Complainant

Respondent

Parties

Debaprasad  Haldar

Health Service Executive (HSE)

Representatives

Thomas G Myles Employment Rights Advice

Eamonn Ross Employee Relations Department

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-00053693-001

09/11/2022

The Complainant was employed by the Respondent as a Senior Occupational Therapist (OT) since February 2006. His employment was terminated by the Respondent on 20 July 2023 because of ongoing performance issues. He asserts that the dismissal was unfair.

The Complainant stated that he was not given the opportunity to comment on the final report prepared by the Head of Older Persons Services, prior to the decision to dismiss him having been made in May 2023 by the Chief Officer. He stated that this was at odds with the rules of natural justice, in particular “Audi Alteram Partem – Hear the other side”.

The Complainant further asserted that as he had already completed his probation period, after he had initially started his employment, he was a full-time employee and fresh disciplinary proceedings should have been commenced.

The Respondent did not accept that the dismissal was unfair and stated that despite multiple supports having been provided to the Complainant, he continued to operate at a level substantially lower than that which was required of him as a Senior Occupational Therapist. It was also asserted that the Complainant refused to constructively engage, accept constructive feedback, follow lawful instruction or recognise management’s authority.

The Respondent also highlighted that the Complainant had previously been dismissed by the Chief Officer following a Stage IV Disciplinary Hearing in early 2020. However, that dismissal decision was varied by a Dismissals Appeal Committee (“DAC”) in August 2020 where they set out the following: “Consideration of this case by the Committee was a difficult exercise. Refusal to engage with supervision regarding issues of alleged poor performance is definitely a disciplinary matter. To then fail or refuse to engage, on a progressive basis, with the Disciplinary Procedure is to risk reaching the ultimate level of sanction and the situation in which the appellant now finds himself. The Committee notes that the appellant’s behaviour was allegedly informed by advice from someone not acquainted with the principles of performance management, the Disciplinary Procedure or Industrial Relations. While this was foolish and reckless, it is also inexcusable as we must all be accountable for our own actions. He had available to him the services of professional trade union representation, but has only now chosen to avail of those services. The Committee notes the assurances from FORSA that the appellant has now recognised the seriousness of the situation and the error of his previous approach, as well as his willingness to now engage with the issues. FORSA has also undertaken to ensure this compliance on an ongoing basis and will separately represent him at a Fitness to Practice issue. The Committee is also sympathetic to the appellant’s domestic difficulties. He has, however, brought matters to this point himself, seriously damaged the trust of and relationship with his employer (who at all stages acted as per procedure and gave him multiple chances to appear and engage) and the matter cannot be dealt with unsanctioned. On the basis therefore that the appellant

- Accepts and acts only on union advice

- Fully and unreservedly engages with lawful instructions and performance issues

- Agrees to attend all courses, including language ones bearing in mind the union assurances and notwithstanding any results of the CORU inquiry (which are outside our remit) the Committee decides that the appellant should be reinstated in employment with effect from the date of this decision.

The period from the expiry of this notice should be treated as a period of suspension without pay. On reinstatement, he should serve a standard period of probation. He should receive all necessary support in clinical decisions and must fully recognise management’s authority. The appellant and his union must accept that this is a final chance for him to reintegrate into the system. There are no alternatives to succeeding.”

Further to the issuing of this report, Management in Older Persons Services began the formal probationary process, in agreement with the complainant’s union representative, with effect from April 2021 for one year.

During the probationary process, the Complainant was provided with significant clinical and operational supervisory supports which would not ordinarily be required of a professional Occupational Therapist with 18 years post qualification experience. He failed to attain the standards required or address the shortcomings identified to him and his trade union representative however. In addition, the Complainant continued to refuse to constructively engage, accept constructive feedback, follow lawful instruction or fully recognise management’s authority. This had been a consistent pattern of behaviour throughout the previous years which had culminated in the previous disciplinary process.

On 14 April 2022, the Head of Older Persons furnished a comprehensive report to the Chief Officer regarding the reinstatement of the Complainant and set out all information relating to the supports, operational management, clinical supervision, clinical practice/performance of the Complainant, failure to complete assessments, report writing skills, personal presentation, interaction with residents, compliance with the conditions as set by the DAC and her management of the issue once concerns were raised. She concluded that the Complainant was wholly non-compliant with the conditions attaching to his reinstatement by the DAC.

Having reviewed this report, the Chief Officer wrote to the Complainant on 25 May 2022 where she set out the conditions of the reinstatement as confirmed by the Dismissal Appeal Committee in 2021. She detailed the supports that had been put in place for the Complainant; she referenced the various meetings that had taken place throughout the probationary process where the Complainant, accompanied by his union representative, had been advised that he was not meeting the standards required. She confirmed that the probationary period had now concluded and despite the multiple supports provided to the Complainant, he continued to operate substantially below the standard required of his role. She also highlighted a particular concern where the Complainant had refused to accept constructive feedback and recognise management’s authority which was a consistent pattern of behaviour by the Complainant since 2017 to 2020 and had now continued throughout the improvement period afforded to him. The Chief Officer confirmed in her letter that as the Complainant had not met the conditions as set by the DAC, she was terminating his employment and provided him with 8 weeks’ notice where he was not required to work for those 8 weeks. She advised that she was also writing to the DAC to inform them of outcome of the Complainant’s improvement period. She provided him with 8 weeks termination notice and advised that he was not required to work during that period.

CA-00048471-002

The Law:

Section 6(1) of the Unfair Dismissals Act, 1977 provides that “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.”

Section 6 of the Unfair Dismissals Act, 1977 provides as follows:

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:

(a)   the capability, competence or qualification of the employee for performing work of the kind which he was employed by the employer to do,

(b)   the conduct of the employee,

(c)    the redundancy of the employee, and

(d)   the employee being unable to work or continue to work in the position 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 of mainly from one or more grounds specified in subsection (4) of this section or that there were other substantial grounds for justifying the dismissal”.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer…. considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal and

b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.,

The Code of Practice

S.I. No. 146 of 2000 of the Industrial Relations Act 1990 Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order 2000, in relevant part, states:

The essential elements of any procedure for dealing with grievance and disciplinary issues are that they be rational and fair, that the basis for disciplinary action is clear,….and that an internal appeal mechanism is available.

The procedures … must comply with the general principles of natural justice and fair procedures which include:

That employee grievances are fairly examined and processed

That details of any allegations or complaints are put to the employee concerned

That the employee concerned is given the opportunity to respond fully to any such allegations or complaints

That the employee concerned is given the opportunity to avail of the right to be represented during the procedure

That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

FINDINGS

The combined effect of the above sections of the Act requires me to consider if the Respondent’s decision to dismiss the Complainant was reasonable in the circumstances and if it was both substantively and procedurally fair.

I firstly noted that the Disciplinary Appeals Committee (DAC) in their report of 26 August 2020 overturned the decision of 3 February 2020 to dismiss the Complainant, stipulating instead that he be allowed to resume his employment and serve a period of probation. It was further stated that he “must accept that this is a final chance for him to reintegrate into the system. There are no alternatives to succeeding”. The decision of the DAC was the culmination of a protracted disciplinary process that began in September 2017 when the Complainant was issued with an informal warning and followed all of the four stages of the Respondent’s disciplinary procedure over the course of 2018, 2019 and 2020. I do not therefore accept the suggestion of the Complainant’s representative’s that fresh disciplinary procedures should have been initiated when he resumed his employment, following the outcome of the DAC decision, given that there was no improvement in his performance in the 2021/22 probationary period.

I further noted that the conditions for the Complainant’s retention were clearly set out in the report from the DAC of 26 August 2020. In addition, it was not disputed in evidence at the hearing that the comprehensive supports put in place by the Respondent from September 2020, and in the period prior to his dismissal, had been implemented. It must be said that, by any measure, the extent of these supports was extraordinary, and I found the evidence of the Head of Older Persons, a most impressive witness, to be incredibly compelling in this regard.  

I also noted however that the report prepared by the Head of Older Persons, furnished to the Chief Officer and which was used as the basis to dismiss the Complainant, had not been provided to the Complainant. He was therefore not allowed to make representations in relation to same prior to the ultimate decision to dismiss him, although I did note that a meeting was arranged prior to the report being compiled. The failure to afford the Complainant the opportunity to comment on the report prior to the Chief Officer’s decision could be viewed as a breach of the Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order 2000, set out above.

In considering whether the failure to afford him the opportunity to make representations in relation to her report after it had been sent to the Chief Officer rendered the dismissal procedurally unfair, I note in the first instance that the Head of Older Persons was not cross-examined by the Complainant’s representative at the hearing and there was no evidence presented by the Complainant to suggest that any of her report was flawed or inaccurate.   

I am also of the view that the failure to allow the Complainant to comment on the report must be considered in line with section 6(1) of the Act which states that a dismissal should be deemed unfair “unless, having regard to all the circumstances, (my emphasis) there were substantial grounds justifying the dismissal”. In that regard, I note the case of Elstone v CIE (High Court, 13 March 1989, unrep.) it was held:

“that the mere fact of some failing in due or agreed procedures is not a final and decisive matter for the court on appeal is clear from the provision of s. (6)1), that regard must be had ‘to all the circumstances’ and not to one circumstance to the exclusion of the other.”

I further noted that in the case of Shortt v Royal Liver Assurance Ltd [2008] IEHC 332, Laffoy, J held that a central consideration to fair procedures is whether or not any purported breach of natural justice was ‘likely to imperil a fair hearing or fair result.”

Considering all the foregoing, I find that the Respondent acted reasonably, as set out section (6) (7) (a) of the Act, in deciding to terminate the Complainant’s employment and consider it appropriate, as provided for in the legislation, to disregard any breach of the procedures referred to (6) 7 (b) for the reasons set out above. Accordingly, I find that the Complainant was not unfairly dismissed.

I find that the Complainant was not unfairly dismissed for the reasons set out above.