Complainant

Respondent

Anonymised Parties

An Employee

An Employer

Representatives

Miriam Mcgillycuddy Miriam McGillycuddy, Elaine Holihan BL

Michelle Ní Longáin Byrne Wallace Solicitors, Kiwana Ennis BL

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act

CA-00061288-001

30/01/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00061288-002

30/01/2024

The Complainant withdrew complaint CA 0061288 -002 .

CA 00 61288-001:

At the beginning of 2023 the worker was working in XX Public libraries as an Executive Librarian. She became aware of a particular post. She was drawn to it because she was felt it was a very progressive career defining position and would enhance her career.  It was in an area of open resources and she had a strong interest in that area. She was aware it was a fixed term contract. The role was indicated to be the first OER role (open education resource) in Ireland. She was meant to be the first specialist full time OER position holder in the Country. She was very excited about that. The funding came from the national form for teaching and education from the Department of Further Education. She was paid by TUS but there were a few different stake holders.

The duties set out in the job spec were :

“The successful candidate will demonstrate an enthusiasm for the evolving nature of Open Educational Practices, for collaborative work in the domain of Educational Resources and the ongoing development of library learning programmes, including alignment with the wider organisation. This position offers an ambitious and motivated individual the opportunity to shape and evolve all stakeholder skills in Open Education and how it relates to equity and access to Higher Education and wide, varied and high-quality resources. There will be opportunities for training specific to this post and also in related areas to support the overall work of the Library. The appointee will carry out such duties as are assigned including but not limited to the following: 

·        Support and contribute to the current library OER project including maintenance of the OER index, Open textbooks libguide and open courses index,

·        Provide leadership, vision, support and assessment of OER services for TUS.

·        Work collaboratively to guide faculty in the discovery, creation, dissemination, identification, adoption and assessment of high quality open and affordable course content.

·         Advocate for and promote OER to all stakeholders (faculty, students, PMSS, administrators).

·         Advocate for open (Creative Commons) licensing of locally created works.

·         Assess current state of institutional OER use and knowledge, to identify necessary steps to    encourage OER use and develop appropriate support.

·         Create OER-related instructional resources, including webpages, tutorials, and workshops on open and affordable course content.

·        Lead a collaborative OER project with partner HEIs.

·        Provide faculty with the necessary training and support.

·        Provide OER research consultations with subject-discipline faculty.

·        Develop and coordinate initiatives and services designed to support finding, assessing, using and creating OER.

·        Develop strategic partnerships with various campus stakeholders and work closely with them to both promote the use of OER and to support their integration into the curriculum.

·        Engage in OER related planning and outreach efforts, including leading workshops, webinars and related events focused on OER and related topics such as OEP and open pedagogy .

·        Develop methods and documentation for assessing and reporting progress in adopting OER and the library’s role in supporting and promoting their use. 

·        Increase the number of programmes that utilize OER in lieu of commercial textbooks 

·        Keep abreast of the current trends, latest developments and best practices related to OER including open licensing.

·        Participate in relevant internal and external committees.

·        Work closely with the Deputy librarian/Open Education librarian for the selection of OER for addition to the library collections and ensuring access to materials.

·        Develop and maintain relationships with peers in similar institutions and roles.

·        Make a positive contribution to all aspects of the library service and advocate for the range of skills, services and expertise of the library team.

·        Any other duties that may be identified by the Deputy Librarian/Open Education Librarian/Head Librarian.

She understood it was a specialised role focusing on open educational reassures duties. She agreed in cross examination that she was expected to carry out “any other duties” but she limited that to any other duties within the OER role. It was accepted it is a Grade 6 role. The Respondent argued that all Grade 6 Librarian carry out functions within the actual library. The worker, prior to applying for the role, spoke to Librarians in Ireland and in the UK about what specialised Librarian do and she was informed that they did not do general on-site Librarian duties.  She stated that nobody from TUS told her that until June 2023.  In June she was asked to do desk cover work in the library. If that had been part of their contractual role she would not have applied for the job. The Complainant denied that she did any desk cover training in April and May. She was not in a position to say whether or not other Grade 6 specialist librarians did desk cover.   

The difference between the open education role and an OED was that the OED only focuses on educational resources with some research and learning. The ordinary Librarian role does not focus on that.

Following her application and interview, she was successful and was offered a contract of employment. She signed the contract 27.02.2023. It was also signed by LY for the Respondent. She commenced on the 23. 02 2023. It was a full time, specified role. Her hours of work were 35 hours per week with one hour, unpaid lunch each day. Before she applied, she emailed asking if the role would be hybrid or onsite. Hybrid was essential for her. She was informed it was hybrid. When she started, there was a great deal of flexibility. For the month of April she worked remotely. There was no issue with that. She was on site on certain days for specific reasons. Her hours on site were shorter to allow her get a particular train home. Onsite she started at 9.10 approximately. On the odd occasion she would get the early train and would start just after 7am. She would get the 15.15 train home. She made up the hours the next day if she left early. Her probation period expired after 3 months on the 3rd August as per her contract of employment.

In April she carried out a review of documents. She wrote an OER survey, she worked on a research ethics application and general OER related topics. She attended seminars also. She did not have weekly meetings in April or May. She a few meetings but nothing structured.

In June she had a meeting with NG. She was asked to attend a conference at the start of June. She worked on a presentation. Then she was told she wasn’t going. It changed again close to the date and she was told she was going. She did attend and presented her paper. In mid- June she was given a list of duties in an email dated the 22nd June 2023. These are set out at appendix 4 of the Complainant’s submissions.  That list came about when the deputy head librarian, CN was off. She has set out a list of duties for the worker to cover. They had a meeting about it. This list was extensive. During cross examination the Complainant denied that CN discussed her work quality with her and explained that her work was not up to standard. She approached each of the tasks by deadline. She did get it all done but it was hard work. Despite that, there was no feedback on her performance. She assumed they were all happy with her work.

30th June 2023 she was called into a meeting with JD. It was in person.  It was not a feedback meeting. It was really just a discussion. There was noting negative discussed in the meeting. It really was just a general discussion. No deadlines were identified to her. At that stage must of the work had been done and some of it just needed to be refined. The Respondent argued that this was far from the reality. Many issues were discussed, and specific issues were outlined to her and some of work was deemed unacceptable. Also, tools/templates were developed for her in relation to info graphics and she never used them either. The Complainant argued that she never saw the template before filing her complaint with the WRC.

In early July additional work was allocated to her They were desk duties. She was assigned to the desk at the library.  She had to be there half an hour before to open up and boot up all the computers etc. She had to man the desk, logbooks in and out, do walk around of the library to check footfall and do the live chat. The Respondent argued that the workload in the library was very limited. The Complainant did not agree stating that whilst it was not an onerous role, she was still required to be there and do what was expected of her. The Respondent sated that she was given training for the desk role when she started. The Worker denied that stating that she was only given a tour of the library. She could not leave until 5pm as two people were required to be on the floor of the library at all times. This was not in her job specification, but she did not feel that she had a choice as she was still on probation. She had not been assigned desk duties up to this point. She had been carrying out her OER duties as per her contract. CN asked her to fill these duties as there was a staff shortage. During this time, it was very difficult to concentrate on her list of tasks given to her on 22nd June because there were constant interruptions while she was on the floor of the library.

The deadline for no. 4 and 5 on the list was on the 31st of July.  She had no meetings in relation to performance feedback in July at all.

The deadline for no. 6 – 11 was 30th August. On 30th August the worker had an uncertified sick day. The night before she was up all night with a stomach bug. She remained in bed most of the next day. She obviously had not planned to be unwell.  During that time, while she was working through the list, she was working 50 -55 hrs per week trying to get the tasks completed.

The Respondent stated that the Complainant never submitted any work at all, had not completed the tasks assigned to her. The Complainant asked if that was the case why nobody spoke to her about it prior to the dismissal meeting. The Respondent stated that she was spoken to several times during her probationary period.

31st August there was a meeting with the workers and the head librarian JD. The Respondent stated that there was a meeting on 10th August but that is not correct. The worker checked her diary and train schedule etc and she is certain there was not meeting. The meeting on the 31st was called a “wrap up” meeting in the meeting notes. It was in person. She thought it was going to be a feedback meeting up it was not.  During the meeting the checklist was focused on. Despite what the Respondent said about a conversation about her work standards not being acceptable the Complainant states that nothing negative was said. She felt it was a constructive meeting. She wasn’t told at the meeting she hadn’t completed any tasks. She didn’t expect that she would because everything was done either entirely or in draft form. She did have to do extra work at home to finish the tasks because she was on desk duty and couldn’t do it during the day. At that time, she was doing about 50 hours per week. She was not given minutes of that meeting.

1st of September she was on site that day. There was no mention of her timekeeping or anything like that. She left early as there were two others on the floor. She was back on site on the 4th September.

A meeting was scheduled for the 6th September. She was not given the agenda. She assumed it was the about the OER as her probationary period had passed and there was no negative feedback during her time there. At the meeting CN and JD were present.  She was informed that her time keeping was an issue. She was told if she wanted to leave early, she needed to get permission from the head or deputy head librarian. Nobody had said anything about her leaving early prior to that. They also discussed the library chat. During her time there nobody logged any chats. She did ask about it, but she was told that nothing ever really happens during the summer. That particular day prior to the meeting she noticed that her live chat was not on line. She checked and noted that her administrative rights had been changed. She did not know by who. The fact that it wasn’t online was brought up at the meeting as a negative thing. Then the conversation turned to probation. JD said that her work was not up to scratch and she was giving her one weeks’ notice. She said your probation period is four to six months and she had not passed it. The worker said her contract was four months probation and that time had passed. JD said she had spoken to HR and it “was all sorted”. CN said it was a very important job and she wasn’t taking it seriously. Then she said that they could collaborate on future projects. That didn’t make sense to the worker. She was very shocked and started to shake. It had never happened before. She  got the meeting notes via freedom of information. Therein it set out the issues with her employment. A lot of this was never discussed with her at all even at the meeting in September.  These notes were not sent to her at the time to review and sign.

Initially she was so shocked. She felt sick. She could not sleep. It still makes her feel sick when she thinks about it. She had to get on with it and try and find a job as she has a mortgage. She applied for over 220 jobs for all levels. She isn’t even getting interviews. That has never happened before. For every five jobs she would apply for would get one or two interviews. Something has happened because she isn’t even getting any interviews. She managed to get two short terms contracts for the UN.  It was only for two months and was low pay but it was a very positive experience. She is still looking for work. She has started to focus outside of Ireland.

CN:

CN stated that XX has six campuses and approximately 40,000 students. They are one library with six different branches. The OER role was open educational role librarian role. External funding was secured for the post. The aim of the project was to try and assert awareness. The post was a grade 6. That is a professional grade. We have to have a professional qualification. You would need a Masters. The Complainant had a Doctorate in history but not in relation to the Librarian role. She was however very experienced. Clause 9 of the contract states she would work 39 hours per week 9-5 Monday to Friday. Attendance was required from time to time outside of those hours. The Complainant did say she worked 50 – 55 hrs per week. That is not correct. She worked 35 hrs. Nobody worked more than 35 hours. For the first two month she was allowed to work from home so that she could get up to speed with the project. When someone was on the 5pm cover you had to stay at the desk. All other days she could go early. Everyone worked flexi time.  Her probationary period was four months. CN concedes that probationary reviews were not done during her probationary period and that her contract requires that. CN had a template to fill out at the end of the probationary period. She did that with JD but the Complainant was not shown it and she did not sign it.  The report was read out to the Complainant. This was on the 6th September, the same day as the meeting. It is conceded that it has not been included in the hearing papers.

This role was the first of its type of Ireland. The role did require interaction with the users/stakeholders. During the interview it was made very clear what all of the duties were. One of those was interaction with the stakeholders and users. The whole purpose was to promote awareness. The Complainant was trained in that area and was fully aware she was required to interact with users. It is incomprehensible that she thought she did not have to interact with students at the desk. The Complainant said that she just got a half an hour walk around the desk as her training. That is not correct. One the first day she did a walk around. However, when she started, she was formally trained on the desk. When she had completed her training CN was informed.  She did carry out the role. During the summer there are not many students so that part of the role wasn’t too arduous.

The live chat duty- with the hybrid system, on average you would be on chat duty once or twice a week. That is usually done from home. The interaction is live. When logged in you can see the chat as it pops up. If there is a query you can’t answer immediately you have to open up a ticket, find the answer and then go back to the user via the ticket number. There were days when the Complainant was supposed to be rostered on the live chat. She didn’t even log in on those days.  During the summer there isn’t much chat as the students are off. However, you still have to log in in case there are any queries.

From April 2023 we had a lot of meetings mainly to discuss projects that the team were working on. Those meetings are daily. They are informal in nature. CN had concerns from the outset.  There were issues with emails she was asked to draft. She had no initiative. She would arrive to meetings with not even a pen. She had no content to discuss. On the 22nd June we had a meeting about her tasks. There were 11 tasks. That meeting was over an hour long.  A lot of the tasks could have been done in an hour. Some would take a few weeks. She was given until the end of July. That was six weeks. It was very doable. After the 22nd June meeting CN went out on leave until 6th September. Before she went, she sent an email to the Complainant setting out a summary of the meeting in relation to her tasks. CN conceded that she did not address her concerns about the Complainant’s lack of performance in that email

The Complainant stated that she did not get any feedback. That is not correct. She was given constant feedback.

In mid-August CN came back. Nothing had been presented. CN and JD had a meeting with her on the 6th September. The email stated that it was a review meeting. Later the probationary period review was added. CN was not aware that she was out of probation. She thought she had a six month probation meeting. She was informed by HR at six months to have the probation meeting.  At no time did HR inform her that her probation period was four months and not six months. It is conceded that there was no performance meeting with her prior to her exit meeting on the 6th September. It is also conceded that due to the error the disciplinary process was not invoked. In any event she was asked at the meeting why the work was not done. She said, once the deadline had passed so she moved onto something else. Out of the 11 tasks nothing had been produced in relation to any of them. At the end of that meeting her employment was terminated. A few hours later she was disconnected from the server. It is conceded that the email of the 7th does not set out the reasons for the termination. It is also conceded that the template form for the meeting is dated and signed the 1st September, five days prior to the meeting in circumstances where CN was out on leave from 22nd June to the end of August and was not present to assess the Complainant.

 One the Complainant had moved on we did not discuss her performance with anyone. Even today the staff don’t know that CN is giving evidence in her case or even that she brought a case. The Complainant did not look for a reference, so none was provided.

JD:

JD was the head librarian at the time. Since then, she has moved to Sligo and is in a permanent role. During the interview with the Complainant she was shown a presentation I relation to the role and then she was interviewed and at the end she was able to ask question. It was very clear that this was a grade 6 specialist role. JD’s expectation was that the Complainant would lead the library within that area. She was the point of contact within that area.

Prior to the meeting on the 30th, CN went through all of the tasks with the Complainant. She was given a template to fill out. When that document was presented, it was clear that it had been cut and pasted in from another colleges policy. That was alarming.  The quality of the document was very poor. JD had to give her basic guidance on how to present documents.  One of the other tasks was to put together a list of what the infographics were going to be. That was a one page document and she have been easy for someone who has worked in this area. That wasn’t even done. JD also expected that her work was available in a folder for her to review. That wasn’t done either.

On 10th August there was a meeting again. This was a casual check in. Prior to the meeting JD checked what was in the folder. She was extremely concerned what was there. It looked like she had just cut and paste in google images. There are no notes of this meeting. It was actually her job to take notes at meetings but she never did. JD showed her examples of what was expected. She actually showed her how to do it. She was asked to focus on the content. She was informed that four infographics were needed. They were never produced.  That tool was never opened again. The Complainant said that she never got that template. That is not true. However, she didn’t actually need a template.

On 31st August there was another meeting. CN was due to meet her on the 30th but she called in sick that day. JD said that she would meet with her on the 31st, hoping that at that stage the work would be done. All of the deadlines had passed at this stage. She reminder her “You have to take it seriously, deliver on your work and you have to show your work”. She had the skills and the timing was very generous but still she hadn’t produced anything. JD tried everything and even streamlined the work load in terms of tasks but it didn’t produce a result.  We could see that she didn’t even log into the product in relation to one of the tasks. There could be no doubt in her mind what the issues were.  It was all set out for her.

The next meeting was on the 6th September and it was triggered HR thinking she was due her six months review. JD made notes on the morning of the meeting in preparation for the meeting. The hope was that the Complainant would arrive at the meeting with all of her tasks completed.  She didn’t. She didn’t even bring a pen and a piece of paper. It is conceded that the Complainant was not given a copy of any notes. She was asked again why the work was not done. She did mention other work that she had to do during the summer. She did not do any live chat at all. We could see that she hadn’t logged in at all. The only time she was away from her desk was when she was at the library desk. That was a very small amount of time in the grand scheme of things. She was then informed that her employment was being terminated. She went to her desk to tidy up. JD did walk out with her to make sure she was ok. She asked her if she wanted her to call her a taxi or walk up the town to the train station with her. That was done out of compassion. She was not escorted off the premises.

Since she left JD has not received any reference requests for her.  

Much of this evidence was in conflict between the parties. I have taken the time to carefully review all the evidence both written and oral.  I have noted the respective positions of the parties.   I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held “…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties under statute.  I can confirm I have fulfilled my obligation to make all relevant inquiries into this dispute.

The Complainant began her employment with the Respondent in April 2023. Her contract clearly states that there was a four-month probationary period. It would seem that Respondent had recently reduced its standard probationary period from six months to four months, but this change was not updated on their HR system leaving CN and JD in the dark in relation to it.  Consequently, the Complainant’s probationary review meeting did not occur until after her probationary period had expired. Despite this, CN and JD continued to treat the Complainant as if she were still under probation, which she clearly was not. The knock-on effect of this was that the Respondent did not invoke the disciplinary process in relation to her alleged poor performance issues. This in turn led to clear and unambiguous breaches of the Complainant’s rights to fair procedures and nature justice. Her employment was terminated without any process at all being followed. She was given no prior notice of the risk of termination, no notice of the alleged poor performance, no notice of what turned out to be the termination meeting’s agenda, no documentation of any type, no right to defend herself, no right to have representation and no right of appeal.  CN conceded under cross examination that no performance reviews were carried out prior to her termination. Furthermore, taking it account that CN was on leave for a large portion of the Complainant’s employment, late June to late August it is baffling how she could have formed an accurate opinion on her performance to the extend that she could have completed at performance review form on 1st September. That was only five days before her employment was terminated. The closest thing to a performance review was set out by JD when she stated that they had general discussions at meetings about what the Complainant was or was not doing but admitted that nothing was ever put in writing and certainly nothing close to a PIP was ever created.

While I find that the Complainant did contribute to her termination e.g. in failing to complete tasks or log onto live chats when she was supposed to, she was entitled to fair procedures and they included the right to be informed of the allegations being made against her, the right to defend those allegations, the right to be represented and the right to appeal the decision to terminate her employment. The Respondent conceded that these rights were not provided.

In light of these findings, I make the following recommendations:

1. The Respondent shall pay the Complainant €4,000.00 in compensation by 11th April 2025.
2. The Respondent shall pay the sum of €2,500.00 towards the Complainant’s towards the Complainant’s legal costs on or before the 11th April 2025.
3. The Respondent shall provide the Complainant with a meaningful reference upon her request.
4. The Respondent shall review the contracts of all current employees in their probationary periods to ensure clarity regarding the end dates of their probationary periods.

.  

1.        The Respondent shall pay the Complainant €4,000.00 in compensation by 11th April  2025.

2.        The Respondent shall pay the sum of €2,500.00 towards the Complainant’s towards the Complainant’s legal costs on or before the 11th April 2025.

3.        The Respondent shall provide the Complainant with a meaningful reference upon her request.

4.        The Respondent shall review the contracts of all current employees in their probationary periods to ensure clarity regarding the end dates of their probationary periods.

Probation Period. Fair Procedure, Due process, Right of Appeal. Rights to Defend. Right of be informed. Termination. Poor Performance.