ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00035977
Parties:
| Complainant | Respondent |
Parties | Jonathan Brincat | Health Service Executive |
Representatives | Frank Drumm BL instructed by Collier Law | Yvette Keating, Human Resources Manager |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00047157-001 | 13/11/2021 |
Date of Adjudication Hearing: 01/07/2022
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
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.
Background:
On 13 November 2021, the Complainant lodged a claim of unfair dismissal and three claims under the Minimum Notice and Terms of Employment Act, 1973. The latter claims were subsequently withdrawn at hearing. The Complainant worked as a Clinical Cardiac Physiologist for a two-year period. On 8 December 2021, the Respondent submitted a defence in the claim. This document rejected the claim for unfair dismissal. It outlined that the complainant was not retained in employment due to the shortfall in his qualifications. He was offered an alternative position, which was not accepted. Both Parties were represented at hearing. The Complainant by Frank Drumm BL instructed by Collier Law. The Respondent by their Human Resource Manager, Ms. Yvette Keating. Both Parties were approached prehearing to furnish an outline submission in the case. I managed to receive written submissions from both Parties.
At the conclusion of the hearing, I sought some detail from the Parties regarding them 1. reliance on Section 22 of the Health Act (respondent) 2. Professorial Analysis(respondent) 3. Letter which declared nonequivalence (complainant/respondent) 4. Permanent contract, if any (complainant) 5. Date of interview (complainant) 6. Number of posts in this grade at respondent employment
Once received, this was shared with the Respondent, who forwarded a short submission The last documentation was received from the Complainant side, and this did not illicit a response from the Respondent. At the commencement of the hearing, I informed the Parties that I had been a Union Official for Nurses and Midwives prior to 2015 and canvassed views in the event of an expressed reservation from either party. Neither Party raised an objection to my continuing in the case . |
Summary of Respondent’s Case:
The Respondent operates a public health service in Ireland and has rejected the claim for unfair dismissal. By means of written submission received prehearing the Respondent case can be summarised: The Complainant commenced work on a temporary basis in the position of Staff Grade Clinical Cardiac Physiologist on 19 March 2019. This appointment was made via a Recruitment Agency through a Service Level Agreement (SLA) The Complainant was issued a specified purpose contract on three occasions March 2019, 2020, and 2021 The position is grouped in the Physiologist category of in terms of accreditation and registration. The Respondent contended that the Agency is responsible for validation of qualifications at Section 5.4 (f) of the SLA Ensure that all candidates for the role of AHP (Allied Health Professional) meet the required eligibility criteria for the role, and produce original certificates/evidence in respect of such qualification The Respondent has set the 5 acceptable qualifications for the position in accordance with Section 22 of the Health Act, 2004 1 A Bachelor of Science, Clinical Measurement, DIT Or 2 A Bachelor of Science, Clinical Measurement, TU Dublin Or 3 Possess an equivalent relevant scientific qualification (level 8) B as confirmed by the IICMS Or 4 Possess the certificate in Medical Physics and Physiological Measurement, DIT Or an equivalent scientific qualification as confirmed by the IICMS in or before 2005 Candidates were also required to have “requisite knowledge and ability for the proper discharge of the duties of the office “Health and character requirement followed also. The Complainant attended interview for a permanent position in April 2020, was successful at interview and placed on a panel. On this occasion, the Respondent managed the “pre-employment” recruitment internally. In May 2020, the Respondent raised a query of equivalence directly with the complainant when they sought clarification on the Bachelor of Science (Hons) secured in Malta and the category of 5 acceptable qualifications for the position. The Complainant entered a validation process, and the recruitment process was paused to enable this. On October 7, 2020, the Irish Institute of Measurement issued the following determination: “We have found that while this course does sit at level 8 on the NFQ, it is not equivalent to BSc in Clinical Management Science as it does not have the same learning outcomes or incorporate the minimum clinical placement training requirements which are imperative to practicing as a clinical measurement physiologist in Ireland “ The Complainants Line Manager sought a further review in November 2020. She continued to supervise the Complainants’ practice. A Professorial review was completed and found that “significant differences between the taught degrees that culminated in there being no equivalency “ The Respondent Recruitment body advised that the recruitment process which involved the complainant should be ceased. A further specified purpose contract issued to permit time to engage with the complainant. The Respondent met with the complainant on 6 and 9 April 2021 to discuss options surrounding agency work as an ECG Technician alongside a support for the complainant to acquire the necessary accreditation. The Respondent confirmed that the temporary employment would cease on 14 May 2021. The Complainant declined any of the offered supports of continued employment to 18 June 2021 The Respondent relied on the contractual clause “the Unfair Dismissals Act shall not apply to your dismissal, consisting only of the cessation of the said purpose “. The Respondent outlined that they needed to fill the position with a suitably qualified candidate The Complainant lodged a grievance on 9 May 2021 via email. The grievance outcome was shared with the complainant on 13 May and reaffirmed the date of termination of employment. The Respondent submitted that there were substantial grounds for the cessation of the temporary employment. His continuance in the role was not viable from either a clinical or risk perspective once the non-equivalency of his qualifications and the required qualification was realised and confirmed. The Respondent outlined at hearing that they wished to rely on the defences contained in section 6 (4) (a) and (d) Ms Keating for the Respondent submitted that the Respondent had no choice in the matter and no discretion. The action taken was proportionate on foot of the discovery of lack of equivalence. the Respondent argued that they had behaved reasonably by commissioning review of the qualifications and unfortunately continuance in the role was not deemed viable as a result. Ms Keating confirmed that the Respondent had not engaged with the Recruitment Agency and no measures had been taken against the Agency in this matter. Ms Keating clarified that the Complainant had not been provided with a permanent contract and his entire service record was temporary /specified purpose in nature. Evidence of Mr Fergal Walsh, Human Resource Manager: Mr Walsh distinguished both separate pathways surrounding the role the recruitment agency held and the Respondents own recruitment body. He recalled that the permanent position was approved for filling in late 2019 and subsequently advertised. An unnamed National Decision maker halted the recruitment in the complainant’s case as his qualifications needed to be validated to match the set qualifications needed for the position. By late March, early April 2021, the complainants’ qualifications had been deemed inadequate and he advised against appointment and proposed the need to terminate the complainant’s employment. He discussed this with the Complainants line Manager and the Operations Manager. The Complainant was offered an alternative role in ECG Dept. He was not provided with an appeal of the decision to dismiss him, but the complainant did take a grievance. Mr Walsh clarified that the Commission for Public Service Appointments were not involved in this grievance. During cross examination, Mr Walsh reaffirmed that the Respondent did not host an appeal of the dismissal. When questioned on whether the Operations Manager, who had managed the complainants appeal was available for the hearing? Mr Walsh clarified that she had relocated to a new service. Mr Walsh confirmed that the sole review of the qualifications emanated from the process surrounding the permanent competition and not earlier during the initial temporary contracts. The Professorial review had been forwarded to the complainant by email. Mr Walsh confirmed that that the Complainant should not have been employed in 2019. When Counsel for the complainant put to him that the complainant had been deemed satisfactory, Mr Walsh replied “by default “He confirmed that the complainant reported to Ms Z
Mr Walsh clarified that the Complainant had 3 colleagues at the same grade and no performance issues had been raised against him. Mr Walsh recapped the details surrounding the permanent post recruitment process, which was followed by pre-employment checks for the complainants no 2 position on the panel. He added that he was not a decision maker in that competition or in terms of the decision taken to dismiss the complainant. Counsel asked him if he had concerns regarding the complainant’s dismissal? Mr Walsh confirmed that he had been offered a month in the role of ECG Technician. The Complainant received EAP support. Mr Walsh confirmed that there was no Registration body for this clinical position. In clarifications. Mr Walsh confirmed that the decision taken to dismiss the complainant originated in late March 2021. He was unsure if the complainant had been replaced. In seeking to ascertain if measures short of dismissal had been considered? Mr Walsh reaffirmed that the ECG role was the sole consideration. He had not considered the impact of the dismissal on the complainant. The Agency was not met with any repercussions in respect of the earlier endorsement of the complainants’ qualifications. Mr Walsh clarified that the Respondent was bound to follow section 22 of the Health Act. There were no documents which outlined the dismissal. He clarified that he did not hold a delegated authority to dismiss. In closing, Ms Keating for the Respondent focussed on the “legal reasons “surrounding the rational for dismissing the complainant. She said that the job was graded to reflect clinical governance and patient safety, which were both subject to clinical indemnification. These criteria were posted in advance and the Respondent had no discretion to alter course here. In addressing the point on the revision of the complainant’s state remedies, Ms Keating, confirmed that the Respondent was not in a position to have the complainant back for the stated reasons.
Unfortunately, termination of employment was inevitable as there was no mechanism available so as to rectify the “shortfall in qualifications “The Respondent stood over the concerted efforts made by the Head of Department through the Professorial review and while they tried to reconcile both sets of qualifications, they were unable to find a way. The Respondent did not issue a permanent contract to the complainant, they were prevented from doing so, based on the qualification shortfall. The Respondent contended that placing notice of dismissal in writing would have created further anxiety at a time when the complainant’s welfare was regarded. On July 8, 2022, the Respondent followed through with the requested documentation. I received confirmation that the interview for the permanent post was held in April 2020. There are 256 whole time equivalent posts at the grade held by the complainant The Respondent sent the composition of Section 22, Health Act, 2004 This information was shared with the complainant side but did not generate an on-point response. |
Summary of Complainant ’s Case:
On 13 November 2021, the Complainant submitted a complaint that he was unfairly dismissed from his position as a Clinical Cardiac Physiologist at Naas General Hospital. He recorded the date of dismissal as 14 May 2021, which he later clarified as 18 May 2021 at hearing. The Complainant was paid fortnightly and received a gross pay of €1504.18 for a 37.5-hour week. On his complaint form, the Complainant selected the preferred remedy of compensation in the event of the case going in his favour. At hearing the Complainant opened up all remedial options on foot of a query from the Adjudicator in terms of efforts at mitigation. He found new work after a 7-month period of unemployment Counsel for the complainant submitted a written submission on the chronology and occurrences in the case. Contracts of employment were exhibited. It was common case that the complainant commenced employment on 18 March 2019 in possession of a Bachelor of science (Hons) in Health Sciences as a Temporary Staff Grade Clinical Cardiac Physiologist with an attached job description. It was the complainant case that he settled well into the post and at the suggestion of his manager, he applied for and secured a permanent position and signed a contract. Both roles were the same. The Respondent did not provide the complainant with a copy of the latter contract. It was the complainant case that issues regarding his qualifications were raised after he had accepted the permanent position. The Complainant was notified that his qualifications had not been verified by the Irish Institute of Clinical Measurements and “due to legal reasons” the respondent intended on terminating his position. The Complainant exhibited an email dated 9 April 2021, which was penned by the complainants Line Manager, not present at hearing. Counsel submitted that this email constituted a declaration of dismissal for 14 May 2021. Counsel submitted that the complainant appealed the termination of his employment on 9 May 2021. He sought 1 copy of signed permanent contract 2 reasons for inconsistent treatment of his qualifications 3 alternatives considered to dismissal 4 clarifications of what constituted “legal reasons” The Grievance outcome was concluded by email by Ms X, Operations Manager and upheld the decision to dismiss the complainant “However, I believe that the decision to terminate your employment with effect from 14 May 2021 is the correct decision. The reason for the ending of your employment is that your qualification does not meet with the qualification requirements for this role “ The Operations Manager was not present at hearing. At hearing, Counsel for the Respondent submitted that the Respondent took over any liability directed at the Recruitment Agency. He also called into question the validity of the Specified Purpose Contract as the purpose was cited as “vacant position “ Evidence of the Complainant: The Complainant outlined the nature of the range of work he undertook with regard to stress tests and BP Monitors. He reviewed the data and reported to his Line Manager. He confirmed that he held a Degree in Physiological Measurement. B Sc, Malta He recalled his initial entry to employment at the respondent hospital. He said that he applied through an Agency and had an interview 2/3 months prior to commencing employment. after which, he sourced accommodation. He loved the job and was clear that he was working within a supportive management. The complainant said that his Line Manager, Ms Z recommended that he apply for the permanent position, and he followed that advice. He attended an interview and was offered the position. He understands that he had signed a new contract as a result. Two months after the interview, which he believed was January 2021, he received an email seeking his professional documents. He submitted these once more. He said that he signed a contract after the interview and after Christmas 2020. The Complainant was unable to pinpoint the date he interviewed for the permanent post. The Respondent informed him that his qualifications were not equivalent to those being sought at the respondent service. He brought this information to Ms Z who told him she would seek a Professorial review. The outcome of this Professorial review found deficits in the equivalency of the two sets of qualifications and an indication that he would have to return to college for 2- 4 years to bridge the gap. No further solutions were proposed after this. The Complainant went on to recall that he was informed at a meeting in the Holter room with Ms Z and Mr S, 5 weeks before 14 May 2021 that there were “legal reasons why he could not be kept on “He was provided with a phone number for occupational health and informed that a potential agency role in ECG would be kept open for a month. He recalled having a Leaving Do but did not receive a letter confirming his dismissal. In addressing Mitigation, he told the hearing that he was currently self-employed outside the jurisdiction and earned £ 18.43 per hour from December 2021 and full time £ 21 from May 2022. During cross examination, the complainant confirmed that he had moved to Ireland in February 2019. He had submitted all his personal documents to the Recruiter at the Agency. He stated that he was a Graduate and knew that he would be supervised in the hospital setting. In answer to Ms Keatings question, he accepted that the permanent post was approved prior to Christmas, 2019 and that he had been asked to supply documents in May 2020. The process continued until the October 2020 on the gap in equivalence and where deficits were highlighted. He confirmed that he had received an offer of an agency position at ECG of one month duration and that he had not accepted this, as he needed some5thing more secure. He told Ms Keating that he told the Respondent Managers that he would take any job, inclusive of portering. Nobody informed him of any vacancies. When asked if he accepted that the offer of the post is subject to conditions and checks, he replied “I think so “ The Complainant was vague on the permanent contract and could not recall when he was asked about supplemental checks. He confirmed that he did not appeal to the commission of public service appointments and left in May 2021 finding new work on December 1, 2021. In clarifications, the Complainant clarified that he understands the reason for dismissal was “The law “ In seeking a position on loss and mitigation, the complainant confirmed that he had gravitated towards his family and received job seekers benefit until his mind became more settled. He fell back on his savings. I asked the complainant what his position was on the other two remedies initially ticked on the complaint form and he clarified that he would go back to work for the respondent? He did not accept the distinction in clinical cardiac physiologist and clinical measurement physiologist He confirmed that there was no registration body for his discipline. I requested that the complainant produce the permanent contract he believed that he had signed. He confirmed that his meeting with Ms Z and Mr S lasted 30 to 45 minutes When asked to tell me in in his own words why he believed the dismissal had been unfair in this case, he said that the legal reasons relied on by the Respondent were not specified In closing, Counsel for the complainant said that he could see the Respondents perceived difficulties, but the resultant action taken was unfair to his client. The absence of Ms Z from hearing was marked. He restated that the complainant had not been provided with a copy of the permanent contract. The Complainant had not been advised on any procedure governing dismissal in his employment. This conveyed an unreasonable backdrop in accordance with section 6(7) of the Act and determined that the contract was void abinitio. He concluded that there were a range of responses open to the respondent short of dismissal; He pointed to an irony surrounding the trigger that the application for the permanent post promoted as if his client had not applied for the permanent post, it is arguable that he would still be in his long-standing entry position. He submitted that dismissal was disproportionate and unfair. The Respondent held overall responsibility for the inadequate response of the Agency. The complainant experienced a summary dismissal when the job could have been saved. Counsel submitted that the contra referendum rule should apply against the Respondent. On 25 July ,2022, the Complainants Solicitor submitted a Court of Appeal Judgement Helen Earleyv Health Service Executive [2017] IECA 157written by Hogan J, with Judges Finlay Geoghegan , and Peart concurring .This was shared with the respondent, but did not generate a response . The Complainant extracted the judgement but did not make submissions on applicability of the facts of the case to the instant case on this occasion.
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Findings and Conclusions:
I have been requested to decide on whether the complainant was unfairly dismissed from his position at Naas General Hospital. In arriving at my decision, I have had regard for all written and oral submissions put forward by the parties. I have also reflected on the evidence adduced at hearing. I have considered both parties post hearing submissions as requested by me at hearing. I have a preliminary issue to address and resolve. Jurisdiction of Unfair Dismissals Act, 1977 The Respondent had pleaded reliance on the exclusion/ waiver clause contained in Section 2(2) (b) of the Unfair Dismissal Act, 1977. Their preliminary argument centred on the claim that the complainant by reason of the exclusionary clause incorporated in the three contracts of employment, did not hold locus standus in the case. 2) Subject to subsection (2A), this Act shall not apply in relation to— (…….. (b) dismissal where the employment was under a contract of employment for a fixed term or for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment) and the dismissal consisted only of the expiry of the term without its being renewed under the said contract or the cesser of the purpose and the contract is in writing, was signed by or on behalf of the employer and by the employee and provides that this Act shall not apply to a dismissal consisting only of the expiry or cesser aforesaid
This point was strongly contested by Counsel for the complainant, who drew on the application of Section 13 of the Unfair Dismissal Voidance of certain provisions in agreements. 13.—A provision in an agreement (whether a contract of employment or not and whether made before or after the commencement of this Act) shall be void in so far as it purports to exclude or limit the application of, or is inconsistent with, any provision of this Act. I have reviewed the three submitted contracts of employment carefully in light of the Superior Courts findings in Board of Management Malahide Community School v Dawn Conaty No 2, [2019]30 ELR 178 and the previous case of HSE v Doherty [2015] IEHC 611 The three contracts: 1. First contract “will commence on a date to be confirmed upon receipt of your employment permit “ Later agreed as 19 March 2019 and was signed by both parties prospectively, the complainant on 20 February 2019 and the Respondent on what appeared to be 12 February 2020 but confirmed at hearing as the same day as the Complainant. The appointment was made on a specified purpose basis of covering a vacant post and contained the clause: The Unfair Dismissal Act 1977-2007 shall not apply to your dismissal consisting only of the cessation of the said purpose. I found no evidence of any discussion with the complainant surrounding this clause.
Neither Party addressed whether the complainant was managed under the umbrella of the provisions of Section 8 of the Protection of Employees, Fixed Term Worker Act ,2003 or received written statement. Note Doherty on this point 2 Second Contract No 2 commenced on 18 March 2020 The copy exhibited had two signatures from the respondent and none from the Complainant. It contained the same mirror clause on applicability of the Unfair Dismissal Act to a dismissal 3 What followed next was a certain confusion that he had signed a permanent contract and it was from that contract that his employment was terminated. I found a certain vagueness in the complainant evidence on this point, and I called for a copy of the permanent contract for my inquiry. None came. I accept the Respondent evidence that the permanent competition was paused in the complainant case in a bid to seek to resolve the apparent lack of equivalency in the Malta qualification and the requirement of the Respondent. I conclude that the complainant did not receive a contract of indefinite duration at any time in the respondent employment. He was in fact in receipt of three back-to-back temporary contracts, with incremental progression, which by their linkage and continuity resulted in acquiring rights and protections under the Unfair Dismissals Act, contemporaneously with the acquired right under the fixed term legislation. Third Contract of Employment commenced 25 February 2021 and was signed by Ms Z and the Complainant The appointment was made on a specified purpose for the purpose of covering a vacancy. The anticipated end date, was not as declared by the Respondent as a time allocated for “breathing space “but “for the purpose of covering a vacant post “ This was the contract which was terminated on 14 May 2021 and not as submitted by the complainant 18 May 2021 I noted that the claim was lodged on 13 November 2021, which fell on a Saturday and was received in the last few hours of the parameters of Section 8 (2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015) to the Director General— (a) within the period of 6 months beginning on the date of the relevant dismissal, I must now decide on the resolution of the preliminary point on whether the Respondent can safely rely on the exclusionary / waiver clause of S. 2(2)(b) of the Act? I learned and noted at hearing that the complainant had not been replaced in his role. For me at least, this confirmed that the Complainant had not been terminated due to an oncoming incumbent to the role. Instead, he had been terminated as the Respondent had identified a shortfall in equivalence in Malta qualification and the Respondents stated required qualifications. This veered outside of the provisions of the waiver /exclusion clause in this case, and I find that the Respondent cannot rely on the application of S 2(2) (b) on this occasion. I am drawing from and strengthened in my views arising from the Labour Court case, which found an unfair a dismissal in Limerick City and County Council v Moran UDD 2/2018, where performance issues were highlighted as the real reason for non-renewal of contract. In reading Conaty and applying some of Simmons J logic to this case, I have found that the Respondent had paid insufficient regard to the complainants acquired rights under the Unfair Dismissals Act, which cannot be defeated by an attempt to apply the terms of Section 2(2)(b) Both of the complainants’ contracts prior to 25 February 2021 were of one year standing. He was not replaced in his role. I am satisfied that he was not provided with a contract of indefinite duration at any time. I have expressed my reservations on the lack of visibility at the very minimum of how the Respondent discharged their obligations under Section 8 of the fixed term legislation. I am satisfied that the issue at the heart of this case is equivalence of qualifications and both parties’ interpretations of same. There was no cessation of the “said purpose … by the covering of a vacant post “ This places section 2(2)(b) outside of the Respondent reach as the end of the contract was not matched by the filling of the position. There was a far more profound sub plot of equivalence of qualifications at the root of the dismissal.
I find that I have the jurisdiction to proceed to the substantive case. I have resolved the issue in favour of the complainant. Substantive Issue: I have given a lot of thought to the circumstances of this case. I am grateful to the Parties who both worked hard at hearing to help me glean the facts of the case. At hearing, the complainant presented as very fragile and inconsistent in his recollection of the chronology in the case. I would have liked to have met the complainant in February 2019, as I was unclear if this was his base line presentation or whether his participation in the live recollection of his dismissal had upset him. I understood and empathised when he explained that he had gravitated towards his family for support post termination. I did not have the benefit of any medical evidence to help me to obtain a broader insight into that aspect, outside the complainants own direct evidence and the Respondent evidence that Support measures were offered in the preparation for his departure. Dismissal is defined in Section 1 of the Act “dismissal”, in relation to an employee, means— (a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee, I am satisfied that the complainant was dismissed on 14 May 2021 and not 18 May 2021 submitted by Counsel for the Complainant. The Law on Unfair dismissal is set out in Section 6 of the Act. Unfair dismissal. 6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. While the onus or the burden of proof falls on the Respondent to prove that a dismissal is covered by substantial grounds, a defence is permitted in section 6(4). In this case, the Respondent has relied on the stated position that dismissal occurred in the case wholly as a result of a shortfall in equivalence of qualifications for the position of clinical Cardiac Physiologist. In this submission, they have relied on section 6(4)(a) and 6(4) (d) The Complainant has submitted that the reason for dismissal was provided as “unspecified legal reasons “and this amounted to an unfair dismissal. (4) Without prejudice to 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. The Act also provides scope for me to consider the reasonableness or otherwise of the conduct of the employer in relation to the dismissal 6 (7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court], as the case may be, considers it appropriate to do so— (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.] At the outset of this case, I was unfamiliar with the grade or role held by the complainant for over 2 years at Naas Hospital. I learned from the Parties that it was not a Regulated Position. In asking that question, I was mindful of the mutual recognition of qualification informed by EU Directive 2013/55/ EU which amended 2005 /36/EC, enshrined in Irish Law by SI 8/2017, Recognition of Professional Qualifications Regulations 2017. Neither Party relied on this backdrop in their submissions. The Complainants membership of the EU was not raised at hearing. Malta and Ireland are Member States of the EC. It is not for me as Adjudicator in this case to decide on the equivalence of a degree obtained in Malta and a Respondent listing of a range of 5 alternative education qualifications, 4 of which had to have originated in Ireland. Instead, I am considering the facts of the case raised, to decide if the dismissal was accompanied by substantial reasons and that the respondent conducted the dismissal through the “band of reasonableness “ In considering a serious matter of a dismissal in any job, I as an Adjudicator always like to hear direct evidence from the Decision maker in the case. This assists me to framer the case as an A to Z for dismissal as it follows in the main with direct evidence from the complainant side. This did not occur in this case. I would ask the Parties to consider carefully what I am now going to say. Dismissal in an employment is a very serious matter. It is an imposed end of a job with a simultaneous loss of pay, conditions, pension and sometimes reputation. In my experience, dismissal leaves a residual mark /scar or tarnish on a person, and it has often been referred to as “the nuclear option “ There are occasions where dismissal is the correct fit for a Respondent and in those cases, they may have full confidence and reliance on the defences contained in Section 6(4) as outlined above. There also occasions where dismissal is the correct fit for the Complainant when faced with an untenable employment, i.e., constructive dismissal in accordance with section 1 of the Act. Just as “a nuclear “option of war is surrounded by a hierarchy of people invested with the authority to press that nuclear button to detonate an attack “so too “should the nuclear option of dismissal be surrounded by a clearly identifiable hierarchy of people invested with a delegated authority and skill to terminate employment, if necessary and in accordance with the law In this case, the Complainant was hired via an Agency, which now, from the Respondent evidence appears to have engaged in an incomplete process surrounding validation of credentials in the complainant’s case. Yet, the Complainant performed the job he was hired for from 2019 -2021. It is important for me to reflect that the Respondent argument arising from section 22 of the Health Act, 2004 refers to a National Competition for 5 grades of Physiologists from May 2020 and not the criteria provided to the Agency by the Respondent in February 2019. An undated Service Level Agreement provided at hearing fixed the Agency to take “full responsibility for every aspect of the screening process of all candidates …. 1 completion of an application form 2 CV 3 educational and training records 4 pre-employment checks and candidates for the role of Allied health professionals meet “required eligibility criteria “ I cannot accept that the Respondent document dated May 2020 on Statutory Registration, Professional Qualifications, Experience sets out the same criteria for the Complainants initial role , hired in February 2019 .I did not receive a listing of the criteria which prevailed at that time . I asked Mr Walsh if any measures had been taken to address this perceived shortfall in thoroughness from the Agency at recruitment stage through the SLA? No measures were taken against the Agency. I found this unusual given the breakdown of SLA in Respondent eyes and must accept Counsel for the complainants point that the Respondent holds the ultimate responsibility for this failed delegation, which came to light 2 years and 2 months after the complainant commenced work and only following the actions of the Respondents own National Recruiters. While I didn’t canvas it, the Respondent sent in Section 23 and 24 to accompany the requested Section 22 of the Health Act, 2004 For information purposes, alone, Section 23 refers to the national competition when it says that the Recruitment Licence Holder is responsible for deciding whether a candidate is qualified for a position or not. Crucially, I have not been provided with evidence from that Decision maker. I did see mention on documentation submitted post hearing of the complainant being informed that he lay dormant on a panel for the permanent position in May 2020. By then, the Complainant had been graded No 2 at interview from April 27, 2020. However, this decision did not inform the Complainant that his continued employment at the Respondent Health Service was at risk. This brings me to that notification. I asked the Respondent for the Professorial review of the complainants’ qualifications as referred to a hearing. This came second in time to the initial review by the Advisory body dated October 2020 I did not hear evidence from Ms C, President of the Representative/ advisory body who wrote in a document submitted by the Respondent at hearing: “……. This body is recognised by the HSE as the Professional Representative Body for all disciplines within clinical Measurement Science and as such is the body which advises on equivalency of qualifications for Clinical Management Physiologist posts The letter went on to say that they had reviewed Bachelor of Science (Hons) in Health Sciences “We have found that while this course does sit at level 8 on the NFQ is not equivalent to the BSc Clinical Measurement as it does not share the same learning outcomes or incorporate the minimum placement training requirements which are imperative to practicing as a Clinical Measurement Physiologist in Ireland “ Of note here for me is the wording of the Professional Qualifications / Experience applied to the permanent position Grade No 3867 It is also of note that the power of this body must be viewed as a subsidiary of the HSE who, by their own admission were bound by Section 22 of the Health Act. “Possess an equivalent relevant scientific qualification (Level 8) as confirmed by the (Rep Body) “ There was no reference to the Qualifications Directive or that the Complainant had recorded 1.5 years’ professional service in the role at this juncture. I found the Complainant quite reticent on this topic. I did not get a sense that he had advocated vocally in his own case. This is a case where the complainant would have benefitted from an advocate early on. For me, he invested in Ms Z to that extent, which did not reap benefits or success. He did, however, confirm that he accepted the first validation of his qualifications, which occurred post interview for a permanent post. I appreciate that this was his first job post college. However, I would have appreciated a stronger recollection of chronology and a record of more personal advocacy early on in his own case. It may be of benefit for the future to maintain a diary. Section 22 is an enabling legislative provision, not a mandatory provision. It gives the Respondent authority to hire on specific criteria and “determine their duties “ It is one of the standout moments of this case, for me, that the Respondent renewed the Complainants temporary contract of employment on 25 February 2021, which was activated on 18 March 2021.This document was co-signed by Ms Z and the complainant, but not by Mr S. The terms of renewal reflected both preceding contracts of covering for vacancy, and it was not time limited. However, the Respondent told me at hearing that the contract was issued for breathing space to decide just what to do with the complainant’s tenure. This is a critical variance and one, which prompted me to want to look behind this a little. I had requested that in the absence of the Professor to give evidence at hearing, that I would like to review the Professorial review. I did not receive this key document from either party. The Respondent has attributed and relied on this document as the trigger for cessation of the complainant’s employment in May 2021. I noted a brief summary of the Professorial review, but in light of the discussions referred to by the complainant at hearing and supported in the respondent notes of the April 9 meeting, I simply wished to illicit whether further options were flagged for exploration to save his position on 9 April 2021? Note Ms X letter dated June 2022 I would have liked to have met MsX, who took over from Mr S. A letter produced at hearing, is of limited value as it has no probative value, nonetheless, it raised some doubt in my mind that options may have been put forward via the outcome of the Professorial review, which stopped short of dismissal. The email from Professor X outlined the modules and placements required to ensure equivalent qualification with the Irish Degree course. Professor outlined your options to either apply for Clinical Measurement science TUD, but you would need to complete year 2 3 4 years full time or apply to hospital-based physiology course available in the UK I accept that the complainant received this review. I also accept that that this prompted the meeting in the Holter room which I accept from the complainant’s own evidence lasted 30 to 45 minutes. I am troubled that the full Professorial review, the last external validation in this case prior to dismissal has escaped me. It seemed to me from the Respondent oral and written submissions that the complainant had recorded a tacit if even fatalistic acceptance of his impending termination of employment marked for 14 May 2021. However, I found that the Respondent gave insufficient weighting or procedural framework in respect for the grievance submitted by the complainant on 9 May 2021, which countered that. Once again, I say that the Complainant delayed needlessly in this matter and ought to have been more focussed and responsive in his intervention. On balance, I accept that he did not have a tangible document saying you will be dismissed on an identified date. In fairness, I accept Counsel for the Complainants submissions when he termed the email from Ms Z to the complainant as a “declaration of dismissal “on 9 April 2021 “We discussed your finish date as cardiac physiologist would be 14.5. 2021.You would be entitled to 3 ½ days annual leave for April and May to that date. If you decide to apply for a job via an Agency as ECG technician for a further month you need to contact Mr O with your details and qualifications.” I can safely interpret this as a planned departure, but the grievance lodged by the complainant in the absence of any pro offered appeal from the Respondent on 9 May, 5 days before his last working day, casts a mortal wound on any reliance of consensus on dismissal, when the opening lines stated “I wish to raise a grievance and formally submit the following under the HSEs Work Policy, and I also wish to appeal the hospitals decision to terminate my employment “ It is clear that the complainant had received external advice and wanted to save his job, citing 1. ongoing competence to perform the job 2. qualifications previously validated 3. clearance to continue in role ongoing 4. unreasonable to end employment
He asked the question, why was he allowed continue in post in circumstances of allegations of shortfall in qualifications? This email was acknowledged by Mr Walsh, who re-affirmed the dismissal for 14 May 2021. The grievance was addressed by email of 30 June 2022, once again, the Author was not present at hearing. Ms X wrote that dismissal “was the correct decision “ “As you do not fulfil the qualification requirement to be employed in the role. I believe the appropriate course of action is to terminate your employment. This decision has been communicated to you in meetings with your department head and the operations manager a number of weeks ago on 9 April and confirmed by you on 26 April” I am taken aback that the complainant’s grievance was not heard in the format permitted in the Respondent procedural framework. Grievance Procedure (Meeting within 7 days of submission) In all that I heard in this case from the very capable Respondent Representative, I am at a loss to understand just how these events and circumstances unfolded the way they did. The contract of employment contained a clause on performance review. Neither party raised any issues here. On the contrary, the complainant said he loved his job and took pride in it. I must now focus on the Respondent defence to ascertain whether they can rely on Section 6(4a) and (d)? To assist in my decision making, I consulted Des Ryan BL, Redmond on Dismissal pp345-346 Mr Ryan reminds me that “qualifications are not defined in the 1977 Act” “But they must be for performing work of the kind which the employee was employed by the employer to do “ Blackman v the Post Office [1974] IRLR 46, Murphy v Dept of Education and Science and ors UD 66/2005 (dismissal for lack of qualifications essential to the job not unfair) Mr Ryan goes on to reflect about qualifications which fade through time and new technological challenges. He reflects that an opportunity to improve/ upskill should co-exist, Coyle v Dun Laoghaire VEC UD 993/1996 In the instant case, both sides acknowledge and accept that the Agency acting as a recruiter passed the complainant for work as a Clinical Cardiac Physiologist in February 2019 and he worked without incident and apparent great enjoyment and fulfilment until the HSE National Recruiter placed him dormant on National Employment Panel for the job he was doing. He had passed the interview and received No 2 on the Panel. The pause was to address equivalence of qualifications. Two external reviews of qualifications followed. The first was an opinion in October 2020, the second a Professorial review, pointed to shortfalls in equivalence of qualifications, but did not recommend dismissal. Ms X grievance outcome letter, for instance suggests that a pathway in the UK was suggested. the complainant did not advance this in his evidence before me.
Due to the lack of real time witnesses in the form of Mr S, Ms X, Z or Professor C, or indeed the National Recruiter I found it difficult to pinpoint just who made the decision to dismiss the complainant. I have to conclude that the person who decided to dismiss the complainant from his temporary position was Ms Z. This occurred some 6-7 weeks after she renewed the complainant’s contract to become live on 18 March 2021 The complainant appealed this intention to dismiss, which was affirmed by Mr Walsh on May 11 as a desk top exercise. I found this to be procedural containment. I have found that the Respondent moved with undue haste towards the “nuclear option of dismissal “of an employee with acquired rights of over 2 years’ service at the Hospital. I understand the point advanced by the Respondent Representative that the Respondent believed that they had to remove the complainant from the role. However, I found that the Respondent owed the complainant some consideration and recognition of his professional service at the hospital at the time of his dismissal. He should have been presented with the full Professorial review and any suggested pathways for continuance in employment. The criteria relied on for the Respondent referred to the criteria for a permanent position. The complainant served solely in a temporary capacity throughout his tenure. The permanent competition was paused from May 2020, yet the temporary employment persisted to May 2021 . My mind is now drawn to an older EAT case under the chairmanship of Peter O Leary, BL John O’ Brien v Co Dublin VEC UD 959/1995 The facts of the case are of interest and concern a claimant who worked part time as a woodwork teacher in an open prison. He was deputising for a full-time teacher, absent through sick leave. Mr O Brien was on notice that cessation would coincide with the return of the post holder, who then resigned in May 1994. Advertisement to back fill was unsuccessful. the complainant was unable to step into the whole-time position as his qualifications did not match the Dept of Education requirements. However, he was re-appointed in a part time capacity for the academic year 1994 -1995. In May 1995, the complainant was stood down for the next academic year on the announcement that a permanent full-time teacher was available. This Teacher joined and subsequently redeployed. The Complainant reported for duty in September 1995 and reported that “he was told that he was neither dismissed nor suspended but that he could not be timetabled at that time “ In words which, of course sound prophetic now, when we consider the slow and profound evolution of the Protection of fixed Term Workers Legislation into 2003, I find it important to reflect the Tribunals thinking at that time In not seeking to individualise or cast blame on the respondent in the case, nonetheless, placed the mantle of employer on the entity and in finding an unfair dismissal, the EAT held “ … to employ any person in a capacity on a supposedly temporary contract for any period in excess of year regardless of whether the person has knowledge of the temporary nature of the employment or not is in the Tribunals opinion reprehensible and when this combined then with a dismissal because they have found that that person does not satisfy particular requirements that they have arbitrarily set down even though those persons are actually fulfilling the day to day standards of a person in that post is in our opinion unfair and unreasonable ……. “ The Tribunal went on to be highly critical when it said “Here we have a Government Department setting down standards for a post, a necessary precondition for obtaining those standards being that somebody attend and qualify at a college in Limerick or Gorey. The requirements that this post needs are a practical experience in woodwork and an ability to communicate those skills to pupils …. They found the dismissal to be unfair. In a more recent case of Dublin Bus and Osborne Irabor UDD 2168, the Labour Court considered the appeal of dismissal and an application of the defence contained in section 6(4) d) This case involved a careless driving causing death occurrence for a Bus Driver which resulted in a 4-year driving ban from January 2019. the complainant claimed frustration of contract, unfair dismissal In finding for the Respondent case, who argued that the complainant as a bus driver could not drive without breaking the law The court held “The court notes that the respondent, once the ban came into effect and they were put on notice of the appeal sought clarification as to what if any impact on the ban the appeal would have, and they continued to pay the complainant during that period. I the circumstances of this case, where the complainant’s ability to continue to work in the position he was recruited to was hampered by a legal impediment, the court determines that the respondent is entitled to rely on section 6(4) (d) and therefore the dismissal was not unfair “ If I return to the instant case, I found that based on the case made, the Respondent rushed into a dismissal and overlooked the complainants’ acquired rights through service or even to redundancy, given the open vacancy in the role. I have found that that no performance issues were raised by the complainant over his 2.3 years’ service. His performance was monitored and endorsed by his Line Manager as reflected in the third contract. His departure did not prompt a service review. The complainant was not a member of a regulated professional. He was not impeded by Law from carrying out his duties. Irabor distinguished Instead, I find that there are remarkable similarities in the O’Brien case and the instant case. I note that the Respondent believes they set qualifications for the position worked in by the complainant since February 2019. They contended that their Agent had not honoured these qualifications. Instead, the complainant was hired by the Respondent and from both parties’ submissions, thrived in the role. It is an enduring point that the qualifications set for May 2020 national competition were not produced in mirror fashion for the recruitment process in February 2019. The National; competition placed a scrutiny on the qualifications and the National Advisory service said the complainant was matched with level 8 NFQ but was not equivalent to the other 4 university awards of Dublin, TU Dublin, Dublin Institute of Technology in Ireland. Crucially, the Respondent did not endeavour to reconcile these qualifications in the complainant’s case or consider a redeployment plan as lightly referred to in Ms X grievance outcome which arrived much later than the occurrence of dismissal. The complainant has placed Helen Earley v Health Service Executive [2017] IECA 157; Court of Appeal, Hogan J. (Finlay Geoghegan and Peart and JJ. concurring), 15 May 2017 On file, without a particularised submission on how the facts apply in this case. It would be unwise for me to presume what the complainant side wish to say on the application of this case as the Respondent has not responded with comments either. In reaching a decision in this case, I find that this dismissal is unfair, unreasonable and disproportionate. The Respondent failed to focus on the individual acquired rights or proven professional experience of the complainant, who simply got lost in the lack of contingency to the presumed omission by the Agency. The Respondent did not take responsibility for this presumed oversight and failed to construct a pathway to resolving this matter through either qualification or redeployment. I found that insufficient regard was had for measures short of dismissal. I have found that the sudden cessation of employment amounted to major event in the complainant’s life. I am strengthened in my view of this by the complainant’s own evidence that he would have considered any job within the respondent service, but none was offered. I accept that the Complainant was advised on how to apply for an ECG position through an Agency. I believe that the Respondent owed the complainant a much stronger duty of care and facilitation than that. Nobody considered the complainants undisputed achievements or his endorsed work. Nobody investigated the reported Agency omission. The Respondent has almost 250 other employees in this grade, and nobody appears to have assessed this grouping for a potential resolution. Section 22 does not mirror a Legislative imperative to rival Irabor. As I said it is an enabling platform for recruitment. It did not delegate authority to dismiss anyone. The complainant was dismissed by a line manager who did not possess ostensible authority to dismiss and did not come to hearing to explain what happened. The complainant was denied a fair hearing of his grievance to appeal his termination. In all of the circumstances of this case, I find that the Respondent cannot rely on the defences of Section 6(4) (d) or (a). The Complainant was not a member of a regulated profession and the Respondent were not compelled to dismiss by law or contract The Complainant was unfairly dismissed.
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Decision:
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. I have found that the Complainant was unfairly dismissed. I have given some thought to the correct remedy to apply in this case. I heard both parties on this topic. Redress for unfair dismissal. 7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following F49[the adjudication officer or the Labour Court], as the case may be, considers appropriate having regard to all the circumstances: (a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or (b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or (ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances, and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership. I have included the provisions of Section 7 to outline for the parties the breadth of options open to me in this case. I believe the only practical option in this case is an order of Re-engagement in accordance with section 7(1) (b) of the Act. I say that this is the most just and equitable option open to me in light of the wrong done to the complainant and the sensitivity surrounding the blend of his qualifications and recorded clinical experience for the Respondent. This is best addressed by the Parties themselves. I order the Respondent to re-engage the Complainant either in the position which he held immediately before his dismissal, if that is at all possible or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances. Pension rights should be preserved. This should be managed by the Respondent at National Level and not the local hospital . The date of re-engagement is 15 May 2021.
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Dated: 29/11/2022
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Key Words:
Claim for Unfair Dismissal, Qualifications: Section 6(4)(a)(d) defence |