Complainant

Respondent

Parties

Maureen  Lynch

Health Service Executive HSE West

Complainant

Respondent

Anonymised Parties

{text}

{text}

Representatives

Paul Kilraine BL Patrick MacLynn D.M. O'Connor and Co.

Conor White Comyn Kelleher Tobin

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-00032412-001

22/11/2019

This case concerns a complaint by Mr Maureen Lynch who was an agency worker assigned by an employment agency called Servisource to work in the Adult Acute Mental Health Unit of the Mental Health Services at University Hospital Galway (AAMHU). The complaint of unfair dismissal is against the HSE on the grounds that it was the HSE  who dismissed her in mid-2019.

At my request the parties discussed and agreed on the Complainant’s losses over a two-year period as amounting to either €52,000 or €56,000 depending on social welfare contributions. The accounts for the Complainant’s business had been opened to the Respondent and the projected earnings over a two-year period in the HSE were assessed for the losses. By way of redress the Complainant sought to return to work at Merlin Park Hospital in her former role by way of reinstatement/re-engagement. The Respondent’s position was that in the event of any redress being awarded compensation was the appropriate form of redress.

The Complainant commenced working for the Respondent on the 15th of March 2015 in the role of MTA. She was employed through Servisource, an employment agency. Ms Lynch worked an average of 36 hours per week. Initially she started working fulltime in UCHG in the general part of the hospital. In or around October 2015, Ms Lynch was sent to work in the AAMHU and remained working there until she was dismissed on the 9th of June 2019. Ms Lynch was not given any reason for her dismissal; no procedure was implemented. There was no appeal mechanism. Ms Lynch received no notice of the dismissal. In a letter dated the 6th of September 2015 the HSE accepted that the Complainant was,

“…consistently employed for a period of time greater than the 12 month qualifying period specified in the Unfair Dismissals Act 1977. The Unfair Dismissals (Amendment) Act 1993 introduced a provision to the effect that an agency worker can go before a Rights Commissioner and seek a declaration that they are employees of the substantive employer and not an employee of the agency, in circumstances of termination of employment or notice of dismissal.”

That letter also went on to offer the Complainant a fixed-term contract for one year subject to receipt of satisfactory references, police clearance and medical report. The Complainant engaged with the HSE regarding her situation after June 2019. On 11th July 2019 she was informed by email that due to the HSE moratorium there has been a decrease in hours at all HSE facilities. ‘We hope this is reversed in the coming weeks.’ The Complainant emailed again on the 23rd of July inquiring about the delay in her getting back to work and received a response that there would be a recruitment drive for MTAs in the Galway Roscommon Service.

Evidence of Maureen Lynch, Complainant

The Complainant described her work as an MTA in particular “specialling” different patients. She was very much part of a team at Merlin Park Hospital at the Acute Unit and worked closely with the CNMs. She was included on the roster on 12 hours shifts. Gross pay was approximately €27,000 per annum. Referring to the letter of the 6th of September 2017, she was told that she was a great asset and offered a fixed-term contract as an employee which she accepted and provided any of the information that was required of her. She held a FETAC Level 5 and other further training. On the 9th of June 2019 she was informed by the DON that she was to go home early; it was implied that the work was finished. She was not told whether she would be coming back, and nothing really happened after that. She contacted the DON asking what was going on and was never told anything. Questioned regarding the email of the 8th of May 2024 from Servisource and shifts which they say were offered to her after she left the AAMHU, the Complainant confirmed that she was offered those shifts. At that stage she had hit rock bottom and the shifts which were offered were in nursing homes which she had worked in previously, but she wanted to work in the Acute Unit which she enjoyed and had been employed in for almost four years at that stage. She met a CNM who told her to leave it for six months, that everything will settle down. Regarding efforts to obtain work, the Complainant stated that she was on jobseeker’s allowance until March 2020, and she decided to set up her own business operating a van selling coffee and she continues to do so to this day. She kept hoping that she would be contacted again to work at the Unit. The Complainant confirmed that she had not renewed her training certificate. In response to questioning the Complainant stated that the agency had informed her that there was a moratorium on employing MTAs at the Unit and the expression used to her was that it was all over. Nobody told her what was happening, and she worked it out in her own head and by November of 2019 she felt that it was over, and she started looking to establish her own business.

It was confirmed that the Complainant had not signed a contract either with the HSE or with the agency for the assignment to the Mental Health Services Unit at Merlin Park. It was also explained that there were two MTAs in the same situation as her in that they were part of the roster for 12-hour shifts on an ongoing basis.

Asked what happened at the end of the one year referenced in the offer of a fixed-term contract was she for example offered a further period of employment the Complainant responded no that she did not receive any more information after that.

In final remarks the representative for the Complainant stated that in November 2020 the Complainant set up a business at some cost to herself and there were accumulated losses up to 2023. A statement of financial affairs was provided and this year the Complainant hopes that the business will break even. Reinstatement/re-engagement was being sought. The Complainant confirmed that her training has lapsed in the meantime.

In response to the inquiry as to why the situation should not be regarded as a redundancy, the representative replied, due the circumstances of Complainants relationship with the hirer over a period of time.

The position of the Respondent is that the Complainant was never a direct employee of the HSE. The Complainant was an agency worker employed or engaged by Servisource assigned by her agency to work in the services of the Respondent as a multitask attendant (MTA). The Complainant acknowledges in her complaint form that she was employed by the employment agency and not the Respondent. The Complainant set her own availability, and when the Respondent contacted the employment agency seeking workers, the Complainant had the opportunity to either make herself available for those hours or not. On 20th May 2019 a decision was taken to reduce the HSE’s reliance on external agencies for healthcare assistant grade roles with a view to reaching compliance with nationally budgeted targets. The Respondent ceased booking MTAs such as the Complainant for a period of time with effect from the 20th of May 2019. It was February 2020 when the HSE resumed engaging agency MTAs at that Unit.

The HSE continued to engage with the Complainant indicating that while she was employed by Servisource there would be a recruitment drive in the future and roles would likely come available. It is the belief of the Respondent that the Complainant continued in employment with the agency Servisource subsequent to June 2019. In support of this contention an email from Servisource dated the 8th of May 2024 was submitted which stated as follows:

“□  Maureen’s last shift worked at AAAMHU Galway was 09/06/2019.

 □   There is no record of her being dismissed from AAAMHU Galway. A number of shifts after this date were voided and there is a note stating that the patient accompaniment was discontinued.

□    After this date she was offered x1 shift at Merlin Park Unit 5 on 27/06/2019 but didn’t show up. She was also offered x2 shifts in St Anne’s on 05/08 and 06/08 accepted but then later cancelled. She was offered and accepted a number of shifts in Clifden in late October/early November 2019 but there is a note to say that she could not do them shifts anymore as she was starting a new job.

□    She was made inactive on 02/12/2019. A note to state that some of her mandatory training was out of date.”

In circumstances where the Respondent denies that it dismissed the Complainant, it is not accepted that the burden of proof should shift to the Respondent but rather should remain with the Complainant to establish firstly that she was to be treated as equivalent to an employee of the Respondent and thereafter that she was dismissed by the Respondent. The Respondent accepts 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 purposes of any redress. Notwithstanding same as a preliminary legal point the Respondent disputes that a dismissal took place, and the fact of dismissal is in dispute. It is therefore a matter for the Complainant to prove that a dismissal has taken place.

Had the Complainant chosen to remain in the employment of her employer Servisource she would have been eligible to present for hours once the Respondent recommended requesting MTAs from Servisource. Instead, it is submitted that the Complainant elected to leave her role with Servisource in August 2019 and therefore could not be reasonably argued to have been dismissed by the Respondent. The Respondent’s position is that neither the Respondent or the employment agency through which the Complainant was employed dismissed the Complainant either on 19th June 2019 or on any other date. To maintain a complaint of unfair dismissal the Complainant must have been dismissed meaning that an individual’s employment ceases. It is denied that the Complainant was dismissed. She continued to be employed by Servisource. She therefore does not have “locus standi” to maintain an “unfair dismissal” complaint. There is and must be a difference between the cessation of an assignment of an agency worker to a particular hirer and the cessation of their employment as a whole with the agency. Were both these situations to be treated as a “dismissal” then every hirer/end-user of agency workers would potentially face an unfair dismissal claim each and every time an agency worker’s assignment to a hirer was brought to an end. The entire agency work industry simply could not function if that were the case. The termination of an assignment with a hirer/end-user should not of itself give rise to an unfair dismissal claim. It would have to be followed by a termination of employment as a whole by the agency. If it is found that dismissal did not occur on 19th June 2019 or at all, then the within claim must fail. The Respondent cannot be held liable for a dismissal which did not occur.

On the reference to an offer of a fixed terms contract for one year in 2017, for whatever reason the completion of the paperwork was not followed through by the Respondent and the status of the Complainant remained at all times as that of an agency worker, and not that of a direct employee.

In conclusion and following the submissions and evidence the position of the Respondent is that there was no dismissal, hours offered by Servisource were not taken up, the Complainant did not want to work elsewhere, she was never an employee of the HSE and there was a moratorium which also affected other areas. There was little or no mitigation of losses and the Complainant did not seek alternative employment by way of mitigation. By way of clarification the Respondent advised that the Complainant was not directly replaced in February/March 2020 when employment of MTAs through Servisource resumed.

This is a Complainant whose employment record with the HSE was blemish free. This opinion was confirmed by the HSE at the hearing. Given the duration of her employment in the one location which in every respect but one bore all the characteristics of a HSE employee including her integration into the roster and team arrangements it may seem on the face of it that, in principle, she has a legitimate complaint against the HSE. The one crucial difference is, of course, that, despite her lengthy placement in the one location and the offer of a fixed term contract in 2017, the Complainant was not at any time a direct employee of the HSE. What appears to have occurred in mid-2019, is that the service to where she worked was required to implement what are known as cutbacks in their staffing overheads, for budgetary reasons. In these situations, temporary employees, be they direct or agency workers, tend to be the first to bear the brunt of such cutbacks. The question to be considered in the case of the agency workers, of which the Complainant was one of a number of people engaged through Servisource affected by the cuts to the services/budgets, is whether the termination of an entire contract with an agency as distinct from this one individual contract represents a dismissal by the Respondent as the contracting entity, under the Unfair Dismissals Act.

The Unfair Dismissals Act

Definition of Dismissal.

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

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

And in relation to 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

Based on the forgoing extracts one can see why this complaint was made under the Unfair Dismissals Act and against the HSE and why the HSE as the hirer might be considered liable were it found that there was an unfair dismissal. However, a dismissal for the purposes of the Unfair Dismissals Act, including a selection for redundancy is an individual issue wholly or mainly related to the treatment of  a single individual. In this case, and it was mentioned also at the hearing, there was a cessation of a contract between the hirer and the supplying agency which potentially or actually resulted in a dismissal on grounds of redundancy. That cessation affected all MTAs assigned to the particular site, albeit the Complainant had a particularly lengthy engagement as an agency worker on the one site. The question of selecting individuals for redundancy did not arise and in any event, I share the view of the Respondent representative to the effect that to make a hirer responsible for a dismissal in these circumstances i.e., the termination of a contract, would result in chaos within the agency sector. Chaos might be a bit strong and of itself would not provide grounds for rejecting a complaint of unfair dismissal, however in a case where an entire contract is terminated it seems only reasonable to conclude that to hold the hirer responsible for each individuals dismissal would be incongruous. This conclusion is reflected in the terms of the Redundancy Payments Act 1967 at Section 2:

"employer" means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment, subject to the qualification that the 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 the individual concerned in respect of the work or service concerned shall be deemed to be the individual’s employer;

As is usual in contracts for the supply of agency workers to the HSE, wages are paid by the supplying agency and not the HSE, as they were in this case. Given there was a termination of the entire contract at the time, it follows that any liability for lay-off, notice pay and /or redundancy payments was a matter between the agency and the Complainant(and other workers on the same contract). The fact that the Complainants period of employment and her relationship with the hirer was lengthy and quite integrated within the operation does nothing to alter the fact that she was at all times an agency worker paid by the agency. It follows that the contention on her behalf that somehow her personal history and integration within the employment alters her employment status or the way in which she should be regarded or treated in terms of the application of the unfair dismissals act is not correct as a matter of law based on the facts. Based on these conclusions, the complaint of unfair dismissal against the HSE under the UD Act cannot succeed. These conclusions do not automatically infer an entitlement to redundancy or other statutory payments on the part of the agency involved, but simply that they would have been liable for the Complainants contractual situation following the termination of the contract by AAMHU HSE Galway in mid-2019.

Finally, the absence of contractual documentation between the HSE  and an agency workers is noted once again. The situation whereby such workers are engaged through direct contact with a HSE manager without any details of the specific contract or employment rights has now been a factor in three successive complaints under the Unfair Dismissals Act which I have decided in a six-month period. On each occasion I have recorded my concerns about this situation with the HSE. In this particular case, the Complainant stated she had no written contract with the agency either. There is a woeful ignorance about the rights of such workers in terms of a dismissal situation with people being passed from pillar to post and no legal entity taking responsibility for their rights and entitlements, including those concerned with the suspension or  termination of a contract of employment. I will add that in my experience, the legislation under which these complaints are made is rendered far more complex than in a ‘regular’ employment relationship by the nuances around contracts, certainly in the public health sector.

CA-00032412-001 The Complaint of alleged unfair dismissal by Maureen Lynch against the HSE is not well founded and there is therefore no grant of redress.

Dismissal complaint-Agency Worker