Complainant

Respondent

Parties

Jonathan  Joyce

HSE Child And Adolescent Mental Health Service (CAMHS)

Complainant

Respondent

Anonymised Parties

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-00056099-001

17/04/2023

The Complainant commenced employment with the Respondent on 16.03.21. His employment finally ended on 27.12.22. His employment consisted of different contracts in different service areas over the period encompassed by the starting and finishing dates. He resigned at one stage.  Notice of the dismissal for the purposes of the complaint was received on 20.21.22. The Complainant was employed through an agency. The various placements are not all covered by detailed written contracts. The final contract was for the purposes of providing cover for an employee on maternity leave.

The decision to dismiss the Complainant was taken by Ms Coyle. Mr Joyce and Ms Coyle gave sworn evidence at the hearing.

At the time of his dismissal Mr Joyce worked 28 hours per week and his gross rate of pay was €760.76 per fortnight.

The complaint is one of unfair dismissal which is denied.

Key preliminary issues arise for consideration in this case.

The HSE provided a detailed written statement containing an account of the Complainant’s employment history, including issues or difficulties which they say occurred during the period of his employment. As that statement was clearly written by Ms Coyle as the person who was both the relevant senior manager and the ultimate decision maker, Ms Coyle confirmed that the statement provided represented her evidence in the matter.

One of the central defences put forward by the Respondent in their statement was that the Complainant was not unfairly dismissed, his agency contract was simply not renewed as he had not been able to fulfil the required role.

 In support of their Defence Ms Coyle gave a written chronological supported by an oral account of some of the key issues which occurred over the course of the period of employment including those issues which led to the decision in December 2022 to no longer retain the services of the Complainant. The difficulties were described as the Complainant demonstrating a lack of awareness of his role as a social worker operating within a multidisciplinary team (consultant doctor and allied health professionals). Issues arose in the period between 16th March 2021 and 30th August 2021 in CAMHs relating to a meeting in July 2021. Ms Coyle maintained that she had pointed out to the Complainant that there were issues around an ability to take direction. The Respondent detailed the issues concerning the Complainant which occurred in Offaly CAMHs between 30th August 2021 and 23rd September 2021 and in Laois CAMHs between 23rd November 2021 and the end of April 2022. At this point there was a break in service between June 2022, when the Complainant resigned, before the Complainant returned to YAMHs on 12th September 2022. On 10th November 2022 the Complainant requested a meeting with Ms Coyle where he described a difficult exchange with one of the doctors and it was agreed that he would apologise to the doctor at the next team meeting. The Complainant rang Ms Coyle after this meeting to tell her of a further incident with a new nurse on the team which he had not mentioned to Ms Coyle. She described difficulties which he appeared to have in engaging with the team at a development day on 17th November 2022.

The Complainant continuously found himself challenging direction of the MDT. The Complainant was advised of these difficulties on almost on a monthly basis in direct meetings by Ms Coyle as principal social worker. He was given clear boundaries and targets to achieve however despite assurances that he would meet these the opposite was the case. Regarding the delays in payments Ms Coyle had explained the difficulty if claims were not submitted in time for her to sign off and the need to notify her if the claim was going to be submitted on a day when she was not working.  In December 2022 the Complainant circulated an email to various people including a consultant in which he said he would not be attending for work that week as scheduled, because of delayed payments. He then turned up the following day without notice. Ms Coyle met with the Complainant and expressed concern about his email and relationships generally and problems continuing to arise. On 19 December she was contacted by the consultant copied on the email who expressed concern about the email and other aspects of the relationship with staff which she was not aware of at the time. At that point she decided that the situation was not working out. She contacted Mr Joyce and asked to meet with him. The following day she advised him that she was not prepared to continue to engage his services as, despite a large number of meetings the Complainant was simply not improving and to continue to engage him would have implications for the MDT and the service to clients. At that point the Complainant was advised that she would be advising CPL, his employer, that she would not be seeking his services any further.

Queried on the content of the references provided, Ms Coyle replied that it was her understanding that she was required to complete each of the questions asked by the employer/or agency regarding the employee. Post the hearing, the HSE advised there are no guidelines for managers to follow when completing questionnaires/references for former employees.

The Complainant gave an account of the issues he experienced in working with the HSE, particularly those relating to his time in CAMHS and professional clinical differences which he had and which he discussed with Ms Coyle at different stages. He also spoke about many difficulties he experienced with getting timesheets signed off by Ms Coyle and delays in his wages, providing documentary support. The problem appeared to have been resolved but then reappeared when the manager returned from leave in November. At one stage in early December 2022, he simply could not afford to travel to work because he had no wages. He emailed various senior managers about that difficulty on 1 December. He was accused by Ms Coyle of putting patients at risk in not attending for work and instructed not to attend work again until December 8th . On 19 December, he was called to a meeting for the following day at which he was informed that he was to be dismissed with a weeks’ notice. No procedure was followed by the employer. The dismissal was unfair. He questioned the account of various meetings being convened by management to discuss issues. He had actually reported some of the matters which were now being cited against him. At the meeting on 20 December 2022, it was suggested that he may have mental health problems which concerned him and which he rejected.  Of serious concern to the Complainant is that,  following his dismissal, references were issued by Ms Coyle which contained adverse comments about his work performance through  his team relationships. At least one job offer was withdrawn because of the contents of a reference issued by the HSE. He was no longer able to work at his professional occupation as a social worker because of those references.  He has since taken up employment as a health care worker, at a lower hourly rate of pay and in which it is necessary to work much longer hours to offset his losses.

Having reviewed the case presented by the parties and the associated documentation, it is evident that there are three key preliminary issues to be decided before consideration can be given to the substance of the complaint of unfair dismissal.

1.      The responsibility of a third party (HSE in this instance) where an agency worker is dismissed.

2.      Was this a case of expiry of a contract (contract not being renewed) as claimed by the HSE in the statement of evidence  provided by Ms Coyle.

3.      In December 2022, did the Complainant have twelve months continuous service for the purposes of the Unfair Dismissals Act.

Each of the preliminary issues is to be decided by reference to the relevant sections of the Unfair Dismissals Act 1977 as amended.

1.       The responsibility of a third party where an agency worker is dismissed.

While it may be presumed that when engaging an agency worker an employer, especially a state employer, will have a written contract with the agency and the agency will in turn have a written contract with the agency worker to cover all of the placements, particularly where the placement is not of a very short duration. Surprisingly, in this case, there was only one written contract to cover the details of the contractual arrangement which governed the employment of Mr Joyce by the HSE. That contract was issued at the commencement of the employment relationship in March 2021. From the hearing, it emerged through the evidence of Ms Coyle that final contract on which Mr Joyce was engaged in CAMHS from September 2022 was to provide cover for an employee on maternity leave with no finishing date specified but expected to run until May 2023. In the event the employee on maternity leave did not return until August 2023. There was no paperwork available to cover the terms of this contract or the total of other verbal contracts agreed from the end of August 2021. Even more surprisingly it appears that arrangements both joining and leaving and moving within the service were made between the agency worker of his own volition or with the third party. Where the agency came into these contractual arrangements is not quite clear, other than providing a vehicle for payment. The informality around these arrangements and the payment arrangements where these are managed by the agency seems to have created an impression within this area of the HSE at least, that any responsibility for the termination of an agency workers employment i.e. their dismissal can be exercised by simply telling the agency worker out of courtesy and informing the agency they no longer wish to employ the agency worker. This is not the case.

Extract Unfair Dismissals Act Agency Workers-Section 13 annotations states:

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.

From the forgoing extract, it is clear that the status of the agency worker for the purposes of the Unfair Dismissals Act is one of employee and that the third party, in this case the HSE, is liable for any redress where a dismissal is found to be unfair. There is nothing in the Act which suggests a different or crucially lower standard of procedural fairness or substance as would apply to any other employee of the HSE applies to the dismissal of an agency worker. Indeed, the contract issued in March 2021 contains a reference to a disciplinary procedure, the HSEs own procedure and the Complainant was provided with a copy of same. The line manager in this case does not seem to have been aware of the contractual and statutory obligations of the HSE in this scenario. A meeting with an employee, including an agency worker, combined with a phone call to an agency saying that they no longer wish to engage a particular (agency) employee is highly unlikely to protect the HSE against complaints of unfair dismissals. While they may be paid through the recruitment agency payroll system, they are in fact HSE employees for the purposes of the UD Act at that stage.   Recognising that the circumstances may not always be as clear cut or straightforward as in the case of other HSE employees, an entire negation of rights based on employment status cannot be the standard of due process  applied to this category of employee.

In terms of a finding, the HSE is responsible and answerable for the dismissal of Mr Joyce.

2.      Was this a case of expiry of a contract (contract not being renewed) as claimed by the HSE in the written statement provided by Ms Coyle.

I believe this issue was clarified at the hearing. However, for the record and given the general lack of awareness in this case of the rights and obligations under the Unfair Dismissals Act, the difference between the language used in the HSE and the legislation i.e., one of a contract not being renewed, it seems useful to record the reason why the term used in evidence is not correct.

Unfair Dismissal Act definitions of a dismissal for the purposes of the Act.

“dismissal”, in relation to an employee, means—

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;

Given there are no written terms covering this final period of employment, the term renewal for the purposes of defending a claim of unfair dismissal under the legislation, could only have applied where the contract was for a clear specific purpose or date and was not renewed beyond that date or on the expiry of that purpose. The purpose and duration of the contract may well have been agreed and understood between the HSE and Mr Joyce as being one of providing maternity cover. However as there is nothing to indicate a renewable element to contract while the other employee was on maternity leave and the  purpose had not expired, the HSE  is not correct in contending that the decision to dismiss in this case  was merely a decision not to renew a contract. It was a decision not to continue a contract during its course, an entirely different position and effect altogether. For the sake of completeness there was a contract arrangement commencing on 09.05.22 which was due to run until 28.11.22(the one from which Mr Joyce resigned), but as the end date does not coincide with the date of dismissal, that does not explain the use of the terms renewal in this case.

3.      In December 2022, did the Complainant have twelve months continuous service for the purposes of the Unfair Dismissals Act?

Unless there are grounds which are excepted grounds where an employee is not required to have a specific length of service to qualify for a decision under the Act, for the purposes of the Unfair Dismissals Act in normal or more usual circumstances the employee is required to have twelve months continuous service. In his complaint form, Mr Joyce gave the period of employment as commencing on 16.03.21 terminating by way of dismissal on 27.12.22, a period of in excess of twelve months. At the hearing, there were references to a break in service with CAMHS/YAMHS. Also, within the complaint form Mr Joyce refers to a resignation in June 2022 which he described as a constructive dismissal.

From an examination of all of the documentation and dates provided in evidence and post the hearing, the following is my account of the chronology of contracts, bearing in mind that there is no matching written contract for each period worked and there were some differences between the dates provided by both parties.

16.03.21 -30.08.21 CAMHS

31.08.21-23.09.21 CAMHS Offaly

24.04.21-22.11.21

05.10.21- 22.11.21 YAMHS

23.11.21-CAMHS  -05.22 CAMHS

05.22- 06.22 CAMHS -  Complainant handed in notice in June 2022 and resigned-contract due to expire on 28.11.22)

12.09.22 Returned to CAMHS – maternity cover to August 2023.

20.12.22 Notice of dismissal

Based on the forgoing and the evidence at the hearing, while the span of dates of commencement and dismissal provided in the complaint form are correct, there was not twelve months continuous service with the HSE or CAMHS at the time of the dismissal, even allowing for the fact that there were different purpose verbal contracts at each stage and in each location bar the first written contract. Mr Joyce terminated his own contract and broke his service when he resigned in June 2022. The dismissal to be decided by the WRC is related not to the events of June 2022 which the Complainant described in his complaint form as a constructive dismissal, but rather what occurred in December 2022 at which time he did not have twelve months continuous service. The complainants service for the purposes of the Unfair Dismissals Act is less than the normal qualifying period required under that legislation and cannot be decided under the legislation as his continuous service does not qualify him under the Act. The complaint is therefore dismissed without any further consideration of the substance of the case. 

CA-00056099-001 The complaint made by Jonathon Joyce against the HSE under the Unfair Dismissals is dismissed on the basis that the Complainant does have the necessary qualifying service to bring the complaint and to have it decided under the Unfair Dismissals Act and to receive any grant of redress in accordance with section 7 of that Act.

Agency Worker-Continuous Service