Complainant

Respondent

Parties

Mary Ann  Healy

Children’s Health Ireland  

Representatives

  Self-represented

 IBEC

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-00065468-001

17/08/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00065468-003

17/08/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00065468-006

21/08/2024

The complainant commenced employment with the respondent on 19 December 2022 in the role of Biochemist. She states that her employment ended on 15 July 2024. The complainant is alleging that she was unfairly dismissed.

The complainant states that when she raised a grievance about one of her line managers, her prospects of securing permanent employment at the respondent hospital were significantly affected. The complainant states that she operated within a toxic culture and working environment and received no support from management.

The complainant asserts that her specified purpose contract offered to her was not a genuine  specific purpose contract. She states that her contract acted more akin to an open-ended contract.  The complainant worked as part of the clinical laboratory service at the hospital.

The complainant states that following invoking a grievance about her line manager, her line manger took offense and the matter ultimately resulted in her dismissal. She states that the grievance caused her a lot of anxiety. The complainant states her dismissal notice from HR, on the 17 June 2024, stated: ‘As per the terms and conditions outlined in your Specified Purpose contract of employment (attached to this email), I am now writing to you to confirm the purpose of your contract has come to an end. As outlined in your contract, the purpose of this contract was to backfill the substantive post holder and upon completion of this specified purpose your contract will cease. As the substantive post holder is returning to their role, the purpose of your contract has now ceased’.

The complainant states that at no point during her employment was a ‘substantive postholder’ identified to her by name, gender or role in the laboratory. The complainant states that her employment had all the hallmarks of a permanent contract, in that, the lengthy recruitment process took almost 3 months, from application to start date. On acceptance of the job offer there were lengthy pre-employment checks. The complainant states that she spent many weeks preparing official documentation such as professional qualifications, birth cert, personal identification, providing proof of address, filling in forms such as New Employee Set-up Form, providing health records of vaccinations, health conditions and health history and records, a Garda vetting process and forms to complete for the Occupational Health Department (OHD). The complainant states that she had to receive multiple vaccinations which were requirements of the job.

The complainant states that she was employed along with two other Biochemists on the same type of contract and same grade and pay scale and to her knowledge, the other two Biochemists remain employed.

The complainant states that it was never expressed or implied by her line managers that she was backfilling for another staff member. The complainant states that it was only when she was told her contract had ceased that she was informed that she had been backfilling for someone who is returning.

The complainant states that herself and two other Biochemists were put on separate benches and trained on separate instrumentation and analysis. The complainant states that she was informed by management that the plan was that all three would rotate across the benches in the laboratory, however this did not occur.

The complainant states that she was required to work with an agency worker who trained her. The complainant claims that the agency worker’s attitude and demeanour was permanently unfriendly towards her. She states that the agency worker was very critical of her regarding how she carried out her duties. The complainant states that she had to take sick leave because of the stress she was under at this time. The complainant states that when she returned following sick leave she was trained by a senior medical scientist who excessively monitored her duties.

The complainant states that on 15 March 2023, she was invited for a 3-month probation review and promised a final review in 6 months. The complainant states that she found this odd and disconcerting as she was not given an initial performance plan or any goals and objectives since starting. The complainant states that she had only been given mandatory quality training that was done predominantly online with the aid of videos such as chemical safety training, waste management and hand hygiene.

The complainant states that at her review meeting, she was told that she had shown improvement over the last four weeks, but that she should listen more and not take things personally. The complainant states that she got an unfair review when her duties and responsibilities as a basic grade Biochemist and goals and objectives were not officially given to her. The complainant states that she reluctantly signed the review as she was anxious to further her career.

The complainant states that on 2 September 2023, her line manager informed the complainant that there has been a complaint made by the agency hire about her. The complainant was told ‘This is a warning’. The complainant asserts that this was unwarranted conduct, in that, she was not given the opportunity to respond in a fair and reasonable manner to the complaint.

The complainant states that in the third or fourth quarter 2023, she went to Ms W in HR to ask about the status of her contract. The complainant states that Ms W advised her to discuss the contract with her line management.

The complainant asserts that on passing her line manager in the corridor in early December 2023, she asked about her contract and was informed that her contract had been extended for 6 months. The complainant states that she then queried the extension with HR by email and a HR generalist Ms K responded on 12 December 2023 stating that the complainant’s contract is in place until 23 June 2024.

The complainant states that she had assumed that she had passed the probationary period. She states that she received nothing in writing justifying the grounds for a renewal of her fixed term contract and the grounds for failure to offer a contract of indefinite duration.

The complainant states that on 15 March 2024, she joined the Union so as she could get assistance if she needed help with a work-related issue.

The complainant states that her doctor certified her off sick from 15 to 23 April 2024 for work related stress and anxiety.

The complainant states that on 22 April 2024, she filed a grievance with HR about her line manager with regard to the manner in which she was being humiliated with regard to her work.

The complainant states that mediation was arranged but a resolution could not be found.

The complainant states that at a meeting 31 May 2024, she was informed that HR, after carrying out an investigation of the issues, was not going to uphold the complainant’s grievance. The complainant states that she was also informed that she had a right to appeal the outcome at Stage 3 of the grievance process.

The complainant states that from 4 to 7 June 2024, she was certified unfit for work due to work-related stress.

The complainant states that on 10 June 2024, she went to the HR department to seek clarity on her contract.

The complainant states that on Monday 17 June 2024, she was given notice of dismissal by email from Ms W in HR. The letter stated: ‘As the substantive post holder is returning to their role, the purpose of your contract has now ceased.’ The letter also provided 4 weeks’ notice as per the requirements of the complainant’s contract.

The complainant states that she sent a reply by email to HR expressing her concerns that the timing of the notice period is odd because it was around the same time that she was going formal with her grievance.

The complainant submits that management covered up her dismissal by using the excuse that she had been filling in for a staff member who was returning.

The complainant states that on 12 August 2024, she received correspondence stating that HR did not uphold her grievance because she is no longer an employee.

The complainant states that based on the sequence of events, she was unfairly dismissed.

Complaint under section 27 of the Organisation of Working Time Act

The complainant states that she did not receive her accrued 35.6 hours of annual leave from the previous year (April 2023 to March 2024).

The complainant further states that she did not receive payment for the four days of Saturdays rostered work (4 x 7 hours) 28 hours. The complainant asserts that management did not make it clear as to whether it would be paid into her salary or could be used as annual leave.

Complaint under section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 

The complainant states that the respondent is in breach of the legislation as it failed to offer her a written statement setting out the objective grounds justifying the renewal of a fixed-term contract.

The respondent states that the complainant commenced employment on 19 December 2022 in the role of Biochemist. She was provided with a Specified Purpose Contract of Employment which she duly signed on 12 December 2022. The complainant worked as part of the clinical laboratory service at the hospital.

On 17 June 2024, the complainant was given four weeks written notice that the purpose of her contract had come to an end, as the substantive post holder that she was employed to backfill had returned to their substantive post. The complainant’s employment ended on 15 July 2024.

The respondent states that the complainant’s role was created to temporarily replace Ms A who had been seconded to the role of Acting Senior Medical Scientist, to replace Mr B who went on a career break for 18 months from September 2022 to December 2023. It was submitted that approval and funding for the role was granted for a 15 – 18 month period in September 2022, at the time Mr B began his career break. It took until December 2022 to complete the recruitment process for the role.

The respondent states that on 7 December 2023, the complainant contacted HR by email to clarify when her contract was due to expire. She advised HR that she believed her contract was for just one year, but that her manager had said it was for 18 months. HR responded to the complainant by email on 12 December 2023 advising that her contract was in place until 23 June 2024, the time at which the funding approved for the role would run out.

It was submitted that on 22 April 2024, the complainant raised a grievance against her line manager Ms C, Chief Medical Scientist, alleging that Ms C had humiliated and undermined her in an alleged incident on 15 April 2024. The complainant advised that her Union representative would be supporting her throughout the process. The respondent asserts that as the grievance involved her line manager, the grievance commenced at stage two of the respondent’s grievance procedures and was heard by Ms. D, Laboratory Manager. The complainant provided Ms D with a detailed account of her grievance by email on 22 April 2024. Ms. D set up a meeting with the complainant and her Union representative on 26 April 2024. At that meeting the complainant informed Ms. D that the outcome she required to resolve her grievance was: (i) an apology from Ms C in front of her colleagues and (ii) a permanent contract and (iii) a pay increase.

It was submitted that following this meeting, Ms D asked Ms C for her version of events. Ms C chose to provide a written account by email dated  29 April 2024. The respondent states that having investigated the matter and considered both parties submissions, Ms D decided that the most appropriate course of action to resolve the grievance was to set up mediation between the parties. A mediation meeting was held on 13 May 2024, which was attended by the complainant, her Union representative and Ms C. However, a resolution could not be found at mediation.

The respondent states that Ms D emailed the complainant again on 24 May, requesting a further meeting with her, in an effort to resolve any outstanding matters. A meeting was convened for 31 May 2024 at which Ms. D informed the complainant that she was unable to uphold her grievance as it was her opinion that Ms C had followed the correct procedures with respect to the incident on 15 April, noting it was most unfortunate that the complainant’s feelings were hurt in the process. The respondent states that Ms D confirmed the outcome of the grievance at stage two by email on 11 June 2024, whilst informing the complainant of her right to appeal the outcome to stage three.

The respondent asserts that on 17 June 2024, the complainant was issued written notice that her specified purpose contract would come to an end in four weeks’ time, on 15 July 2024 as the substantive post holder was due to return to her role. On 18 June 2024, HR contacted the complainant by email and requested that she complete the online leaver’s process so that any annual leave or expenses due to her could be sent for approval and subsequently paid in her final pay. The respondent states that the complainant chose not to complete the on-line leavers’ process as the online form she was asked to complete was called a resignation form.

The respondent states that on 18 June 2024, the complainant appealed the outcome of her grievance at stage three of the respondent’s grievance procedures. The stage three appeal was heard by Ms. E. Ms E met with the complainant and her Union representative on 17 July 2024. During the meeting the complainant’s Union representative raised the matter of the complainant’s contract and how its termination could potentially be construed as victimisation for having taken the grievance. Ms E highlighted the nature and content of the complainant’s contract to her Union representative which he accepted as being standard practice under the circumstances. Following this meeting, a protracted dispute developed over the nature and content of the meeting minutes, which significantly delayed an outcome being issued. The respondent states that Ms E met with Ms C on 27 June 2024 as part of the grievance process to get an understanding of her version of events.

The respondent states that the complainant’s employment ended on 15 July 2024.  The respondent states that having duly considered both parties submissions, Ms E issued a formal outcome to the complainant on 12 August 2024. Ms E held that the respondent was “not in a position to uphold your grievance as you are no longer an employee”. The  complainant was offered the right to appeal this outcome at stage four of the grievance procedures but chose not to do so.

Unfair Dismissal CA-00065468-001

The complainant alleges that she was unfairly dismissed when her employment contract came to its natural end on 15 July 2024. The respondent refutes this allegation in its entirety as the complainant’s employment contract was for specified purpose, the purpose for which was an express term of her signed contract of employment and her dismissal consisted only of the expiry of that purpose. Therefore, the Unfair Dismissals Act does not apply.

The complainant was employed on a fixed term contract, in particular a specific purpose contract which she duly accepted and signed on 12 December 2022. A specific purpose contract is defined at section 8 of the Protection of Employees (Fixed-Term Work) Act 2003 as one which terminates upon,

(b)   completing a specific task, or

(c)   occurrence of a specific event.

Section 8 of the Protection of Employees (Fixed-Term Work) Act 2003 stipulates that the employee must be informed in writing of the “objective condition” determining the contract, in this case that being “the occurrence of a specific event”.

The complainant’s contract of employment which she signed on 12 December 2022 states in bold, underlined letters on the front page that it is in fact a “Specified Purpose Contract”. Furthermore, on page two, section 3, under term of employment, it states: “The purpose of this contract is to backfill the substantive post holder. Upon completion of this specified purpose your contract will cease.”

The respondent submits that the contract also states clearly at section 3 that:

“The Unfair Dismissals Acts 1977 to 2007 shall not apply to the Employees dismissal consisting only of the expiry without renewal of the fixed term of this agreement”.

The respondent submits that there can be no doubt that the contract in force at the time the complainant was dismissed was in fact a fixed term, specified purpose contract and that the complainant ought to have been acutely aware of this, having signed the contract before commencing her employment.

It was submitted that the complainant clearly knew that she did not have a permanent contract of employment when she enquired from HR on 7 December 2023 as to when her contract was due to end. In fact, the respondent confirmed in response to her request that her contract would expire in or around the end of June 2024.

The respondent states that in the case Athlone Institute of Technology and Brendan Hanniffy FTD1117the Labour Court made the following comments on fixed-term contracts

“A fixed or specified purpose contract is generally understood as one the duration of which is limited but incapable of precise ascertainment. Such contracts are frequently used for the purpose of excluding the application of the Unfair Dismissals Act 1977 – 2005 and it is noted that the contract in this case contains such an exclusion. An example of a specified purpose contract is one entered into to provide cover for a named employee who is absent on sick leave or to work on a project of road construction (Dismissal Law in Ireland, Mary Redmond, at 22.73).

In this case the Labour Court also stated;

“The intentions of the parties to the contracts concluded in January 2008 must be ascertained from the language used in the contracts and from the circumstances prevailing at the time. The import of the language used, in its ordinary and natural meaning, was that the employment would continue for as long as the Respondent required the services the Claimants were contracted to provide.”

It was submitted that the complainant was employed in the temporary role of Biochemist to backfill a Medical Scientist position that had had been temporarily vacated when Ms A was seconded to backfill the role of Senior Medical Scientist, vacated by Mr B, who was taking a career break from September 2022 to December 2023. Funding was secured for a 15 to 18 month period which allowed the complainant to be retained for this period from the time she was hired in December 2022.

It was submitted that the complainant’s personnel record shows that she was temporarily recruited into the permanent position numbered “50210856”. The role record for “50210856” shows that Ms A returned to that role on 16 July 2024, immediately thereafter the complainant’s contract was terminated. The respondent therefore submits that the complainant’s employment was terminated purely because the person she was hired to backfill returned to her substantive post and the contract expired purely by virtue of its specified purpose. The respondent submits that this claim in therefore unfounded and should fail.

Organisation of Working Time - CA-00065468-003

It was submitted that the complainant alleges that she did not receive 35.6 hours of annual leave accrued during the year April 2023 to March 2024. She also alleges that she was not paid for four Saturdays or 28 additional hours that she worked but has provided no further details regarding same.

The respondent states that as per standard procedures, HR contacted the complainant by email on 18 June and requested her to complete the online leavers form (entitled resignation form) so that any annual leave or other entitlements due to her could be approved and paid in her final pay. The respondent asserts that as outlined in the complainant’s WRC complaint form, she decided not to complete this request as she found it “very hurtful and further added to my humiliation”. The respondent therefore legitimately believed that there was no outstanding leave or pay due to the complainant at that time.

Annual Leave

It was submitted that on 9 August 2024 the complainant contacted the respondent by email alleging that she had carried over 35.6 hours of annual leave from 2023 that had gone unpaid. The complainant was again asked to complete a leaver form to assist enquires but refused to do so. It was submitted that subsequent investigations during August 2024 showed that the difference between annual leave accrued during her period of employment and annual leave paid was 2.66 hours. The total of 2.7 hours, amounting to €64.31 was subsequently paid to the complainant on 26 August 2024 as per her payslip dated 26 August 2024.

It was submitted that further enquiries conducted during the course of this investigation uncovered that the complainant did in fact have 42 hours of time off in lieu (TOIL) carried over from 2023/2024, a process which is recorded manually by managers and not on the main HR system. The complainant used 7 of these hours on 5 May 2024 and was therefore still entitled to 35 of these hours at the time her employment was terminated. The complainant was notified in writing of this error on 29 October 2024 and subsequently paid the outstanding amount on 31 October 2024. The respondent reiterates that had the complainant completed the leaver form as requested by the respondent, this error could have been highlighted and rectified earlier.

Non-payment for Saturdays

The respondent states that complainant has alleged that she was not paid for four Saturdays worked but has failed to state when this alleged illegal deduction was made from her wages. The respondent submits that such a claim ought to have been made under section 6 of the Payment of Wages Act, 1991 and that this claim should therefore fail on that basis.

The respondent states without prejudice to the forgoing, on foot of this claim, it conducted a thorough review of all Saturdays worked by the complainant during the course of her employment. It was submitted that employees at the respondent are normally given TOIL for any Saturdays worked, which they usually agree to take within the following four weeks. It was found that the respondent had indeed worked four Saturdays for which she was entitled to TOIL, but had not taken them within the prescribed timeframe, those being: (i) 10 February 2024 (ii) 6 April 2024 (iii) 4 May 2024 and (iv) 13 July 2024. The hours worked on 10 February are included in the TOIL carried over from 2023/2024 which were subsequently paid to the complainant on 29 October 2024 as TOIL outstanding at time of termination. The remaining three days (21 hours) were paid in the complainant’s final pay on 29 July 2024. The respondent states that it has paid all monies owed to the complainant and therefore submits that these claims are unfounded and should fail.

Protection of Employees (Fixed-Term Work) Act  CA- 00065468-006

The complainant has alleged that the respondent failed to offer her a written statement setting out the objective grounds justifying the renewal of a fixed term contract and failed to offer a contract of indefinite duration. The respondent refutes these allegations as the complainant was employed under a specified purpose contract for the entirety of her employment, which was not renewed, nor did circumstances arise that warranted the offer of a contract of indefinite duration.

The respondent states that the complainant was employed on a fixed term contract, in particular a specific purpose contract which she accepted and signed on 12 December 2022. A specific purpose contract is defined at section 8 of the Protection of Employees (Fixed-Term Work) Act 2003 as one which terminates upon,

(b)   completing a specific task, or

(c)   the occurrence of a specific event.

Section 8 of the Protection of Employees (Fixed-Term Work) Act 2003 stipulates that the employee must be informed in writing of the “objective condition” determining the contract, in this case that being “the occurrence of a specific event”. It was submitted that the complainant’s contract of employment states that it is in fact a “Specified Purpose Contract”. It further states on page two, section 3, under term of employment, the objective condition determining the contract, that being:

“The purpose of this contract is to backfill the substantive post holder. Upon completion of this specified purpose your contract will cease”

The respondent submits that the objective condition determining her employment contract was in place from the time the complainant  was employed on 19 December 2022 until it ended on 15 July 2024. At no time during this period was the contract renewed or extended. This was confirmed to the complainant in writing on 12 December 2023 on foot of her request. Section 8(2) of the Act state with respect to renewals:

(2) Where an employer proposes to renew a fixed-term contract, the fixed-term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal.

It is the respondent's position that there was no renewal of the complainant’s employment contract and therefore this section does not apply.

Unfair Dismissal CA-00065468-001

Under section 2 of the Act, an employee engaged under a fixed-term or specified purpose contract will not fall within the remit of the legislation where their employment ends as a result of the expiry of that contract. Having carefully examined this complaint, I note that based on the contract signed by the complainant, section 3 states that: “The Unfair Dismissals Acts 1977 to 2007 shall not apply to the Employees dismissal consisting only of the expiry without renewal of the fixed term of this agreement”.

I note that the complainant was employed in the temporary role of Biochemist to backfill a Medical Scientist position that had had been temporarily vacated when Ms A was seconded to backfill the role of Senior Medical Scientist, vacated by Mr B, who was taking a career break from September 2022 to December 2023. I further note that funding was secured by the respondent for a 15 to 18 month period which allowed the complainant to be retained for this period from the time she was hired in December 2022.

Based on records submitted by the respondent, I note that the complainant’s personnel record shows that she was temporarily recruited into the permanent position numbered “50210856”. The role record for “50210856” shows that Ms A returned to that role on 16 July 2024, immediately thereafter the complainant’s contract was terminated.

Based on the foregoing, I find that the within complaint of unfair dismissal is not well founded. I find that the complainant was not unfairly dismissed.

Organisation of Working Time  CA-00065468-003

Having carefully examined the claims under the Organisation of Working Time Act, I find that the complainant has not established a breach of the legislation. Based on the documentation and records submitted by the respondent, I find that the complainant was provided with her entitlements under the Organisation of Working Time Act. Accordingly I find that this complaint is not well-founded.   

Protection of Employees (Fixed-Term Work) Act CA- 00065468-006

A specific purpose contract is defined at section 8 of the Protection of Employees (Fixed-Term Work) Act 2003 as one which terminates upon,

(b)   completing a specific task, or

(c)   the occurrence of a specific event.

Section 8 of the Protection of Employees (Fixed-Term Work) Act 2003 stipulates that the employee must be informed in writing of the “objective condition” determining the contract, in the within matter that being “the occurrence of a specific event”.

I note that the complainant’s contract of employment states that it is a “Specified Purpose Contract”. It further states on page two of the contract, the objective condition determining the contract, that being:

“The purpose of this contract is to backfill the substantive post holder. Upon completion of this specified purpose your contract will cease.”

Based on the evidence heard I find that the objective condition determining the complainant’s employment contract was in place from the time the complainant was employed on 19 December 2022 until it ended on 15 July 2024. I am cognisant that at no time during this period was the contract renewed or extended. In this regard, I note that the complainant contacted HR on 7 December 2023 to clarify when her contract was due to expire wherein she advised HR that she understood her contract was for just one year. HR responded to the complainant on 12 December advising that her contract was in place until 23 June 2024.

Section 8(2) of the Act states with respect to renewals:

(2) Where an employer proposes to renew a fixed-term contract, the fixed-term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal.

Based on the evidence presented, I find that there was no renewal of the complainant’s employment contract and in those circumstances, this section is not applicable.

On the basis of the foregoing, I find that that the complainant has not established a breach of the Protection of Employees (Fixed-Term Work) Act and therefore her complaint fails.

Unfair Dismissal CA-00065468-001

This complaint is not well-founded. I find that the complainant was not unfairly dismissed.

Organisation of Working Time  CA-00065468-003

This complaint is not well-founded.

Protection of Employees (Fixed-Term Work) Act CA- 00065468-006

This complaint is not well-founded.

Unfair Dismissals Acts, Organisation of Working Time Act, Protection of Employees (Fixed-Term Work) Act