Complainant

Respondent

Parties

Joanne  O'Donnell

HSE

Complainant

Respondent

Anonymised Parties

Representatives

Michael Monahan Michael Monahan Solicitor

 Fiona Maguire , Industrial Relations Officer

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-00054176-001

09/12/2022

The claimant submitted that she was employed as a Health Care  Assistant with the respondent  from September 2021 to the 18th.Nov. 2022. She submitted she was dismissed by the employer following a dispute  with her line manager regarding attendance  and alleged that her roster was assigned to other staff and she was left without any shifts. The respondent denies that any dismissal took place  and insisted that work was available both from the HSE and the Agency service by whom she had been recruited -  LocumLink  .It was submitted that the claimant was offered further work which she had declined and that the references to training and supports by the line manager would make no sense in circumstances  of employment ceasing.

It was submitted on behalf of the claimant that the entire submission made by the respondent was that the HSE were not the ultimate employer of the claimant. It was submitted that given that that had now been conceded , the matter reverts to the conduct of the employer in relation to the dismissal by the respondent’s employee Ms.GL.

It was submitted that it was common case that the applicant had worked for in excess of 12 months – working 12 hours shifts for 6 out 0t 7 nights week on / week off.” It was submitted that the various hours were agreed between the parties and were over the required weekly hours required to have an enforceable contract”.

It was advanced that in the absence of a contract of employment the applicant must fall back on recognised procedures for dealing with grievances whether raised by the employee or the employer.

The issue arose in this case about the method of notification of inability to attend at work. On the evening in question, the applicant needed to stay at home as a single mother  to look after her sick child on the evening in question. It was submitted that the claimant notified her line manager by text message and that the text message was recorded as received on the applicant’s phone – for some reason the claimant did not receive a reply from her manager. It was submitted that at this point no reference was made to absence from work for a further 2 days.

Subsequent to this a meeting was arranged  at short notice – it was submitted that the claimant was notified of the meeting at short notice and the claimant was given no indication that her ongoing employment was under consideration. “The applicant was left in no uncertain terms that she had failed to inform by phone as distinct from texting a message to her manager”.

It was submitted that the claimant was given no chance to explain her situation.At the conclusion of the meeting , the claimant was told by her manager that she was going to give her “no hours “ , effectively dismissing her. It was submitted that the claimant was told that contacting the Director of Nursing Mr.T.S. would “not help”. It was submitted that “What followed was not only there being no hours allocated to the applicant but her position was filled by third parties.”

It was submitted that the claimant was not rostered for any work and in her opinion had been dismissed. It was submitted that the claimant was without work for 3 months without explanation. It was submitted that the claimant tried to contact her line manager’s manager to look at the situation, but nobody replied to her calls.

It was submitted that after 3 months , the claimant took up a post with the same agency at a hospital in Sligo and that she suffered a loss of earnings from €2,000net per week to €500 net per week.

It was submitted that the incident in question did not warrant a dismissal and that at best a verbal warning could have issued. It was submitted that the employer chose to organise a meeting concerning the employment without proper notice and without informing her that the meeting could lead to a dismissal. No notes were provided to the claimant to counter the allegations made against her. It was submitted that the respondent’s manager unilaterally cut her hours” completely thus effectively dismissing her” – in circumstances where she had been a loyal employee.

Summary of Pertinent Evidence of Claimant:

The claimant set out a chronology of the events leading up to the dispute regarding the 7th.Nov. 2022 roster. She said when her daughter got sick she texted her line manager – there were 2 ticks on the screen so she knew her manager had received the text- she said otherwise she would have called her. The claimant said her manager never replied. The claimant said she presumed her manager would know she would be back. The claimant said on the following Monday she texted to say she would be ok for the following week and the manager replied her nights were covered. The claimant said she was upset and annoyed – she rang and apologised. The claimant said they agreed to meet for coffee – the manager said she wasn’t qualified enough to work a line and told her not to bother contacting anybody including the DON. The claimant said she left the meeting crying and felt belittled. The claimant said she never got an offer of work at M. She said she was told she was not trained enough to work – she left the meeting.

The claimant said she tried to contact the DON but nobody got back to her. The claimant said when she worked a week on / a week off she was earning €2,000 a week. She was now on €400-€425 per week for 20-22 hours.

Under cross examination, the claimant said she never looked for days because she was a single Mum. The claimant outlined the notification system for work that was in place for offers and acceptance of shifts. The claimant confirmed that the line manager had tried to call her on Wed 8th.Nov. The claimant said she was very annoyed when she was told the line manager had the weeks covered .The claimant said when she texted her manager to say she would not be stuck for work , she was annoyed and in bad form. The claimant said that at her meeting with the line manager she was told she was not qualified to work, that she had to keep the residents safe and not to bother contacting the DON. When it was put to her that she was offered a week’s work, the claimant replied she was offered no work and was not offered an alternative day shift. She said she was offered nothing. The claimant denied that she accepted the offer of a shift in M.The claimant said when she lost her job she was not fit to work – she did not notify Locumlink. The claimant confirmed it was open to her to go to Locumlink and tell them of her preference  for night work. The claimant was adamant that the line manager was not giving her any other shifts because she was not trained.

In summing up the claimant’s representative  asserted that the line manager shifted 2 people into the claimant ‘s place and decided she was not giving her any more hours. It was submitted that the line manager was piqued following the meeting with the claimant. It was submitted that there were no alternative proposals offered to the claimant. It was submitted that it was incumbent on a manager to resolve problems – there was no grievance procedures utilised and the manager was ignorant of the procedures. It was submitted that the claimant was cut off pay the day after the meeting. It was submitted that the claimant was entitled to the protection of procedures and  that cutting off her money was indicative of the behaviour of the respondent.

The following documentation – received on the 6th.Jan. 2025  was furnished to the WRC and the respondent :

Screenshots of emails with the Director of Nursing

A statement that the claimants last day at work was the 6th.Nov 2022

Proof of payments by the DSP in Dec. 2022.

A statement that the claimant did not apply for work and was not offered work between the 6th.Nov. 2022 and January 1st.2023.

A medical certificate from claimant’s GP.

The respondent advised that the claimant  is currently working at St.J’s Community Hospital  via Locumlink Healthcare agency. The claimant commenced in St.J’s Community Hospital in January 2023 and has worked both day and night shifts as notified from her employer Locumlink Healthcare .

It was submitted that  the respondent  has no ‘dismissal’ record on file for the claimant.

It was submitted that  Locumlink Healthcare is an external recruitment agency, who provide temporary resources to the HSE to cover service resourcing needs when required. As per the nationally agreed Service Level agreements in relation to agency usage, Locumlink Healthcare invoice the HSE in respect of timesheets signed by HSE management for the work an agency worker performs.

It was submitted that the claimant  is paid directly from her employer Locumlink Healthcare, who are responsible for all associated employee deductions and employer contributions associated with her  employment. The HSE does not pay directly for her services nor does the HSE deduct or remit her income tax and PRSI.

The respondent’s representative referenced an email  from: Ms.U.N.  Sent: Monday 20 February 2023 13:24  to the respondent confirming  “that the claimant  worked with HSE Cregg Services only between Sept 2021 and Dec 2021. She  continues to work on an agency basis in HSE locations.

It was submitted that the above is contradictory to the claimant’s  WRC complaint, seeking ‘Reinstatement’ and also that she has not taken up employment  and that she was unfairly dismissed. In this context  it was advanced that the complaint submitted is ill founded and should be dismissed.

Background

Within Sligo / Leitrim Disability Services, the claimant  had worked at a number of HSE locations and for a period of time at ‘Meadow view’ Cashelgarron, Co. Sligo where the complaint relates to. The claimant  worked 6 of 7 nights every fortnight on a rolling roster basis. The pattern was Wednesday, Thursday, Friday (off Saturday), Sunday, Monday, and Tuesday. The respondent’s representative set out a chronology of the exchanges via text message between the claimant and her line manager regarding the claimant’s attendance on the 7th.November 2022. As per the below WhatsApp message received from the claimant  on Monday 7th. November, 2022 she advised; ” Hi G I won’t be able to work tonight as my wee 1 is sick had to collect her from school early sorry”.                      

The claimant was scheduled to work on Tuesday 8.th November as part of her normal roster, however, she did not report for duty or contact management to advise of her absence. When Ms.L arrived to work on the 9th. November, she phoned the claimant  due to her failure to report for duty or contact management in advance.  It was submitted that the claimant did not take Ms.L’s call or phone her back. The next time Ms.L heard from the claimant  was via text message on the 15th November – to advise “Hi Geraldine sorry never got back to ya last wk had a rough week with G, all good for 2moro night but I can’t do Friday as I have no minder.”

It was submitted that the line manager   issues a 2 week roster by close of business on a Friday. This is put up on the notice board in the house. It would not be a legitimate expectation for a roster to be issued the day before to staff. Ms.L  is the person in charge of this service and has sole responsibility for the appropriate staffing of the service to ensure the health and safety and needs of the residents are met.  It was submitted that Ms. L made a number of attempts to contact the claimant relation to her notice of returning to work which was due to be on the 16th November, 2022. It was submitted that the claimant did not answer or respond to any attempt made by Ms.L to contact her.

 Response from Ms.L; “I understand that its difficult but you didn’t make any contact by phone to let me know that you weren’t coming in and then you didn’t show up on Tuesday. I tried to contact you. I have the week of nights covered as I had no choice and didn’t want to leave it to last minute as I didn’t know what the story was”.

 Response from the claimant ; “Well G I’m a single Mum and my daughter was very sick and to take her to a and e the morning you were ringing me, work was the last thing on my mind!! That was last week I’m sure you knew fine well I’d be ok for work this week but if you wana be like that’s fine I won’t be stuck for work” .

17th November, 2022 Ms.L received a phone call from the claimant  to apologise. During this call, Ms.L arranged to meet with  the claimant to discuss expectations relating to notice of her availability.

 Ms.L’s account of the meeting was read into the record. At the meeting , Ms.L advised that there was a number of issues to be discussed in relation to work commitment .The line manager reiterated the importance of calling management in advance to ensure the message is received. Where management only becomes aware at the last minute, this makes it extremely difficult to source an alternative arrangement, which has detrimental impact on the residents we care for.

· The claimant advised the manager   that she should have contacted her to confirm if she was available.

· Ms.L advised  the claimant  that this was not something that she could do and that where someone is scheduled to attend, that responsibility sits with that person to notify management within a reasonable timeframe.

· The claimant  apologised and advised that this would not happen again.

 · Ms.L had also discussed with  the claimant the tone of the Text message she had sent. The claimant apologised and said that she was mad at the time.

· Ms.L advised the claimant  that the current week of nights had been covered as her availability to work was not confirmed. Ms.L has a responsibility to ensure the appropriate staffing is in place at all times.

 · Ms.L advised that she recognised that the claimant  needed the hours of work and offered her full time working hours on days.

 · The claimant advised in reply that this was discrimination against her, as her daughter was sick. Ms.L tried to reassure the claimant  that this was not the case, however, the claimant  advised she would contact the Director of Nursing as this was discrimination and left the meeting. Ms.L offered the claimant  alternative day shifts for the coming rostered week, however, she  declined this offer of work. At the meeting, Ms.L  discussed mandatory training with the claimant  as some of her courses were no longer up to date. Ms.L  advised that the SAMS and Epilepsy courses could be completed on the scheduled day shifts discussed but the claimant declined.

As advised the claimant  is paid directly from her employer Locumlink Healthcare, who are responsible for all associated employee deductions and employer contributions associated with the claimant ’s employment. The respondent’s representative  identified the various community homes where the claimant had worked.

 As per the contract with Locumlink Healthcare, HSE management contact the external agency advising of the service need and request applicable resources to cover shifts on a temporary basis. As described above, the claimant was aggrieved that the specific week of nights was already covered in her absence as she had not confirmed her availability to work in adequate time. Management could not wait until the day before to confirm staffing arrangements as this would be detrimental to the residents who we care for.

  To clarify these shifts were not offered to other staff the week after the claimant alleges she was dismissed. Ms.L is responsible for ensuring safe staffing during the day and night and to ensure no detriment to the residents. Generally staffing arrangements are finalised 2 weeks in advance, to enable staff to plan ahead. There is no obligation on the HSE to provide ongoing work for the claimant.

 21st November, 2022 -  The manager of a   community home in Sligo , has confirmed that the claimant  was booked to work the night of the 21st November, 2022 in no.19 Markievicz on the planned roster - the claimant  accepted the shift on Locumlink. However, she did not report for duty. The night manager had to arrange cover on the night resulting in day staff staying on later than rostered.  All direct HSE staff are required to work a 7 over 7 roster and work a mix of day and night shifts on a rotational basis. The premise of an agency contract is that the agency worker is assigned to different locations as needs arise. There is no definite fixed location of employment assigned. It is an unrealistic expectation of the claimant’s claim to be ‘reinstated’ as this is outside the control of an employment agency to request work in this way with their clients.

 Conclusion

As evidenced today, it can be clearly seen that there was no unfair treatment of the claimant . With regard to the substance of the complaint under consideration, the employer asserts that -  Management were justified and acted reasonably in terms of arranging staffing needs in advance to ensure service needs were met -  the claimant  was offered alternative day shifts by Ms.L to which she declined on the 18th November, 2022. The claimant  applied and accepted a shift at no.19 Markievicz Heights, Sligo, however, she did not arrive  to work same .Any loss of earnings for the claimant  were as a result of her own actions –

 The HSE has no knowledge of alternative clients / work opportunities that  Locumlink Healthcare offered her .

 The HSE has no visibility of the claimant working after this period or of her choosing not to take up work offered to her from Locumlink.

Locumlink confirmed the claimant’s continued employment via email in February 2023.

The claimant continues to be employed by Locumlink and is currently working at St.J’s Community Hospital- approx. 39 hours per week.

On that basis , the conclusion must be that the complaint is misconceived and should be dismissed.

On the 15th.Jan. 2025 ,the respondent  responded to  post hearing submissions from the claimant side which were received on the 9th.Jan. 2025.The response is set out below :

RE:

1) Screenshots of Emails with  Director of Nursing

The DON  had advised  the claimant  correctly re:

o use of agency staff,

o rotation of day and night shift required

o the agency as your employer were her first port of call

The claimant  advised in her email to the DON  that Ms.L – her line manager  “cancelled all her shifts that week” and also that Ms.L has “told me she has no work for me anymore, it’s coming up to Christmas and now I have no job”.

The above is factually incorrect. Ms.L assigned the claimant to day duty. Management also advised  the claimant  that she could complete some of her mandatory training during this time.

The claimant declined this offer of work.

The claimant  was not advised that she would never return to night duty, she was offered day shifts that week as she hadn’t made contact with Ms.L in advance to her advice of her return.

At the WRC hearing, it was outlined that  the claimant  had informed Ms.L that she was unable to work due to her daughter not been well.

Following this, Ms.L had made attempts to contact the claimant  to establish when she would return to work as Ms.L had not heard from her in advance of the roster issuing.

Ms.L is responsible for organising staff to ensure the service users are cared for and could not assume the claimant would return as she had not contacted management.

RE:

2) Proof of Payment from DSP. This was received during the month of December.

Complainant states; The Complainant did not apply for work nor was she offered any work between the 6th of November 2022 and the 1st of January 2023.



 As evidenced and referenced in the HSE submission,  the claimant  was booked to work the night of the 21st November, 2022 in no.19 Markievicz on the planned roster.

 The claimant accepted the shift on Locumlink. However,  the claimant  did not report for duty. The night manager had to arrange cover on the night resulting in day staff staying on later than rostered.

 The claimant  confirmed at the WRC hearing that she continued to receive job offer/updates from her employer Locum Link, however, she choose not to accept until the offer of a placement at St.J’s Community Hospital was shared – where she currently works both day and night shifts as required.

Complainant states; Due to financial stress, the Complainant started working in St Johns in Sligo on the 1st of January 2023 and is still a current employee there.



To confirm, the claimant  is not an employee of St.J’s Community Hospital .The claimant  continues to work for Locum Link who advise her of work opportunities.

 The claimant  was not dismissed as alleged.

Finally,  the respondent’s representative  referenced  to the following attached  WRC decisions :

ADJ - 00019906

ADJ - 00016594

Summary of Pertinent Evidence of Claimant’s Line Manager:

The witness summarised the claimant’s shift pattern and set out a chronology of the events leading up to the alleged dismissal. She said when the claimant advised that she would be unable to work on the 7th.Nov. 2022 , last minutes arrangements had to be put in place to cover her shift. She said the claimant did not make contact over the remainder of that week and she – the line manager was obliged to ensure shifts were covered to ensure continuity of service for the residents. When the claimant made contact with her the following Tuesday to say she was available for work  , the witness told her that the week was covered. The claimant told her she did not ring in on the 7th.November because she knew from the text message that the witness had read it because it had 2 X ticks beside it on the screen. The witness said  the claimant was obliged to ring in  and that notice was required – she said the text message had been unclear and did not refer to the shift on the 8th.November. The witness said she had tried to contact the claimant – she did not want to leave the upcoming week uncovered or leave it until the last minute. The witness said that the claimant called her on  the 17th.November and apologised .The witness suggested that they meet and a meeting was arranged for the following day.

The witness said the employee was required to phone in and give notice and that she advised the claimant that it was not the responsibility to follow up on very employee .The witness said she offered the claimant a line of day shifts going forward – during which the claimant could  be facilitated with mandatory training which had been outstanding. The witness denied that she ever told the claimant that she had no work for her. The witness said there was no reason for a dismissal  and it was never her intention to dismiss the claimant. The witness set out the electronic arrangements for offering shifts via the agency locum link. The claimant apologised for the text message she had sent and said she was mad at the time. When the witness offered the claimant full time work on days, the claimant said this was discrimination and left the meeting stating  that she would be contacting the Director of Nursing (DON) about it.

Under cross examination the witness advised that she offered the claimant day shifts as there were mandatory training modules outstanding. When asked if she wrote to the claimant the witness said no  – she offered the training at  the meeting. When asked if there was a procedure to be followed when there was disagreement , the witness said she had not had to use the procedures.

The witness denied that she told the claimant she was not giving her hours, the witness said a full  line of day shifts was offered. The witness was asked why she offered days when she knew the claimant was a single Mum. The witness said she heard nothing further from the claimant after the meeting. The witness said that if problems arise they are referred to the agency. The witness said that she had tried to contact the claimant a number of times after Nov. 7 but was unable to reach her – the witness said it was not up to her to go following employees around. The  claimant’s representative  said that the claimant would deny being offered day shifts. The witness said mandatory training was outstanding with respect to challenging behaviour and emergency medication.

In summing up the respondent’s representative asserted that the respondent had acted reasonably at all times with the claimant .The claimant was offered day shifts which she declined. There was no justification for a discussion about training if work was ceasing. The claimant had accepted the offer of a night  shift on the 21st.Nov. 2022 but did not report for duty. The claimant was offered a placement at St.J’s Community Hospital where she works day and night shifts as required .It was submitted that any losses incurred by the claimant were as a result of her own actions and that the complaint of unfair dismissal should be dismissed.

I have reviewed the evidence presented at the hearing and noted the submissions of the respective  parties .I note that the claimant continued to be assigned shifts from January 2023 and continues to work day and night shifts at St.J’s. .I further note that there is no documentary evidence of a dismissal having taken place .I  note that while the claimant alleged that nobody in management replied to her calls for assistance , her own post hearing submissions contain evidence that the Director of Nursing did reply to her email of the 21st.November 2022.The claimant and Ms.L have given polarised accounts of their exchanges at the meeting on the 18th.November 2022.It is not disputed by the parties that the matter of training was discussed at the meeting. I note that in her complaint from to the WRC the claimant makes no reference  to the adequacy or otherwise of training  being raised at the alleged dismissal  meeting and that  in her evidence the claimant asserted  that Ms.L told her that she was being dismissed as  she was not trained enough to work.I accept the respondent’s contention that the subject matter of facilitating training on outstanding modules would be  unlikely to be raised at a dismissal meeting where termination of employment was being contemplated. In light of all of the foregoing , I find Ms.L’s account of the meeting to be more credible than the claimant’s version of events and I must conclude that no dismissal took place.

I find the complaint of unfair dismissal is not well founded .