Unfair Dismissals Acts provides that,

“…the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following;

(BA) the employee having made a protected disclosure”

In this regard, the Complainant must demonstrate that her complaint constitutes a protected disclosure within the meaning of the Protected Disclosures Act 2014, that this protected disclosure was communicated in accordance with the relevant legislative provision and that this disclosure resulted “wholly or mainly” in her dismissal.

The position of the Respondent is the rationale for the Complainant’s dismissal was certain conduct related issues that arose during her probationary period. In the case of John Clarke v CGI Food Services Limited and CGI Holding Limited [2021] 32 E.L.R.25 Humphrey’s J. held as follows,

“Decision- makers have to look beyond the mere face value of either side’s arguments in a dismissal dispute given the ease in which a position can be contrived and manipulated Royal mail Group Ltd v Jhuti [2019] UKSC 55 considered.”

Humphreys J. went on to state that,

 “…the evidence here establishes substantial grounds for contending that the performance issues were an attempt, as put in the submission by the employee “to dress up the dismissal as a performance- related dismissal” As put by Lord Wilson in Royal Mail Group Ltd v Jhuti [2019] UKSC 55 at para.60,

“If a person in the hierarchy of responsibility above the employee……determines that, for reason A (here the making of a protected disclosure), the employee should be dismissed but that reason A should be hidden behind an invented reason B which the decision-maker adopts (here inadequate performance), it is the Court’s duty to penetrate through the invention rather than to allow it also to infect its own determination”

In this regard, numerous procedural issues arise in respect of the dismissal of the Complainant. While the Complainant was ostensibly dismissed as a result of her failure to successfully complete her probationary period, this failure arose as a consequence of alleged misconduct on her part. It is apparent that the Respondent made no material efforts to engage with the Complainant or properly investigate these allegations. Rather, it appears that the Respondent received an allegation that the Complainant had misconducted herself and elected to dismiss her in the absence of any formal procedure and without the benefit of an internal appeal. While the Respondent’s position is that they are entitled to take such a course of action during an employee’s probationary period, this failure to prove the actual basis of the dismissal will significantly hamper their efforts to demonstrate that the dismissal was not based wholly or mainly on any other factor.

Notwithstanding the same, evidence of a deficient procedure does not automatically defeat the Respondent’s defence. In this regard, they Respondent has submitted that the rationale for the Complainant’s dismissal had been communicated to her prior to her alleged protected disclosure. They further submitted that they were unaware of the substance and form of the disclosure, be it protected or not, when deciding to dismiss the Complainant.

Regarding the first point, I note that on 5th November 2021, the Complainant’s probationary period was extended for a period of three months. The correspondence in relation to the same states that this is on the basis of certain conduct issues, including providing care to clients of the Respondent on a private basis. While it should be noted that these allegations were not properly investigated or proven, it is clear that at least some of the rationale for the dismissal of the Complainant was in contemplation prior to the alleged protected disclosure.

In relation to the second point, it is accepted that the Complainant spoke with management regarding her assigned hours for Christmas eve in the week preceding the same. Following the same, the Complainant spoke with an employee in the payroll department alleging that any person that raises issue with the Respondent has their hours reduced in punishment. She submits that this statement constituted a protected disclosure for the purposes of the 2014 Act. Thereafter, the payroll administrator sent an email to the nurse manager stating that the Complainant was “upset” regarding the issue of the Christmas roster. No further information was provided regarding the interaction and the evidence of the Nurse Manager was that no additional information was received in relation to the same.

Having regard to the foregoing, it is evident that the alleged protected disclosure was not communicated to the person that made the decision to dismiss the Complainant. In such circumstances, this issue could not have been a material factor in the decision to dismiss the Complainant. In such circumstances I find that the dismissal of the Complainant was not wholly or mainly influenced by the alleged protected disclosure and, consequently, the complaint is not well-founded.  

CA-00051057-004 – Complaint under the Minimum Notice and Terms of Employment Act

Regarding this particular complaint, the Complainant has alleged that she did not receive her statutory notice, equating to one week’s pay. By response, the Respondent submitted that as the Complainant was dismissed on the grounds of misconduct she was not entitled to the same.

Section 8 of the Minimum Notice and Terms of Employment Act, 1973, provides that,

“Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.”

Having regard to the foregoing, it is apparent that the Complainant was dismissed on the grounds of the failure to pass a probationary period as opposed to any finding of misconduct on her part. While allegation of misconduct were raised in relation to the same, these were not demonstrated by any form of internal procedure.

Having regard to the foregoing, I find that the complaint is well-founded and that the Complainant is entitled to statutory notice of one week, or the equivalent of €250.

CA-00051057-001 – Complaint under the Payment of Wages Act

The Complainant has alleged that she is entitled to payment of one public holiday and fuel expenses.

Regarding the first point, Section 1 of the Act provides that the following do not constitute “wages”,

“…any payment in respect of expenses incurred by the employee in carrying out his employment”

As fuel expenses fall under this definition, I find that the same do not constitute wages for the purposes of the present Act in such circumstances I find that this portion of the complaint is not well-founded.

In addition to the foregoing, the Complainant alleged that she did not receive payment for the public holiday falling on January 3rd 2022. While the Complainant did not work on this date, she submitted that by operation of the Organisation of Working Time Act she was entitled to a day’s payment. Having reviewed the relevant records in this regard, it is evident that the Complainant did not receive such payment. Having regard to the same, I find that this portion of the complaint is well-founded.

The Complainant further alleged that she was due €600 as part of the Pandemic Recognition Payment. At the hearing the Respondent stated that this had been paid to the Complainant.

CA-00051057-005 – Complaint under the Unfair Dismissals Acts

I find that the Complainant was not unfairly dismissed.

CA-00051057-004 – Complaint under the Minimum Notice and Terms of Employment Act

I find that the complaint is well founded. Having regard to the totality of evidence provided, I award the Complainant the sum of €250 in compensation.

CA-00051057-001 – Complaint under the Payment of Wages Act

I find that the complaint is well-founded in respect of the non-payment of a public holiday. Having regard to the foregoing, I award the Complainant the sum of €70 in compensation.

Regarding the pandemic recognition payment, the Respondent is to pay the Complainant the sum of €600, if this had not been previously received.

Protected Disclosure, Probation, Communication