Complainant

Respondent

Parties

Luke Francis  Woods

Health Service Executive Westmeath IDRS

Complainant

Respondent

Anonymised Parties

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Representatives

  Self

Mary Quinn HSE Midlands CHO

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-00053834-001

29/09/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

CA-00053834-004

29/09/2022

There are two complaints to be decided in this case. The first is a complaint of alleged unfair dismissal by Mr Woods(the Complainant) under the Unfair Dismissals Act 1977 as amended. Dismissal as a fact is disputed by the Respondent(HSE).

The second complaint is that the Complainant was treated less favourably compared to any direct employee of the Respondent. That complaint of discrimination relates to the manner in which  complaints made by the Complainant were treated by the Respondent. This complaint is considered under section 25 of the Protection of Employees (Temporary Agency Work) Act 2012. Discrimination or less favourable treatment is denied by the HSE.

Issues regarding the incorrect notification of the hearing to the HSE together with the inclusion of a dispute under the Industrial Relations Act to which the HSE had objected led to the first hearing date being adjourned. In adjourning the Complainant was asked to clarify the basis of his complaint of discrimination under the Agency Workers Act and the Respondent was given the opportunity to provide a submission for the reconvened hearing in relation to both complaints. At the conclusion of the first full day of presenting the evidence, the hearing was adjourned, asking the HSE to provide more detailed information by way of dates and hours worked which they claimed supported their contention that there was no dismissal and there was no significant reduction in hours or shifts for the Complainant following the events of April 2022. The HSE was also asked to provide further information regarding the meeting on the 13th of April 2022, the date submitted as the date of dismissal. The information requested was provided in advance of the resumed hearing on the 31st of January 2024. Further contractual information was requested of the HSE at the conclusion of the second day of hearing, together with the notes of the meeting of April 13th, 2022, the ‘dismissal’ meeting. The Complainant received the opportunity to comment on the documentation provided by the HSE-reply received 15 February 2024.

Sworn evidence was provided by all witnesses.

Complaint of Unfair Dismissal

As dismissal is denied by the Respondent the Complainant was the first to provide evidence. Previously he was an employee of the HSE for many years. In 2020 he was engaged by Nurse on Call to provide services to the HSE on placement. He worked in different locations by agreement with a named nurse manager, first in Millmount and later in  Rahugh. He was asked by the HSE manager to move to Rahugh to support the service there. That placement was made directly with the HSE and not Nurse on Call. At all times he was paid by Nurse on Call. The Complainant’s case is that on 13th April 2022 he was removed from the roster at Rahugh and was first informed of this by Nurse on Call in a telephone call while he was on his way to a meeting with HSE managers on that day. It had been the Complainant’s understanding that the meeting was to be in relation to a “NIMS” report which he had made, in March 2022. He was aware that the HCAs who he regarded as the subject of the complaint were called to a meeting at which they had union representation and where the issues in the complaint was discussed with them. The CNM2 in the location had approached the senior managers about meeting him about the same issue and was informed that they would “fit him in”. When he was informed at short notice that he was invited to a meeting at 12.30pm that day he had to make arrangements to be in attendance. When he attended the meeting, he found that it was not in relation to his complaint but his removal from the placement in Rahugh. He asked what had happened to his NIMS report and was told that it was on the file. He was questioned about performance issues. He could not understand why he was being questioned about those issues. The Complainant disputes the evidence of the HSE that he was informed at the meeting that he would be rostered elsewhere, that was not his understanding from the meeting. Subsequently he received a telephone call from a named CNM 11 who said she would be happy to have on shifts elsewhere- offering him work in another location. He accepted that offer but was later informed that the placement was blocked by the ADON Ms Burke because a staff member would not work with him. This had a serious adverse effect on his health and wellbeing, and he was out of work for some weeks afterwards. When he was well enough, he contacted the Allocations Office asking whether he was blocked from working in the area (Midlands Louth Meath CHO) and was told that he was not blocked and he was subsequently assigned to other work. As far as he is concerned, he was dismissed on the day of the meeting, and this was notified to Nurse on Call as well as him being told this at the meeting on the 13th of April. In terms of the work which he has obtained since April 2022, the initial complaint was that there was a loss of shifts and nightwork and his hours were significantly reduced. At Rahugh he was employed on a seven over fourteen roster with weekend working and premium pay for weekend working and nightwork. His claim was that he was refused work, and later when he was rostered again, there was a reduction in his hours and his premium payments.

Sometime later he contacted Ms Burke by email looking for answers to what had happened but there was no reply to that email. At the hearing he accepted that there was a reply in August 2022 inviting him to a meeting but he had decided at that stage to refer the matter to the WRC so he did not take up the offer of the meeting. Emails he sent to Nurse on Call regarding the events in Rahugh and later in the other location where an offer of work was withdrawn were provided.

Complaint under the Temporary Agency Work Act 2012

Asked to provide the basis for his complaint of discrimination under the legislation the Complainant referred to the procedures used in response to his official complaint. That complaint was not investigated. He also complained about the procedures leading to the meeting on 13th April 2022. The Complainant contended that, if a direct employee made a complaint, it would be investigated and the procedures around the meeting on 13th April 2022 would be applied differently to a direct employee compared to his experience. It is his case that he was discriminated against as an agency worker by being treated less favourably than a direct HSE employee would be treated in the same circumstances. In particular he drew attention to his understanding that the employee/s against whom he had complained were notified of their meeting and had union representation at the meeting. He understood that he was the only person removed from the roster in that location and was not aware of any other person who was removed after he made a complaint in March 2022.

Following the conclusion of all the evidence and consideration of the documentation provided, Mr Woods summarised his case as basically the same from the outset. There was no reason given to him as to why he was being removed from the roster having worked with IDRS in the CHO for two years. He was informed of his dismissal by Nurse on Call. He was not offered any employment elsewhere except by Ms Farrell who then informed him that she had to take him off the roster because a direct employee (HCA) did not want to work with him. He had not worked in that particular location previously except when he gave medication on some occasions, but he was told nothing of any problem with him. He totally believed Ms Farrell that she was told by the ADON Ms Bourke not to roster him in that location because of the objection of a staff member. He was dismissed without reason; he left on that day (13th April 2022) believing that he was dismissed; and his complaint had not been dealt with. There was more to his complaint than missing documentation as was suggested by the HSE at the hearing. He provided details of how documentation had disappeared and reappeared and which he had discussed with the CNM 2. His complaint to the HSE in March was concerned also with the way in which he had been treated and the impact of that treatment on him. A few weeks after his dismissal he did send an email seeking a meeting. His esteem and dignity were undermined. There was a reply sometime later -August 2022 - but he felt it was fruitless. He decided to seek justice and guidance elsewhere, through the WRC. To this day he still does not know why he was dismissed. He did make a complaint, and nothing was done about it. At the meeting on the 13th of April 2022, he was told to go and he was blatantly not offered any reason and it is his position that the HSE would not dream of doing that to a member of staff. He worked as a direct employee of the HSE for many years and he never heard of a complaints register for recording staff complaints-this in response to the HSE.

Summary of Respondent’s Case

The initial response of the HSE to the complaints and the dispute submitted by Luke Woods was to write to the WRC stating: “I wish to advise that Mr Luke Francis Woods is not an employee of the HSE. Mr Woods is an employee of Nurse on Call and continues to work as an agency employee in IDRS Midlands Area.” The HSE then forwarded the WRC documentation to Nurse on Call who wrote to Mr Woods on the 20th of December 2022 stating:

“Under the unfair dismissals legislation your employer is the person for whom you actually work rather than the agency. Compliance with health and safety requirements is also the responsibility of the person or organisation for whom you actually work and not the agency. Agency workers must have equal treatment with regular workers from the first day of work.”

The HSE did subsequently attend the hearings as the Respondent. The position of the HSE is that they have a service level agreement with Nurse on Call that covers terms and conditions for agency staff nurses while employed in HSE services.

Complaint of Unfair dismissal

Dismissal as a fact is denied. The Complainant was engaged as a staff nurse in IDRS CHO 8 from 24th August 2020 and continues to be employed in the area covered by the CHO. His first placement was in Millmount and on 20th August 2020 he was inducted by the CNM2 with an induction plan. There are eight elements to the induction plan signed by the Complainant. It is accepted that the Complainant completed a NIMS complaint regarding an incident on 13th March 2022 reported on 16th March 2022 and signed on 21st March 2022. The position of the HSE is that the subject of the complaints was missing documents which were subsequently found on 17th March 2022 in the clinic room. Mr Woods also completed a NIRF – 03 property form in relation to missing documents on 13th March 2022. The matter of the missing documentation was reported to the CNM2 on the 16th of March and was addressed immediately that day. Mr Woods was aware of the documents having been located on 18th March 2022. Both report forms related to the same incident, and it is evident from the content of these documents that the matter was handled promptly with a positive outcome. [This position regarding the handling of the complaints is relevant also to the complaint of alleged discrimination or less favourable treatment than a direct employee.]

Having reviewed the meeting of April 13th, 2022, further as requested on the first full hearing day, in their second submission to the hearing the HSE acknowledged that there were flaws in how that meeting of  was conducted. Mr Woods did not receive prior notice, the subject of the meeting or the opportunity to be represented. The HSE accept that this meeting was not conducted in line with HSE policies and procedures for which the HSE included an apology to Mr Woods.

The purpose of the meeting on 13th April 2022 was to explore and address issues that were coming to the attention of nursing administration in relation to team dynamics. Following the meeting on the 13th of April 2022 Mr Woods was moved by management from The Hollows/Rahugh which resulted in changes to his roster arrangements and his work location. He was offered alternative shifts as a staff nurse in community residences in the Longford/Westmeath area and continues to be employed in IDRS. The Complainant was not dismissed. The hours and shifts worked by Mr Woods in 2022 and provided to the hearing on the 31st of January indicate a gap between 13th and 29th April 2022 when Mr Woods was not working. A total of 16 days, and it is the understanding of management at the time that he was sick and unavailable for work.

Eva Hayes, Director of Nursing, gave evidence regarding the meeting on 13th April 2022. Management had been informed that there were issues going on in the house. The team was fractured. There was a discussion about that with other staff and all had the opportunity to come and meet with managers. One of the HCAs is also a union representative, and he was at the meeting in both capacities, i.e., an employee and the local union rep. There were service issues at the location-but none of these involved Mr Woods. It was her understanding that the CNM2 would have informed Mr Woods what the meeting at 12.30pm on the 13th of April was about in advance of the meeting. Two people were moved, Mr Woods and a member of staff. It was made very clear to Mr Woods at the meeting that he would be offered work elsewhere.

The HSE stated that there was no other complaint by Mr Woods regarding the workplace found in the register of complaints in the centre.

Evidence of Jean Bourke

Regarding the removal of Mr Woods from the roster in Rahugh, the witness accepted Mr Woods wrote to her. In August 2022 she sent an email in response  offering to meet with him to discuss the problems he raised which he did not take up.

Ms Burke accepted that, following his removal from the roster in Rahugh she had contacted the CNM2 Ms Farrell and highlighted to her that there was a member of staff who did not wish to work with Mr Woods in another part of the service and advised her to speak directly with that staff member. There was no instruction by her to the CNM 11 to take Mr Woods off the roster.

Mr Woods questioned why Ms Farrell with whom he had a very good relationship would tell him that she had been instructed to take him off the roster if that was not the case. Ms Burke replied that she did not know what was said to him, but that she had not given an instruction not to roster him in that other location.

Having considered all the evidence and submissions Ms Quinn summarised the HSE position as: Mr Woods was not dismissed; he continues to be an employee and was advised that he would continue to be rostered and offered alternative hours on 13th April 2022. The records provided to the hearing show no loss of shifts or no significant loss once the Complainant returned from sick leave following a three-week absence in April 2022.

Regarding the NIMS complaint, appropriate steps were taken, and the matter was closed. It is accepted that the meeting on the 13th of April was not handled correctly.

Regarding the complaint under the Agency Workers Act, it is the position of the HSE that, while the meeting of April 13th, 2022, was not handled very well,  there was no unfair treatment under that Act. The Complainant enjoyed the terms and conditions of a HSE employee including the same rosters and he was not treated less favourably in respect of those Ts and Cs. 

Extract Unfair Dismissals Act - Agency Workers

Where, whether before, on or after the commencement of this Act, an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the Employment Agency Act, 1971, and is acting in the course of  that business, to do or perform personally any work or service for a third person (whether or not the third person is  party to the contract and whether or not the third person pays the wages or salary of the individual in respect of the work or service), then, for the purposes of the Principal Act, as respects a dismissal occurring after such commencement-

(a)   The individual shall be deemed to be an employee employed by the third person under a contract of employment,

(b)   If the contract was made before such commencement, it shall be deemed to have been made upon such commencement, and

(c)    Any redress under the Principal Act for unfair dismissal of the individual under the contract shall awarded against the third person.

As can be seen from the forgoing relevant extract from the Unfair Dismissals Act, for the purposes of a complaint under the legislation, the Complainant in this case was an employee of the HSE as the third person having the requisite service under the Principal Act. The HSE is therefore the correct Respondent.

Given the facts of the case, as regards the treatment of the Complainant in relation to date of 13 April 2022,the Respondent has acknowledged during these proceedings, that the manner in which that meeting was convened fell short of their normal practice and procedures. From my assessment of the facts, the treatment of the Complainant was shabby and accorded him no rights at all, as though he had none, given he was an agency worker. This conclusion takes into account the fact that the Complainant learned about his fate from his employing agency even before he went to the meeting and without any prior opportunity to question or discuss the management concerns as they affected him in that place of work. It seems from the respective accounts of the meeting, that it was a difficult meeting for Mr Woods. There is nothing in the management record of the meeting that suggest that his complaints under NIMNS was addressed by management. At the hearing, Ms Hayes stated that there were no service complaints about Mr Woods, but neither is this recorded elsewhere including at the meeting on 13 April 2022,leaving Mr Woods to conclude that his reputation was damaged, especially when he was told a few weeks later that he could not take up a vacant position on a roster elsewhere in IDRS. It was only at the hearing of his complaints that he learned that a direct employee of the HSE was also moved from Rahugh. Until that point at least the Complainant had no explanation of any substance at all for his removal from his place of work for two years at that stage. From his own written and oral accounts, it is reasonable to conclude that there were, at the very least, relationship issues between Mr Woods and certain HSE employees at Rahugh. Indeed, the agency subsequently advised him that he was better off out of that ‘toxic’ environment.

Regarding the communications post the events of April 2022, I note that some of the emails querying what had occurred were sent to Nurse on Call. However, no record of their replies, if any, were provided to the hearing. It is a matter of record that Ms Bourke in a reply to Mr Woods  in August 2022,disagreed with his perspective that ‘ his reputation was in dispute’ noting he was ‘continuously working with IDRS’ and offering to meet with him. The reason for not meeting at that stage was put down to having decided to refer the matter to the WRC-which did not in fact occur until late September 2022. A discussion might have resolved some of Mr Woods concerns, something which is very difficult to achieve through the formal processes conducted under the terms of legislation.

The Decision which I am required to make, is not whether the Complainant was fairly treated, but whether he was unfairly dismissed. And to arrive at a conclusion on whether a dismissal was unfair or not, I am required in the first instance to find if there was a dismissal, amounting to a permanent termination of employment. And this fundamental issue is disputed and therefore remains to be decided in this case following the presentation of all documentation and evidence.

Having considered the matter very carefully, allowing that the Complainant was in some shock at what was happening to him on 13th April 2022, I am satisfied that what was occurring that day was his removal from the roster in that location. He was not dismissed by the HSE that day. This conclusion is consistent with the words which Mr Woods stated both in his written statement of case and his oral evidence were used by Nurse On Call when they rang him on the same day as the meeting-that he was being ‘removed from the roster’. The definition of a place of work under the Temporary Agency Work Act 2012 is that contained in the Health and Safety Act,2005: “place of work” includes any or any part of any, place(whether or not within or forming part of a building or structure) land or other location at, in, upon or near which, work is carried on whether occasionally or otherwise;”

While the contractual position of Mr Woods at different stages was and remains opaque to say the least, in the absence of any evidence to the contrary, the position of the HSE to the effect that the place of work was in IDRS CHO 8 and not one single location in that geographical area, means that it was possible to remove Mr Woods from one part of that area without that change in a specific location or a short break between contracts representing a dismissal by way of a permanent termination of employment. When the emails supplied by Mr Woods are examined in detail, Nurse On Call offered him work as early as 21 April 2022 in a named location in CHO 8, which Mr Woods declined for personal family reasons. He then said he was available for work the following week. Had NOC understood that Mr Woods was no longer to be supplied as a worker to the HSE in CHO8-they would not have offered or been in a position to offer work in that other location. Of greater significance is the offer of rostered hours by the CNM 2, Ms Farrell after 13 April, the date of ‘dismissal’. There are no precise dates for when this occurred. There is some conflict between emails sent by Mr Woods where he implies, he actually worked on the roster for two weeks(email of 27 May and 4 June refer) and which is also contained within his statement of complaint and his oral evidence which suggested that he was offered a place on a roster by Ms Farrell but before this could commence, she informed him that due to the objections of a direct employee he was not to be employed at that other location. The main significance of the offer by Ms Farrell, irrespective of the circumstances in which the offer was withdrawn, is that were Mr Woods no longer to be employed in IDRS after the meeting on 13 April, that offer could not have been made by Ms Farrell. And finally in terms of concluding that there was no termination of employment in the form of a dismissal on 13 April, there is the response of the allocations office when contacted by Mr Woods once his health had recovered when he was told there was no instruction not to allocate him hours and he was subsequently offered work across the IDRS in CHO 8, which appears to have commenced as early as late April-although again details are a bit sketchy regarding the exact locations.

One final issue which I examined in arriving at a finding regarding the claim of a dismissal, was the record of the hours offered to Mr Woods once he returned to work in April/ May 2022. Part of the complaint was the sporadic nature of shift offered after May 2022 including the complete absence of premium hours for which unsocial hours premia are paid by the HSE. Accepting that whereas when reporting to Ms Farrell as CNM 11 and particularly in Rahugh, Mr Woods had stable rosters with guaranteed income, the material provided by the HSE for the hearing in January shows a quantity of hours and premia earnings at or around the same level as those worked by  earned by Mr Woods prior to 13 April 2022 and for the two years previously. If those figures were inaccurate or did not reflect the real situation, Mr Woods did not provide any evidence which could lead to a conclusion that his hours of work and his access to rostered hours were reduced post April 2022 to the extent that would constitute an effective permanent termination of employment or dismissal. In arriving at this particular conclusion, account is taken of a fact of agency working life which is that, by its very nature, it is temporary and hours, locations and access to premia earnings will all vary from time to time.  

The foregoing conclusions support a finding that, while there was no semblance of care for his wellbeing or his reputation displayed at or immediately after that meeting, the HSE contention that the Complainant was not dismissed on 13 April 2022 and remains an employee of IDRS in CHO (for the purposes of the relevant legislation). The complaint of unfair dismissal is not well founded.

Temporary Agency Work Act,2012

The following are extracts from the legislation under which the complaint of less favourable treatment was brought by Mr Woods.

[2. Interpretation]

(1)

““basic working and employment conditions” means terms and conditions of employment required to be included in a contract of employment by virtue of any enactment or collective agreement, or any arrangement that applies generally in respect of employees, or any class of employees, of a hirer, and that relate to—

(a) pay,

(b) working time,

(c) rest periods,

(d) rest breaks during the working day,

(e) night work,

(f) overtime,

(g) annual leave, or

(h) public holidays;”.

““Directive” means Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work, the text of which is set out in Schedule 1;”.

““place of work” has the same meaning as it has in the Safety, Health and Welfare at Work Act 2005;”.

“(4) For the purposes of this Act, a person who, under a contract of employment referred to in paragraph (b) of the definition of “contract of employment”, is liable to pay the wages of an individual in respect of work done by that individual shall be deemed to be the individual’s employer.”

The complaint that his communications in March 2022 and the submission of a completed NIMNS from, Mr Woods was treated differently and less favourably than a direct HSE employee are perfectly understandable and it is hoped are actually valid complaints in themselves. NIMNS is a statutory form for all levels of government and a NIRF form, which was also referenced, is a national incident report form. To dismiss such reports without any feedback to the person who submitted such documents and to ignore that aspect of the forms where reference is made by an employee to their personal health and wellbeing borders on negligence. A direct employee could expect at the very least to be directed to the relevant employee relations policies where they had interpersonal complaints. As I have not found the HSE or its predecessor employers to be negligent as matter of course in these matters when dealing with direct employees it is not unreasonable of Mr Woods to conclude that his status as an agency worker affected the way in which some in  nurse management responded or failed to respond to his documented complaints-even if it was only to confirm that the official issues raised were resolved-as claimed at the WRC hearing.  

The forgoing observations are merited given the concerns raised by this case around the general lack of understanding of the obligations towards agency workers in matters which they regard as serious enough to be the subject of internal formal complaint/s mechanisms.

Nonetheless the terms of the Agency Worker Protective Legislation is very limited in scope. In the main, the legislation provided for ensuring that the basic terms of employment as listed applied at least equally to agency workers when compared to direct employees. Whereas the 2008 Directive makes reference to health in safety as a general principle, neither the Directive or the 2012 national legislation make provision for access to employment policies e.g. bullying procedures or grievance or disciplinary procedures for Agency Worker in any detail as matters of right to that class of worker. The service level agreement which I reviewed makes no specific reference to employment protection policies within the HSE and how they are to be applied to or accessed by agency workers.  Given they were described at the hearing as the largest provider of nurses under contract to the HSE, surely an area for Nurse On Call and the HSE to consider-rather than Nurse On Call simply telling the HSE of their responsibilities under ‘health and safety’ as they did in correspondence on 20 December 2022. In the meantime, however, the terms of the Act of 2012 do not provide for the substance of issues raised by Mr Woods to be decided by the WRC as they do not fall within the provisions of basic terms of employment as defined, which leads to the finding that the complaint is not well founded.

CA-00053834-001 Unfair Dismissals Act 1977 This complaint by Luke Woods against the HSE is not well founded.

CA-00053634-004 Temporary Agency Work Act,2012 This complaint by Luke Woods against the HSE is not well founded.

Agency worker-alleged unfair dismissal and alleged discrimination