Complainant

Respondent

Parties

Bernadette  Talty

Health Service Executive

Representatives

  Self Represented

 Comyn Kelleher Tobin Solicitors

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-00054840-001

02/02/2023

The Complainant was employed with an Agency during Covid supplying administrative services to the Respondent. The Complainant alleged she was unfairly dismissed and denied a permanent post by the Respondent.

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The Complainant felt she was automatically entitled to be appointed to a Grade 111 Clerical Officer post when it had become available and that when she did not get appointed to this role she was unfairly dismissed from her temporary role.

The Complainant was interviewed in January 2023 for a Grade IV as part of a HSE Internal Recruitment Campaign position for which she was successful and stated she was on an internal panel for appointment to a permanent full time role within the HSE.  The Complainant stated she worked very hard and was a very good employee with the HSE. The Complainant alleged she had heard that the statistics available show she was consistently the Number 1 performer in the country across the whole of the Public Sector not just the HSE. She stated this alone would mean there is something very wrong with an interview process that suggested she wasn't successful on interview and the Complainant felt therefore that there is a prejudice and bias against her among certain quarters in the HSE

The Complainant was never a direct employee of the Respondent.  The Complainant was an agency worker, employed or engaged by an employment agency called “FRS Recruitment”. The Complainant’s contract of employment was with FRS Recruitment.   The HSE does not have visibility on the contract terms of the Complainant’s employment with FRS or the duration thereof.

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The Complainant was placed on assignment as a Temporary Clerical Officer with the HSE from 15th February 2021 until 2nd February 2023. The Complainant was assigned to work in the Disability Services of the Respondent and in particular worked in the Aids & Appliances team, working from a number of locations during her assignment with the Respondent. It was anticipated at the outset that the tenure of the agency worker’s assignment would be circa 2-3 months.

While on assignment with the HSE, the Complainant was paid by FRS Recruitment. Agency templates were submitted to the HSE’s finance department by the Complainant’s line manager on a weekly basis confirming the hours she worked. Invoices were subsequently paid to FRS Recruitment in respect of same.

The Complainant worked on an agency basis as a Grade III Clerical Officer. She worked part-time for 24 hours per week on an agency basis, which on commencement would have equated to <0.65 whole time equivalent hours (full time was 37 hours).

The Complainant’s assignment ceased due to the fact that there was no ongoing requirement for her role in the Aids & Appliances team and the fact that the required cohort of staff for the department was sourced via open competitions as a result of which staff were directly employed by HSE.  There was therefore no further requirement for temporary agency staff. 

The Respondent brought to the attention of the Adjudicator that, under the heading ‘Complaint Specific Details or Statement’ in the WRC complaint form, the Complainant has provided names and work history (her interpretation thereof) in relation to 9 people other than herself. She refers to work locations and offers personal opinions that are unsubstantiated. The Respondent wished to place on record that it does not concur with the views the Complainant has expressed.  

The Respondent included in their submission a very detailed explanation the roles and responsibilities of each of the individuals named by the Complainant in her statement to the WRC. I do not consider it necessary to detail each situation here as it was both logical in explanation and was not challenged by the Complainant at the Hearing.

In summary,  some of the duties that the Complainant was assigned to work on have concluded – the introduction of the IT system has streamlined certain processes and manual data entry previously completed by the Complainant during her agency assignment is now no longer necessary.  Others are now being undertaken by other Clerical Officers on the team as part of their roles, as was the case during the Complainants tenure. All substantive posts within this department have been filled from HSE panels.  There is now a full complement of directly hired HSE staff in the Aids & Appliance team. Those who have joined recently have been sourced via competitive HSE recruitment campaigns. The Complainants position has not been backfilled in the department.  The evidence of the Respondent was that the Complainant was kept informed at all times by her Line Manager of the progress of the introduction of the IT system and it was clear at all times that both this factor and the filling of various posts by direct HSE employees would mean there would, at some point, be no further requirement for agency staff.

In the section of the WRC complaint form asking ‘What was the reason given for your dismissal?’, the Complainant’s response is ‘Unwillingness to employ me on a permanent full time basis and employ someone else instead.’  The Respondent’s position was that the issue was not ‘unwillingness’ to employ the Complainant on a permanent basis. The decision to cease her assignment as agency worker was not personal to her at all.  Rather, it was related to the fact there was no longer a need for agency staff to carry out the duties The Complainant was doing, and in addition, the fact that her employment was not simply continued is due to a requirement to ensure that the HSE is compliant with the correct policies and procedures relating to recruitment.

The Complainant’s assignment ceased due to the fact there was no longer a need for someone to carry out the role she was doing and the fact that the required cohort of staff for the Aids & Appliances department was sourced via open competitions as a result of which staff were directly employed through open competitions by HSE.  There was no requirement for agency staff once the required cohort of staff were permanently appointed by HSE.

Permanent appointments to roles in the HSE are made as a result of open competitions. These enable the HSE to deliver on Principle 2 of the Commission for Public Service Appointments (CPSA) Code of Practice which stipulates that they must be ‘made on merit… through a transparent, competitive recruitment process.’   

The Complainant is seeking reinstatement to the role of Grade III Clerical Officer in which she worked on a c.0.65 whole time equivalent basis as an agency employee via FRS Recruitment. Unfortunately, all clerical/administrative staffing requirements in the Aids & Appliances area where the Complainant was temporarily assigned have now been filled by direct HSE employees appointed permanently in accordance with the CPSA through open, transparent recruitment campaigns. Additional agency resources are no longer being utilised. There are no further hiring needs within this team at present.

At all times during the Complainant’s assignment as an agency worker to HSE, she was kept informed of various recruitment campaigns (as per the obligations of HSE as hirer under the Protection of Employees (Temporary Agency Work) Act 2012 to notify an agency worker of any vacancy which arises so that the agency worker may apply for the position, if they wish.)

During the timeline of the Complainant’s part-time agency assignment, a number of vacancies within HSE directly became available. The Complainant was aware of and participated in these competitions.

The Complainant interviewed for a Grade III Clerical Officer role in the HSE with Mid-West Community Healthcare on 24th June 2022 via an open and transparent recruitment competition that the Complainant applied for (campaign reference MWCH 22.085). At that time, she had gained over 16 months’ part-time agency experience within the organisation. However, she was not successful. The interview board commented on her feedback sheet as follows: “Applicant failed to display sufficient knowledge of the competencies. Would benefit with having a better understanding of the position applied for.” She was not placed on the panel.

Employment on a permanent full time basis within the HSE generally results from placement on a HSE panel through an open, transparent recruitment campaign conducted in line with the Commission for Public Service Appointments (CPSA) Code of Practice.  Unless a candidate has secured a place on the Grade III panel, they cannot just be appointed, outside of any process, into a permanent Grade III role.

The position of the HSE was that the Complainant was not unfairly dismissed, her assignment as an agency worker came to an end for valid reasons (namely that there was no longer a requirement for agency staff due to the recruitment via open competition of permanent of staff and in addition the role she was carrying out was no longer required due to the introduction of the IT system, development of which had been ongoing since 2020) and was therefore terminated.  

The Complainant was treated fairly in the context of the termination of her assignment in that she was given the requisite notice under the Minimum Notice & Terms of Employment Act 1973 as amended (namely 1 week, in circumstances where she had less than 2 years of agency service to HSE). 

The position of HSE was that if the cessation of the Complainant’s assignment as an agency worker is considered a “dismissal” then the Respondent’s contention is that such dismissal was not an unfair dismissal, in that there were substantial grounds justifying the dismissal, in accordance with the Unfair Dismissals Act.

The Unfair Dismissal Act 1977 as amended states as follows:

Section 6.—

(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

…..

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

the conduct of the employee,

the redundancy of the employee, and

the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

….

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

Section 13 of the Unfair Dismissals (Amendment) Act 1993 states:

Section 13.—

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 a 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—

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

if the contract was made before such commencement, it shall be deemed to have been made upon such commencement, and

any redress under the Principal Act for unfair dismissal of the individual under the contract shall be awarded against the third person.

The Respondent accepted that it was the ‘hirer’ of the agency worker in question and that, by virtue of Section 13 of the Unfair Dismissals (Amendment) Act 1993, the Complainant is deemed to be employed by the Respondent for the purpose of any redress under the Unfair Dismissals Act as amended. As set out above, the position of the Respondent was that the Complainant’s assignment as an agency worker assigned to temporary agency work with HSE ceased in circumstances where the duties to which she was assigned were no longer required and in circumstances where the required cohort of staff for the department in which she was employed were recruited via open competition. Where the Respondent has permanent vacancies, appointments to those vacancies are  made as a result of open competitions in line with the Commission for Public Service Appointments (CPSA) Code of Practice.

In addition, the Respondent has committed to open recruitment of vacant posts in line with the Public Service Stability Agreement (PSSA – paragraph 2.11.1).   In addition, the Respondent has committed to minimise the use of agency workers (PSSA - paragraph 2.15.1).

The Respondent submitted that the termination of the Complainant’s tenure was justified on “substantial grounds” and was fair and reasonable in all the circumstances.  

In relation to the bases for potential “fair dismissals” set out in Section 6(4) of the 1977 Act– this was not a case where issues of competence (Section 6(4)(a)), or conduct (Section 6(4)(b)) applied.  The Complainant, in her WRC Complaint Form has asserted more than once that the duties she was fulfilling during her temporary assignment as Clerical Officer are still required e.g. “there is a need for what I do” and “the job is still a requirement within the Department”.  The Respondent considered that aspects of the job that the Complainant was doing are now being done by other clerical officers on the team but other duties that she was undertaking are no longer required given the introduction of the IT system referred to above.

The Complainant stated in her complaint that the Respondent was “more inclined to hire in other people to take on aspects of the job” she worked on.   She suggested that there is an obligation in law on the Respondent to hire her on a more full time footing.  Similarly in email correspondence to the WRC dated 22nd June 2023 the Complainant stated “The point however is the job is still a requirement from a HSE perspective. That means therefore as I was the one specially employed to do the job I am the one the HSE needs to hire and can only hire as I was employed in the role from 15/02/2021 until 03/02/2023. Anyone employed for one year and upward is legally entitled to be employed to the position hired for.”   It was not clear on what the Complainant bases these contentions and she has not cited any lawful authority for her propositions.   The Respondent does not accept the Complainant’s contentions on the law.

In relation to the contention that the Complainant made that she should have been continued in her post, the Respondent drew the Adjudication Officer’s attention also to Section 6(4)(d) of the 1977 Act which provides that a dismissal is fair if there is a legal restriction or impediment to the continued employment of the employee – that if the employee is unable to work or continue to work in the position they hold without contravention by them or their employer of a duty or restriction imposed by or under any statute or instrument made under statute.

The attention of the Adjudication Officer was also drawn to Section 24 of the Public Service Management (Recruitment and Appointments) Act 2004, which states: “ Only candidates who have successfully completed the recruitment or promotion process under this Act, including compliance with the code of practice concerned, shall be eligible for appointment.

Subject to subsection (11), a person shall be selected for appointment to a post in the order of merit as determined by the recruitment process.

A candidate shall not be appointed to a post unless—

he or she agrees to undertake the duties attached to the post concerned and to accept the conditions under which those duties are, or may be required to be, performed, and

he or she is fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.”

The Respondent’s stated the Complainant could not have been employed directly by the HSE on a permanent basis to carry out the duties of the agency position she was temporarily assigned to between February 2021 and February 2023 as this would have been a breach of Section 24 and the CPSA Code of Practice which is Code prepared pursuant to the Public Service Management (Recruitment and Appointments) Act 2004. 

Section 6(4) of the Unfair Dismissals Act 1977 as amended also clearly states that its provisions are “without prejudice to the generality of subsection (1)” and in addition or in the alternative, in this case the Respondent contends that the reasons for the Complainant’s termination in this instance constitute “other substantial grounds” justifying termination, the residual category of fair reasons for dismissal provided for at Section 6(1) and Section 6(6) of the 1977 Act.  The Respondent submitted that the reasons for the Complainant’s termination, as set out above, are reasons which are sufficient in the circumstances to justify the termination of the Complainant’s agency assignment, in accordance with Section 6(1) and Section 6(6) of the 1977 Act. The very nature of agency work is that it is intended to be temporary – the legislation governing agency workers is titled the Protection of Employees (Temporary Agency Work) Act 2012.  There is no automatic right or legislative entitlement for agency staff members to be converted to HSE contracts.  The Complainant refers in her correspondence to the WRC about a colleague recently being hired within the Aids & Appliances department. The Respondent wished to reiterate that new staff members within this team have secured their roles as a result of being panelled in open, transparent and competitive HSE recruitment campaigns.

The Respondent submitted that the fact that the requirement for agency workers ceases due to the Hirer recruiting permanent staff directly into the relevant roles (in accordance with the CPSA Code of Practice and the requirements of the Public Service Management (Recruitment and Appointments) Act 2004) amounts to substantial grounds justifying termination.

The Respondent relied upon case ADJ-00012910 A Supervisor / Instructor v A Sheltered Workshop & Care Facility where the Complainant was an agency employee.  He complained that he was treated unfairly when not recruited due to a failure to meet the required qualifications.   The employer’s position was that the job description, terms and conditions etc. were determined by the national agency.  Once recruitment took place there was no longer a need for agency staff.  The Adjudication Officer’s decision was that there was no unfair dismissal. The Adjudication Officer stated “I had to find that the ending of the Complainant’s employment was due to the requirement for Employment Agency staff ceasing to exist at that time. It was not an Unfair Dismissal under the terms of the Unfair Dismissals Act, 1977.”

In the within case, the evidence of the Respondent was that Ms. Talty, the Complainant was and had to have been aware of the likelihood that her temporary agency position was likely to come to an end at some point.  In accordance with Clause 10 of the ‘Protection of Employees (Temporary Agency Work) Act 2012’, The Complainant was informed of vacant posts arising in the HSE and given the opportunity to compete for same.  All job opportunities are also advertised on the HSE website.

The Complainant interviewed for a Grade III Clerical Officer role in the HSE with Mid-West

Community Healthcare on 24th June 2022 via an open recruitment campaign (reference MWCH 22.085). She failed to display sufficient knowledge of the competencies and was therefore not placed on the panel. Other internal and external candidates who were interviewed as part of this same competition (reference MWCH 22.085) were successful, were placed on the panel and have subsequently secured permanent HSE employment.

There is evidence of at least one other applicant who previously worked with the HSE in an agency capacity, applied for this exact same Clerical Officer competition and emerged successful, thus securing a place on the panel and a permanent role.

Had the Complainant been appointed to a permanent role through acting as an agency employee without any interview or any recruitment and selection process, peers who had competed for Grade III Clerical Officer posts via the national and local competitions could justifiably complain that the HSE was not complying with the CPSA Code of Practice.

The Complainant is seeking reinstatement to her c.0.65 whole time equivalent Grade III agency role but there is no such position available; the HSE has filled its open vacancies directly from internal recruitment panels and in fact the role Ms. Talty was doing is no longer required within the Aids & Appliances Department.

The Complainant is not prohibited from applying again for a Grade III Clerical Officer post if a further external competition is advertised.

Subsequent to competing for the Grade III competition in June 2022 (MWCH 22.085) and not being placed on the panel, The Complainant interviewed for a local Grade IV campaign (reference MWCH 22.162) 6 months later on 6th December 2022 (she was sent details of same by HSE line management). On this latter occasion, she was successful and was placed on a sizeable Grade IV panel. In accordance with the aforementioned CPSA Code of Practice, roles will be offered to candidates based on their order of merit. Available opportunities will be brought to their attention for the length of time that the particular panel is in existence (the typical duration is 2 years from the date the panel was formed). The fact of being on a panel does not in itself confer any rights on an individual.

Without prejudice to the Respondent’s position that the cessation of the Complainant’s assignment as an agency worker was not an unfair dismissal, if such is deemed an unfair dismissal the Respondent contends that re-instatement is not an appropriate means of redress in this instance and the Respondent offers the view that compensation is the appropriate remedy.   The Department the Complainant was working in has already attained the required level of staffing.

The Respondent made further legal submissions on the need to mitigate any loss and cited the cases of UD 858/1999  -Sheehan v Continental Administration Co Ltd,

UD/22/8  BOC Gases Ireland Limited V. Mr Stephen Kinsella and

ADJ-00024679 - Darren  Fallon v Shannon Transport & Warehouse Company T/A STL Logisticsto support their contributions on the need to mitigate loss.

In summary, the Respondent submitted that the complaint matter before the WRC which relates to Unfair Dismissal should be dismissed. The WRC complaint form refers to the HSE’s ‘Unwillingness to employ me on a permanent full time basis and employ someone else instead.’ As outlined above, the Complainant’s assignment as a part-time temporary agency worker ceased in circumstances where there was no longer a need for the duties she was conducting to be undertaken, and in circumstances where the required cohort of staff for the department in which she was employed were recruited via open competition in line with the CPSA Code of Practice.  The Respondent submitted that these circumstances constitute “substantial grounds” justifying the termination of her assignment to the HSE as an agency worker and that the termination was fair and reasonable in all the circumstances.

Without prejudice, if the Adjudication Officer considers an unfair dismissal did occur, in the Respondent’s submission, re-instatement is not an appropriate remedy and in determining any award of compensation and due regard should be had to efforts to mitigate her loss by the Complainant.

The Relevant Law

Section 13 of the Unfair Dismissals (Amendment) Act 1993 makes provision for persons engaged through employment agencies as follows:

“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 a 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 be awarded against the third person.”

The time limits for initiating a claim under the Unfair Dismissals Acts 1977-2015 (the “Acts”) are set out in section 8(2) of the Acts as follows:-

“A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015 to the Director General-

(a)    within the period of 6 months beginning on the date of the relevant dismissal,

or

(b)    within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause,

and a copy of the notice shall be given by the Director General to the employer concerned as soon as may be after the receipt of the notice by the Director General.”

Finding

I find, on the evidence presented, that the Complainant was engaged by a Third Party as an agency worker to provide services to the Respondent from 15th February 2021 until 2nd February 2023 and therefore is covered by Section 13 of the Unfair Dismissals (Amendment) Act 1993 and her complaint is lawfully before me.

The Unfair Dismissal Law.

“6.1. Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

Mr. Darren O Shea SEO in charge of the Aids and Appliances Team gave evidence of the need for a specific IT system requirement for the function. He advised their role is t supply medical appliances to people at home who need them. He advised the Complainant was hired for a data entry role until the system was operational. He advised the Cyber attack on the HSE delayed the introduction of the system. He advised the Complainant was made aware of Grade III roles while employed and she applied but was not successful.  He advised the Respondent wanted to move away from having agency staff. He advised the HSE are required to go through particular recruitment processes for full time staff. He advised he had no particular issues with the Complainant. He advised the main reason for the Complainants employment ending was the IT system became operational. He advised any roles in the Department had to be back filled internally or from the public panel and they had a duty to follow the Code of Conduct on Public Service appointments. He advised he continually had conservations with the Complainant about the temporary nature of the role and told the Complainant the role would be coming to an end around February 2023. He advised a number of reasons why the Complainants contract got extended beyond the initial expectation. He advised that in February 2023 he had the full complement of staff and the role was no longer required.

Ms. Sinead Carmody, Staff Officer gave evidence of engaging with the Complainant on a number of occasions and advising the Complainant about the staff situation regarding people on maternity leave and promotions etc and that her employment would not be permanent. She advised she informed the Complainant in November 2022 that her role would be coming to an end and she should look for alternative positions. She advised she had informed FRS of the situation on November 2022 and again in January 2023. 

Ms. Carmody was cross examined by the Complainant and asked why she was not considered for the vacancy in the Department. Ms. Carmody advised there was a Mid West Region Panel and the Respondent had the duty to fill any roles available from this panel in order of merit.

Having considered the submissions and evidence I find that the Complainants employment was terminated as a result of the Respondent no longer needing the service of a third party arrangement to do the work the Complainant was hired to do and it hired a person from a CPSA Panel to fulfil any other work available at Grade III in the Department, as per normal and required recruitment procedures. The Complainant was not placed on this Grade III panel after interview and therefore had no legal right to be considered or appointed to a full time Grade III role within the Department. It is not the Adjudicators role to second guess the decisions of an interview panel regarding whether the Complainant merited being put on the panel.  I find it would have been inappropriate for the Respondent to appoint the Complainant to a Grade III role ahead of a person on a panel created publicly. This would have severely undermined the public process and been unfair to the people on that panel. The fact the Complainant was on a different panel (Grade IV) was not relevant to the selection process for the Grade III post.

I find the Respondent had justifiable and substantial grounds for terminating the relationship with the third party for the service provided (and effectively the employment relationship with the Complainant) on the basis the business need no longer existed, the Complainant was not entitled to  a permanent Grade III  role  and other Grade III roles that became available were filled from the appropriate Panel, which the Complainant had applied for but was not successful in her application. 

I find the Complainant was not unfairly dismissed.

Unfair Dismissal