ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00053995
Parties:
| Complainant | Respondent |
Parties | Dermot McLoughlin | Hse West |
Representatives | Martina Weir SIPTU | Paul Hume Interim Head of HR |
Complaint(s):
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-00065880-001 | 10/09/2024 |
Date of Adjudication Hearing: 27/01/2025
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Act , 1977 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The claimant submitted he was dismissed without due process , without regard to natural justice and in breach of the respondent’s disciplinary procedure .It was advanced that the dismissal was consequently unfair. The respondent denied the allegation of unfair dismissal and while acknowledging some deficits with regard to timelines submitted that the claimant was dismissed for failing to pass his probation and that consequently , the dismissal was fair. |
Summary of Complainant’s Case:
The claimant’s representative submitted as follows : Introduction 1. This case is taken by SIPTU on behalf of the Complainant against his employer the Respondent 2. The complainant was issued with a letter from HR, dated 30 August 2024, advising of the termination of his contract of employment from 1 September 2024. 3. The Complainant is challenging this decision which was, according to the letter, based on unsuccessful probationary reviews. 4. He is at this stage seeking reinstatement, so that he can return to his hometown to work, and see his child every day, as opposed to only at weekends. Background to this Case: 5. The Complainant has been employed by as a Domestic Ward Attendant (ECCS3445) commencing on 14 August 2023 with his employment being terminated 1 September 2024, which gives him the 12 months service required under Section 8 of the Unfair Dismissals Act1977. 6. His normal hours of work were 39 hours per week, and he was at the time of his dismissal, at point 2 of the respondent’s salary scale – €32,347.00 Gross per annum. 7. He worked over three shifts, on a two-week rotational basis, i.e. 8am to 4pm/4pm to 12 midnight/ 12 midnight to 8am and he reported to the Support Services Manager. 8. An unsocial premium was paid to him for the evening hours – (time plus 1/6th) and night time hours (time plus ¼). 9. He currently has no access to his payslips but recalls that his average weekly net pay was approx. €675.00n 10. His written contract of employment advised of a probationary period of one-year, successful completion of which, would lead to permanent appointment. 11. He was subject to formal probationary reviews on 9 May 2024 and again on 12 August 2024, but he disputes the notes of these. Case History: 12. The Complainants job was to maintain a clean environment at his work location. 13. He had undergone two probationary reviews by the time he was dismissed, each noting areas of improvement required, with the last of these [12.08.2024] advising that “ongoing monitoring of work quality will be undertaken”. 14. He says that much of what was raised with him in these reviews related back to his first three months working, and that he had addressed the majority of these early issues at the time these reviews took place. 15. There was nothing in the reports to suggest that the complainant’s job might be at risk if he failed to improve to a specific level, within a certain timeframe. 16. A separate report was it seems compiled by a supervisor on the same date, which noted concerns, but this was not provided to him until later. 17. The HR Manager sought a meeting with the Complainant to discuss the outcome of the probationary review, and this took place on 30 August 2024, at which point the letter of dismissal issued, and a prepared Leaving Form , confirming his dismissal, was presented to the complainant for signature. The Case: 18. The complainants 12-month probationary period commenced on 14 August 2023 and ended on 13 August 2024. 19. There was no extension past the 13 August 2024, and the probationary report dated 12 August 2024 made no mention of any potential threat to the complainant’s job. 20. Therefore, the complainant had completed his probationary period on the date of termination of his employment . 21. The Complainant was therefore dismissed by the respondent without reference to the provisions of Disciplinary policy. 22. The policy provides for an Informal Pre-Procedure - Informal Counselling Stage and a Formal Process which consists of Stages 1 to 4. 23. Further to this there is an Appeals stage, which allows an employee lodge an internal appeal, of any decision to terminate their employment. 24. The complainant was deprived of the right to the provisions of the Disciplinary procedure, in particular the right to an internal appeal. 25. The Respondent cannot claim protection under a probationary clause which is no longer valid and outside of the timeframes aligned to it. 26. The relevant process in this case is contained within the normal Disciplinary procedures, with each stage being utilised before any decision is taken to dismiss. 27. In short, the Employer has ignored, set aside and failed to operate within, their own disciplinary procedures. 28. This is a fundamental breach, and if this goes unchecked, and all sides were to disregard the recognised Industrial Relations structures in place, then it could lead to major industrial unrest. 29. The respondent must be instructed to adhere to the agreed policies and procedures. 30. We have too often over recent months found ourselves having to take this employer before Adjudication Officers for similar breaches, it cannot be allowed to continue with impunity. 31. We are therefore seeking a favourable decision in this case.
Mitigation: 32. The cliamant had been approved for parental leave before being dismissed from his job. 33. This was arranged for period 02/09/2024 to 06/10/2024. 34. He attempted to change this after he was dismissed but says the Department of Social Protection advised that once approved this could not be changed. 35. Through no fault of his own he was unable to take up work during this five-week period. 36. He nevertheless made applications for work during this time and was almost immediately successful in attaining a job with Company X which he commenced on 9 October 2024, and where he remains. Loss: 37. The claimant was paid up to 2 September 2024 and from then on was reliant on the €274 per week Parents Benefit payment from DSP. 38. His net weekly salary at the time of dismissal, . would have been €675.00pw, therefore, his loss, less DSP, would be €675.00 x 5.5 weeks = €3,701.50 39. The difference between his current salary [€481.00n p/w] and his former job [€675.00 p/w] would amount to €194.00net per week x 16 weeks = €3,104.00 40. He now has additional travel expenses of approx. €40 per week x 16 weeks = €0,640.00 41. His total, quantifiable, gross loss would therefore be: €7445.50 42. However, future pension benefits and rights under the Redundancy Payments Acts, are also lost to him.
Redress: 43. Based on the travelling expenses, and the lesser terms and conditions of his new job, the complainant would like to be reinstated to his position and trusts that if he is granted this by decision of the WRC, he will not find himself penalised in any way by the respondent’s management, for his successful challenge to the unfair decision to dismiss him.
The claimant gave evidence of his interactions with his line managers – he disputed their accounts of the probation review meetings and challenged their assertions regarding deficits in performance.
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Summary of Respondent’s Case:
The respondent’s representative submitted as follows :
The claimant was employed in Location Y as a Domestic Attendant 14/08/2023 – 02/09/2024. He was assigned to the Household Department during his employment. His contract was terminated due to his unsuccessful probation.
2.0 Background of the Case
2.1 The claimant was successful at interview for a Domestic Attendant role and placed on the panel for following a Recruitment Campaign. He was offered a permanent post and he was hired 14/08/2023. All of the respondent’s employees are required to complete a 12 month successful probationary period.
2.2 The claimant’s Probation Appraisal Report 7/5/24 outlines ‘Point 3 Standard of Performance’:
‘Standard of work needs to improve, you need to engage more while carrying out his duties around staff and patients by going in and around patients in order to do your duties properly. You need to be able to work on your own initiative and be responsible for your area of work’.
‘Point 5 Areas Where Improvement Is Necessary (as discussed with the employee):
‘Noted carrying bottles in pockets around on the ward. He needs to do his work as trained’. Please note there is further improvements outlined in the full report. Please note the bottles referred to were chemical cleaning bottles.
2.3 The second probation appraisal was carried out 12/8/24 (Appendix 2). ‘Point 3 Standards of Performance’, outlines:
‘Concerns were highlighted at the last appraisal 7th may, that standards needed to improve significantly, unfortunately concerns are ongoing regarding his standard of performance. Deficits that have been mentioned have not improved.’
‘Point 5 Areas where improvement is necessary (as discussed with the employee)’ outlines’:
‘Quality of work needs to improve. He needs to improve his standard of work attention to detail, standard of cleaning, compliance of filling out checklists, ensuring areas meet the proper requirements of cleaning as set out per all depts.’
‘Point 7 General Comments’:
‘All supervisors have concerns with the claimant’s standard of work which is not acceptable in very busy environments. All staff need to work on their own initiative.’
2.4 The Household Supervisors Report 12/8/24 outlines:
‘The claimant has worked in the eye clinic and eye ward on evenings. It has been observed by all supervisors that the standard of work falls short of what is expected within the Household Dept. Floors not clean, ledges dusty, attention to detail not observed in most areas. Fluff on floors and behind doors. Checklist book not filled in. HMC door left open and dirty mops left for a weekend in the HMC door left for a weekend in the HMC’.
There is further information regarding a complaint for medical records outlined in Appendix 3. The Household Supervisors have stated the standard of work was not acceptable. Unfortunately due to the ongoing unacceptable standard of work the probation was deemed unsuccessful.
2.5 Please note as the respondent’s contracts outline ‘Confirmation of your appointment as a permanent member of staff is subject to the successful completion of the probation period’ (Appendix 4). Unfortunately the claimant’s probation was deemed unsuccessful and therefore his contract was terminated.
2.6 The Head of Human Resources , held a meeting with the claimant to outline his probation period was unfortunately unsuccessful and therefore his contract was terminated.
2.7 A letter was issued from HR to the claimant 30/08/2024 (Appendix 5), outlining ‘Notice of Termination of Employment Contract’. The letter stated ‘the terms of your employment contract will cease from Sunday September 1st 2024. The respondent will pay you 2 weeks in lieu of working your notice period and any accrued annual leave entitlements’.
2.8 The training records outlines:
‘Ongoing support and direction was provided to the claimant trying to reinforce learning and provide direction on necessary improvements to complete his duties and meet HIQA environmental cleaning hygiene standards. Deficits and areas for improvement were discussed on multiple occasions by supervisors. The claimant was rostered in the main working alongside experienced staff on wards rather than working on his own due to concerns regarding poor standards of his work. Despite the above and supports provided the claimant , did not take on board advice given and he failed to make the required improvements and to reach the required standards. Concerns and observations regarding his manner to patients and staff were noted to him by supervisors and from audits, and complaints received by staff regarding poor standards of cleaning.’
As outlined above the claimant was provided with ongoing support and training however the necessary improvements did not occur. There was also concerns raised regarding his manner to patients and staff.
2.9 The respondent’s management note there was a delay scheduling the final probation meeting / issuing the termination of contract letter. Management however deemed the probation period unsuccessful due to concerns highlighted to the claimant on several occasions. As the Domestic Supervisor did not see improvements regarding concerns raised the contract of employment was terminated.
Respondent’s
The employer is clear the probation of the employee was unfortunately unsuccessful. The employer accepts there was a delay scheduling a meeting with the employee to advise of the termination of contract and accepts this was outside of the timelines.
In light of the above, I request the Adjudicator to reject the request to reinstate the claimant to his previous position at the Hospital.
Findings and Conclusions:
I have reviewed the submissions of the parties and taken on board the evidence presented at the hearing.I accept the claimant’s contention that he was dismissed without reference to natural justice or fair procedures and I further accept that the respondent was in breach of their own escalating disciplinary procedures when they effected his dismissal. Matters were exacerbated by the delays in the undertaking of probation apraisals. I find that the claimant’s dismissal was procedurally unfair and consequently , I am upholding the complaint. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
In all of the circumstances I do not find reinstatement to be an appropriate remedy.I require the respondent to pay the claimant €8,000 compensation for his unfair dismissal. |
Dated: 24/02/2025
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Key Words:
Non adherence to procedures/ breach of natural justice / delayed compliance with time lines |