Complainant

Respondent

Parties

Stephanie  McArdle

Tempowell Ltd

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00063561-001

20/05/2024

The complainant commenced employment with the respondent on 2 February 2024.  Her employment ended on 5 June 2024.  A complaint was received by the WRC on 20 May 2024.

In the Complaint Form submitted to the WRC the complainant submits that she was head-hunted from another company to take up employment with the respondent.  On 12 February 2024, she started working for the respondent on agreed terms. On 15 February 2024, the complainant was approached by HR to inform her about an open position for another role as the previous employee had resigned. The complainant agreed to take this role, which had different terms and conditions and pay rate than the role she was in at that time.  On 8 May 2024, the complainant submits that she was approached by HR and the Chief Operating Officer and told by them that the respondent had decided to implement a new structure and that her new role was to be eliminated. The complainant submits that this information was withheld from her during negotiations while she was in her previous employment.  Her contract terms were restructured without her consent.  She submits that she has been misled by the respondent in their efforts to recruit her for her role and she has since been demoted without her consent or prior knowledge.

The complainant gave evidence on oath at the hearing.

The complainant stated that she had been pursued by the respondent and accepted a role as Clinical Nurse Manager 3.  Just four days after commencing work with the respondent she was asked about taking up a new role as a n Assistant Director of Nursing (ADON).  She accepted the new position, she believed that this was a permanent position.  However, when another ADON who had been on maternity leave returned to work, she was told that her position was gone and that she could go back to a position of CNM, she was never told what rank of CNM.

When the complainant saw the document detailing the roles and responsibilities for this other role, she considered them to be more akin to those of a CNM 1 than a CNM 3, and at a 1 rate of pay. The complainant refused to accept this offer, take a demotion, and leave the ADON position.

The complainant stated that the addendum [to her contract] provided by the respondent to her for the ADON position did not indicate that it was a temporary position.  She says she never accepted the new terms offered to her and she never got a response to emails she sent about this matter.

Around this time the complainant took two weeks leave. She returned to work and continued to work as an ADON but she found herself excluded from important matters by her colleagues. She continued on working as best she could in the circumstances.  Matters deteriorated at work and the complainant felt her professional relationships had broken down to a large degree. She felt her professional reputation was at risk due to the lack of support she was receiving.  Rather than have her professional reputation tarnished the complainant took the decision to resign from her employment with the respondent. She tendered her resignation and worked out her notice period.

The complainant stated the whole episode had been very difficult for her and has impacted on her professionally.  It has also caused her financial difficulties. 

The respondent provided a written submission.

The respondent submits that the complainant commenced employment as a Clinical Nurse Manager (CNM) with the respondent on 12 February 2024.

On 15 February 2024, the complainant was approached by HR and informed that due to another employee resigning there was a vacant position of Assistant Director of Nursing (ADON) and asked if she was interested in the role.  This new role to become effective from 18 March 2024.

On 8 May 2024, the respondent’s Chief Operating Officer and Interim HR Manager, met the complainant and advised her that the company was considering a restructure and that the complainant’s ADON role was no longer viable.

Arising from this situation, the complainant was offered the opportunity to revert back to the CNM role which she had originally been offered in February 2024. On the same day the complainant sent a reply email to the Interim HR Manager, stating that she did not accept the new terms and conditions as she had been offered a permanent position of ADON, which she had accepted.

The respondent accepts that the timing of the proposed restructure was unfortunate from the complainant’s perspective but the role offered was intended to be permanent and did not entail a temporary element.

On 13 May 2024, a new HR Operations Manager joined the company. The respondent submits that this new appointee tried to arrange a meeting with the complainant on 21 May 2024, however the WRC complaint was received before this meeting took place.

On 28 May 2024, the newly appointed HR Operations Manager met with the complainant to discuss the issues. This meeting entailed discussion around roster difficulties etc.  The HR Operations Officer assured the complainant that no change in the ADON role would take occur until she, the HR Operations Manager, had carried out a full review of the issue.

Notwithstanding the above-mentioned reassurances, the following day, 29 May 2024, the complainant sent an email to the respondent advising of her intention to resign from her position as and from 5 June 2024.

The respondent submits that the complainant was not, at any time, a Fixed Term worker. The role when offered to the complainant initially, was intended to be a permanent, full-time role and not a temporary role with an end date, as required by the 2003 Act.

The respondent submits that several attempts were made by the respondent to resolve the issues but the complainant resigned from her employment before a resolution could be found.

The complainant has made her complaint under the Protection of Employees (Fixed Term) Act, 2003.

 Section 2 (1) Interpretation states;

“fixed-term employee” means a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event but does not include—

(a) employees in initial vocational training relationships or apprenticeship schemes, or

(b) employees with a contract of employment which has been concluded within the framework of a specific public or publicly-supported training, integration or vocational retraining programme;”

I accept the bona fides of the complainant and recognise she was extremely unfortunate in how matters unfolded during her time working for the respondent. However, it is clear from the evidence adduced at the hearing that the complainant the complainant was never employed by the respondent as a fixed-term employee.  She therefore does not fall within the scope of the 2003 Act.

In such circumstances I find that her complaint is misconceived.

The complaint is misconceived and is not well founded.

Fixed-term employee, contract of employment.