MND247

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00043469 (CA-00054236-002)

BACKGROUND:

The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 1 September 2023 in accordance with Section 44 of the Workplace Relations Act, 2015. A Labour Court hearing took place on 06 June 2024.

The following is the Decision of the Court.

DECISION:

Background to the Appeal

This is an appeal on behalf of the Health Service Executive (‘the Respondent’) from a decision of an Adjudication Officer (ADJ-00043469/CA-00054236-002, dated 22 August 2023) under the Minimum Notice and Terms of Employment Act 1973 (‘the Act’). The Adjudication Officer found that the Complainant – Ms Christine Connolly – had been unfairly dismissed, without notice, and awarded her compensation of €1,500.00 under the Act. The Respondent’s Notice of Appeal was received in the Court on 1 September 2023. The Court heard the appeal in Waterford on 6 June 2024 in conjunction with the Respondent’s related appeal under the Unfair Dismissals Act 1977. The Court’s decision in that case bears reference number UD/23/134.

The Complainant’s Evidence

The Complainant told the Court that she commenced her employment as an agency worker with the Health Service South Tipperary Mental Health Services (St Luke’s) in September 2018, placed there by Noel Recruitment. Her evidence was that Ms Tara Guthrie was her HSE supervisor and that Ms Guthrie prepared the rota and directed where she would work at all times as part of the household or catering staff as required.

According to the Complainant, an issue occurred in the workplace on 27 June 2022 when she was accused by Ms Guthrie of having shouted at, and confronted, a colleague in the workplace. Ms Guthrie asked her to work in a different unit for the remainder of the day. The Complainant said she requested a meeting to resolve the issue but this was denied. The Complainant says she was also accused at this time of breaching GDPR by speaking outside the workplace about confidential matters concerning a patient. 

The Complainant said that she then heard from her contact in Noel Recruitment, Ms Linehan, who told her that she had been dismissed from St Luke’s and barred from the grounds and premises there. Ms Linehan subsequently told the Complainant, she said, that Noel Recruitment would carry out an investigation into the allegations against her. This was done, she said, and concluded that she had no case to answer and, on that basis, her employment with Noel Recruitment would continue.

According to the Complainant, her last day of employment in St Luke’s was 30 June 2022. She said she was without work for about one week until she was placed by the Agency in St. Patrick’s, a HSE facility for care of the older person which is quite proximate to St Luke’s. She said that she may have taken some accrued annual leave during that week.

The Complainant told the Court that initially worked a three-day week at St Patrick’s but is now working a four-day week there. She had been full time, she said, while working in St Luke’s. She is also on a higher rate of pay in her new role, earning €744.83 per week compared to €513.86 in her old job.

The Complainant accepted that her contract with Noel Recruitment provides that she may be transferred to different locations from time to time.

Evidence of Ms Tara Guthrie

The witness told the Court that she worked as a chief before becoming the Household Supervisor in St Luke’s in 2020. Part of her role, she said, involved booking agency staff, such as the Complainant, for cleaning and catering purposes as required.

The witness then gave evidence in relation to her recollection of the events of 27 June 2022. She told the Court that she received a telephone call from Ms Eileen Nagle (Deputy Service Manager, Mental Health Services) regarding an incident that had occurred involving the Complainant. The witness said she approached the Complainant to ask her for an explanation of what had taken place. She said she had been informed by a nurse in the location where the Complainant was working that day that a family member of a service user in that unit had rung in to make a complaint that the Complainant had allegedly being speaking about the service user’s affairs outside the service. By that time there were less than forty minutes of the Complainant’s shift remaining and the witness, she said, asked her to work in a different unit for that period. The witness said she then reported back to Ms Nagle and a decision was taken to move the Complainant off-site and to report the matter to Ms Linehan in Noel Recruitment. When contacted, Ms Linehan - according to the witness – requested a report be sent to her via email and this was done by Ms Nagle.

According to the witness, the Complainant came back on site in St Luke’s the following day and spoke to the nurse in charge to request a reference. To the witness’s knowledge, this nurse was unaware of the incident that had occurred the previous day but asked the Complainant to leave because the doctor was due into the office. The witness said she contacted Ms Linehan to advise her that the Complainant was gone from St Luke’s and should not be coming on site. The witness also said that she was told by Ms Linehan that Noel Recruitment would run its own investigation and would not share the outcome with the Respondent.

Evidence of Ms Eileen Nagle

The witness told the Court that a member of the administrative staff had been very distressed on 27 June 2022 following an interaction she had had with the Complainant. The witness also said that the CNM a received a telephone complaint alleging that the Complainant had breached GDPR by speaking externally about a service user. The witness then told the Court that she informed Noel Recruitment about these matters. Her evidence was that if the allegations had been raised about a HSE employee she would have initially addressed them informally before commencing a disciplinary process, if necessary. It was also her evidence that the Respondent’s disciplinary policy does not extend to agency workers, such as the Complainant.

The witness said she had two telephone conversations with Ms Linehan in Noel Recruitment and that the latter advised her that they would carry out their own investigation. The witness said she requested to be informed of the outcome but Ms Linehan said that she would have to check with the data protection person in Noel Recruitment before she could commit to that. According to the witness, Ms Linehan reverted to say that the Agency would not be relaying the findings from its investigation to the Respondent. The witness confirmed that she had informed Ms Linehan that St Luke’s would not be requiring the Complainant’s services in the future. The witness told the Court that she did not disseminate this information elsewhere in the HSE.

Under cross-examination, the witness confirmed that it was her decision to terminate the Complainant’s engagement.

The Law

Section 1 of the Act defines an ‘employee’ for the purposes of the Act as “an individual who has entered into or works under a contract with an employer, whether the contract be for manual labour, clerical work or otherwise, whether it be expressed or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or otherwise, and cognate expressions shall be construed accordingly”.

There is no definition of ‘employer’ in the Act.

Discussion and Decision

In UD/23/134, the Court – applying section 13 of the Unfair Dismissals (Amendment) Act 1993 – found that the Respondent was the Complainant’s employer for the purpose of that appeal. However, there is no ‘section 13’ equivalent for the purposes of the Act of 1973. It follows, therefore, having regard to the definition of ‘employee’ in the Act that the Complainant has not identified the correct respondent in this matter.

The appeal, accordingly, succeeds and the decision of the Adjudication Officer is set aside.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
AR	______________________
25 June 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Aidan Ralph, Court Secretary.