Complainant

Respondent

Parties

Caroline  Condon

Health Service Executive (HSE)

Representatives

  Self-Represented

Emily Mahon HSE

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00067200-001

06/11/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00067200-002

06/11/2024

The Complainant was employed by the HSE National Ambulance Service (NAS) as an Intermediate Care Operative from 14 May 2018 to 11 November 2020 and left NAS to take up the role of a Community Swabber as part of the local Covid teams during the pandemic.  She was on a temporary fixed purpose of employment from 11 November 2020 until 23 September 2022.

The Complainant submitted two complaints to the Workplace Relations Commission (WRC) which were received on 6 November 2024:

(a) breach of the Unfair Dismissals Act 1977

(b) penalisation under section 28 of the Safety, Health & Welfare at Work Act, 2005.

The Complainant submits that she was unfairly dismissed on cessation of her then temporary contract on 23 September 2022 and further that a refusal to redeploy her within the HSE was penalisation because of having an unreported accident in 2018, which resulted in a serious injury.

The Respondent rejects the complaints but also raised two preliminary issues:

(1)    The Respondent was incorrectly named.

(2)    The Respondent submits that that complainants are significantly out of time to the extent that the Adjudication Officer has no jurisdiction to hear the case.

Incorrectly Named Respondent:

The NAS is an operational division of the Health Service Executive (HSE). The Respondent submits it  does not have any legal existence separate from the HSE. The Respondent asserts the  Complainant’s employer was the HSE, not the Respondent. The Respondent contends that complaints cannot be brought against an entity that was not the Complainant’s employer.

Out-of-Time Complaints:

The date of the alleged dismissal was 23 September 2022 (the date of termination of the Complainant’s employment). The Respondent submits that this was more than six months before the date of submission of the complaint. The Respondent asserts that there is no reasonable cause that would justify the Complainant’s delay in bringing this complaint. Due to the fact that the complaints were lodged at the WRC on 8 November 2024, the Respondent submits that   complaints which relate to matters that occurred prior to 6 May 2024 are significantly out of time. The Respondent wishes to have it noted that the maximum period for an extension of time in both complaints is six months from the date the standard deadline expires (i.e. twelve months from the date of the alleged contravention), which in this case would be 6 November 2023.

The Complainant accepted at the hearing that her employment was terminated on 22 September 2022. She acknowledged in her submission accompanying her complaint form which was received on 6 November 2024 that her unfair dismissal claim was out of time. However, she requested that the WRC allow the penalisation claim to proceed, given the circumstances and the date on which she became aware of the seriousness of her injuries, which she claims resulted from an accident that was not reported by the Respondent  to the Health and Safety Authority at the appropriate time in 2018.

Incorrectly Named Respondent:

I accepted that the HSE, and not the NAS, is the correct respondent in this case. However, the Respondent on the day accepted that they ultimately represented the HSE for the purposes of this case. I am satisfied that no prejudice arose as a result of this error for the HSE therefore I amend the name of the Respondent accordingly.

Out-of-Time Complaints:

CA-00067200-001 Unfair Dismissal

Section 8(2) of the Unfair Dismissals acts 1977-2015 (the Act) refers to out of time complaints where it states

“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, or

(b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause, and a copy of the notice shall be given by the Director General to the employer concerned as soon as may be after the receipt of the notice by the Director General.”

The Complainant acknowledged in documents attached to her complaint form that this claim was out of time. Her fixed purpose contract came to an end on 23 September 2022. The Complaint was submitted over two years later therefore I find the complaint was out of time.

Penalisation under section 27 of  the Safety, Health and Welfare at Work Act 2005:

The Workplace Relations Act, 2015 (“the 2015 Act”), Section 41 provides at subsection:

 (6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates…

 (8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

I am satisfied that any penalisation that may have occurred can only be examined within the period of the complainant’s employment. The Complainant argued that the relevant date should be when she first became aware of the alleged injury. However, this is not a factor to be considered under the 2015 Act. In this case, the applicable date is a date in the six month period prior to 23 September 2023 . Therefore, I find that the complaint submitted on 6 November 2024 was made more than two years after any alleged penalisation. Accordingly, I find that the complaint is out of time.

CA-00067200-001 Unfair Dismissal:

For the reasons outlined above I find that the complaint was out of time, and therefore I do not have jurisdiction to hear the complaint.

Penalisation under section 27 of the Safety, Health and Welfare at Work Act 2005:

For the reasons outlined above, I find that the complaint was out of time, and I therefore do not have jurisdiction to hear the complaint.

Out of Time, No Jurisdiction