ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00010011
A Childcare Assistant
A Childcare Provider
Thomas O'Connor National Bus & Rail Union
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 19/12/2017
Workplace Relations Commission Adjudication Officer: Roger McGrath
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The complainant, a childcare assistant, commenced employment with the respondent, a child care provider, in September 2002. The complainant was paid € 392.00 gross per week. The complainant's employment was terminated on 9th June 2017 and a Complaint Form was lodged with the WRC on 9th August 2017. The complainant has not found work since she was dismissed.
Summary of Respondent’s Case:
The respondent had provided a written submission in advance of the hearing.
The respondent submits that the complainant was one of very few unqualified workers in the crèche and over the years of her employment she was repeatedly encouraged to achieve a Fetac Level 5 qualification. However, the complainant continually cited the expense of doing the course as her reason for not enrolling.
In 2013 the Department of Children & Youth Affairs announced that as a minimum Fetac Level 5 would be necessary to work in childcare. The complainant was informed that she would have to complete her qualification before September 2016 to continue in childcare. To facilitate this requirement the government offered a learner fund which meant that employees such as the complainant could do the course free of charge.
In September 2014, the complainant informed her employer that she had applied for the learner fund. On investigation, it turned out that she had not applied for funding. After some discussion, it was agreed by Pobal that they would accept a late application and she was approved for funding. The complainant told her employer that she was attending a classroom based course in Tallaght. However, during a meeting in December 2014 when asked about the course the complainant told the respondent that she could not make the course in Tallaght but was signing up to an online course.
In January 2015, the respondent was becoming increasingly concerned and questioned the complainant who stated that she had not in fact signed up for the online course. Throughout January the complainant gave vague answers to the respondent regarding her efforts to start on a course. The respondent made it clear to the complainant that she could not keep her on if she did not get the necessary qualification; the complainant acknowledged and accepted this warning.
During the summer of 2015 the respondent reminded the complainant that she needed to focus on her college work, despite personal difficulties she was experiencing at the time. The complainant told the respondent that she was aware of this and would be qualified in time to keep her job.
A t a meeting in November 2015 the complainant again acknowledged that she needed to get the Fetac Level 5 qualification to keep her job.
In March 2016, the respondent again spoke with the complainant about the situation and issued a letter to her stating that her employment would cease on 31 December 2016 if she did not have the necessary qualification.
Through April 2016 to December 2016, the complainant gave verbal updates to the respondent about how her course was progressing. However, despite several requests the complainant did not produce any evidence that she had successfully completed the course.
On 4 May 2017, the respondent wrote to the complainant and gave her one months' notice to produce evidence of attaining the qualification. No evidence was forthcoming.
On 21 May 2017, the complainant wrote to the respondent, accepting she could no longer work in childcare but asking the respondent to reconsider their decision. The respondent met with the complainant on 2 June 2017 and offered her alternative employment as an afterschool carer or as cleaner in another crèche. The complainant turned down both offers. The complainant asked for a few days to say her goodbyes, which was agreed. The respondent also undertook to pay the complainant an additional two week's pay.
The respondent feels the claim for unfair dismissal is completely without merit. It is her contention that the complainant was offered a huge amount of support, including financial, to help her achieve the Fetac qualification. The respondent believes that the complainant misled her on several occasions about how she was progressing on the course.
In conclusion, the respondent submits that the complainant was given more than three years notice about this issue and was very aware that failure to quality would lead to her losing her job. The respondent has already made the complainant aware that she will be considered with all other candidates for future roles, once she achieves the necessary qualification.
In direct evidence the respondent stated that the Government schemes were run on Saturdays and evenings. The respondent denied this was a redundancy situation as the post still exists. She also stated that all the other staff got the qualification as required and that no other member of staff had been let go.
Summary of complainant’s Case:
The complainant provided a written submission.
The complainant submits that she commenced work in 2002 and that following a change of ownership in 2006 attempts were made to change her original contract of employment but the complainant declined and maintained her existing terms and conditions.
The Child and Family Act 2013 changed the regulatory environment of the childcare workplace. These changes were enacted through the Child Care Act 1991 (Early Years Services) Regulations 2016. A requirement was introduced that all staff working directly with children must now hold a minimum of QQI Level 5 Major Award in early childhood care and education.
Around the time the changes to the childcare industry were announced the complaint suffered personal problems and illness.
The complainant does not dispute that the respondent made her aware of the changes in the industry but does not feel the respondent did enough to help her achieve the qualification. Namely, the respondent did not allow the complainant time off work to do the course. The complainant believes it unreasonable to ask an employee who has been away from education for a considerable period and who would not be technologically minded to go off and get a qualification after work. The complainant is of the view that the respondent could have given her time off work to do the course.
The complainant contends that her original contract of employment contained absolutely no requirement to have a level 5 award. Her contracted role was that of an unqualified childcare assistant. According to the complainant, the position of unqualified childcare assistant no longer exists, so in other words, her position has become redundant.
It is the complainant's contention that as the business of caring for children and babies by means of supervision with unqualified childcare workers has ceased and can no longer be conducted; the kind of work that the complainant carries out has ceased.
The complainant believes that as there is a distinct qualitative change in the way childcare was to be carried out in the future a genuine redundancy situation existed.
In concluding, the complainant submits that the claim for unfair dismissal be upheld because she did not have the required qualifications to carry on in her childcare role and the legislation has determined that the role of unqualified childcare assistants is now redundant.
In direct evidence the complainant stated that although she had been offered crèche work, she had not worked since she finished with the respondent, as she could not work in crèches due to not having a level 5 qualification.
Findings and Conclusions:
I have carefully considered the evidence in this case. The complainant was dismissed because she did not have a required qualification and I must therefore decide whether the decision to dismiss was fair and reasonable in all of the circumstances. A dismissal is fair only if it arises for one of the reasons set out in Section 6(4) of the Unfair Dismissals Act 1977 which provides as follows:
Without prejudice to the generality of 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 qualifications 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 which 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.
In this case, the complainant did not acquire the qualification needed to remain working as a childcare assistant, despite getting support and encouragement from her employer over several years and being fully aware of the implications of not getting the qualification. The complainant also turned down an offer of alternative employment made by the respondent.
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.
Having assessed the relevant evidence, I believe that the ultimate decision to dismiss was reasonable in the circumstances therefore I do not believe that the complainant was unfairly dismissed and therefore the claim under the Unfair Dismissals Acts 1977 to 2007 must fail. In coming to this conclusion, I applied section 6(4)(a) of the 1977 Act and accept that the complainant was dismissed for qualification related reasons.
Dated: 26th April 2018
Workplace Relations Commission Adjudication Officer: Roger McGrath
Qualifications, childcare, support