Worker

Employer

Anonymised Parties

Social Worker

Residential Care Provider

Representatives

Anthony McIntyre                         Independent Workers Union

Naledi Bisiwe IBEC

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act

CA-00057484-001

03/07/2023

This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. The hearing was not, however, conducted in public as it concerned a dispute brought under Section 13 of the Industrial Relations Act of 1969. It should additionally be noted that any recommendation is anonymised in consequence of it’s being a recommendation under the IR Acts.

The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 3rd of July 2023.

In line with the Workplace Relations (Miscellaneous Provisions) Act, 2021 which came into effecton the 29th of July 2021 and where there is the potential for a serious and direct conflict in the evidence between the parties to a complaint, it is open to me to direct that all parties giving oral evidence before me, to swear an oath or make an affirmation as may be appropriate. In the interests of progressing this matter, I confirm that I have in the circumstances administered the said Oath/Affirmation as appropriate. No objection was made to this step being taken. It is noted that the giving of false statements or evidence is an offence.

The Complainant was represented by a member of his Union.  At the outset, the Complainant was happy to make an Affirmation to tell the truth. I was provided with a comprehensive submission dated the 15th day of January 2024 prepared by the Complainant’s representative. The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form.

The Complainant wanted to exercise his right to appeal a decision to terminate his employment. He was denied this opportunity in circumstances where the Employer asserted his Appeal request came too late. The Complainant is looking to have this decision declared unsatisfactory, unreasonable and unfair.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Respondent had IBEC representation at this hearing.  The Respondent provided me with a written submissions dated the 10th of January 2024. I have additionally heard from a number of witnesses representing the position of the Respondent.  No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case. In the course of the hearing, I requested further documents be made available to clarify certain matters. I am grateful that the Respondent was able to oblige this request.  All witness evidence was heard following an Affirmation.

The Respondent’s submission had primarily dealt with the issue of the Complainant’s rights under the Unfair Dismissals legislation. The Respondent’s position with regards to allowing an Appeal was elicited in the course of the hearing and through the evidence of the witnesses on hand. The Respondent robustly defended its actions in this regard.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully listened to the evidence adduced and the submissions made in the course of the hearing which ran before me.

The Complainant/worker herein was engaged by the Respondent entity which provides residential and non-residential social and health care to patients. The Complainant is a care worker, and he commenced his employment with the Respondent on the 18th of July 2022. The Contract of Employment provided for a probationary period of six months with the expectation that there would be regular reviews in the course of the said probationary period. The Contract provided for a two-month extension of the probationary period which the Respondent had to avail of in circumstances where it clearly felt that the Complainant’s performance still required improvement. I accept that the Complainant should have known therefore that his ongoing employment with the Respondent was still at risk and subject to an overall need for improvement. The probation period was now to run to the 18th of March 2023.

The Complainant and his Union representative attended a final review meeting on the 15th of March 2023. It is worth noting that the Complainant’s Union representative indicated that he had no complaints about how this review meeting was conducted and that he thought it had been handled fairly.

In the aftermath of this meeting the Review group considered the Complainant’s ongoing employment and decided that he had not met certain expectations, nor had he  attained certain competencies which were required of care workers.

On Thursday the 16th of March 2023 the Complainant was notified of the fact that the decision had been made to terminate his employment and that his employment would therefore terminate on the 18th of March 2023 – the date already nominated as the end of his extended probationary period. I note that the Employer included a generous four-week payment as part of the termination process and this included any Statutory Notice entitlements.

The last line of the letter reads:-

“You have the right to Appeal this decision. If you wish to do so, you should make an appeal in writing to… the Employee Relations Manager by email …within five (5) working days from the receipt of this letter clearly stating your grounds of appeal.”

The Complainant lodged his Appeal on Wednesday the 22nd of March 2023. The Respondent denied him his right of appeal on the grounds that the Complainant was tardy in requesting same. The Respondent says that the Notice of Appeal came in six days from the receipt of the letter. I am asserting that as there is no suggestion that the day of receipt should be included, it is not included.

The focus of the problem appears to be the interpretation of the phrase working days.

In the first instance, I am persuaded that (as a matter of common sense) the ordinary meaning of this phrase is intended to mean the days of the week Monday through Friday and is not intended to include Saturdays and Sundays. However, I must and do accept that there must be flexibility as this definition does not allow for workplaces that operate around the clock seven days a week.

The Respondent states that as this place of work has a residential element, it has to consider every day to be a working day. This however raises the question why use the phrase working day at all? Why not just give a five-day cut off point? This would perhaps be simpler than putting the onus on the Employee to figure out what he or she should consider to be a working day.

In the circumstances before me, for example, the day after the Complainant was told that he was being let go was St. Patrick’s Day – a National Holiday. The Complainant was not assigned to work that day but by the Respondent’s logic (i.e. that every day is a working day) he should have counted the National Holiday as one working day for the purposes of calculating the five working days. I do not accept this logic. This was not a working day for the Complainant and was never intended to be.

To my mind, the only way to calculate working days (in the context of the Complainant’s need to calculate the time up to which he could submit his Appeal) was to look at his work schedule for the days after the 16th of March 2023. I had a schedule for the end of the week up to Sunday the 19th of March. I note he was scheduled to work the 18th and 19th.

When I sought this information, however, it was not available as there was no schedule/work roster which included the Complainant for the days from Monday the  20th of March 2023. This seemed unusual to me for planning purposes as there is a big team of employees to be rostered each week. The fact that the Complainant was dropped from all drafts and schedules for the week commencing the 20th of March suggested to me that his termination might have been assumed from before the Review meeting with him on the 15th  of March. However, this was not something that the Complainant wanted to explore.

It also seemed to me unfair to use the phrase working days and then not to provide any further working days. This seemed to negate the demand and rendered it null and void from the start.

Throughout the hearing the Respondent remained intransigent. None of the witnesses would accept that the Complainant was entitled to have an Appeal hearing – as he was outside of the time allowed. None of them could accept that there was room for flexibility. Perhaps the most worrying aspect of this matter was the failure on the part of the Respondent witnesses to accept the desirability (from the Complainant’s point of view) of having an independent consideration of the review and final decision to terminate the employment. To my mind there should be no fear of an independent scrutiny and the failure to allow one simply drew negative attention to the decision-making process.

On balance I accept that the Complainant has demonstrated that the Respondent has acted unreasonably and unfairly. The Respondent has sought to impose an arbitrary, ill-explained and wrongly interpreted time limit on the Complainant in circumstances where there is no Statutory demand. This is the application of an in-house process that prevented the Complainant from exercising the Complainant’s right to Appeal a decision which has so detrimentally impacted his livelihood.

It is critical to note that the Respondent could not demonstrate that there would have been any prejudice in proceeding with this appeal.  For the purpose of clarity, even had the curve ball of using the phrase working days not been a factor, I would have been critical of any Employer refusing to implement an appeal process which is promptly applied for, and where no prejudice is shown.

In making a recommendation I am mindful of the fact that the Complainant has moved on from the workplace. I also recognise that the Complainant’s performance had been a critical issue.