Complainant

Respondent

Parties

Luarena  Toland

St. Vincent's University Hospital

Representatives

Jason Murray B.L. instructed by Daniel Spring & Co Solicitors

 IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00065481-001

19/08/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00065481-002

19/08/2024

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

CA-00065481-004

19/08/2024

There were four complaints. The complaint under the Industrial Relations Act was withdrawn leaving complaints under The Protection of Employees (Fixed-Term Work) Act, 2003 and the Payment of Wages Act 

The complainant is a Human Resource professional who was employed by the respondent from June 15th, 2021, until her resignation on September 24th, 2024. From August 2022 until May 2024, she worked on a Fixed-Term contract.

She submits that she suffered less favourable terms and conditions of employment in her fixed-term position than a comparator who worked in a permanent position.

On July 25th, 2022, the complainant was appointed to a fixed-term position which continued until May 2024. She was assured that the fixed term would be continued after this date to cover a colleague’s maternity leave.

Her terms and conditions were less favourable than those of a comparable employee in that she did not enjoy the protections of the Grievance and Disciplinary policies as a result of a decision taken by John Keane (Director of Human Resources) to demote her and alter her terms of employment.

Arising from this, she sent an email containing her grievance to Mr Keane on March 21st, 2024. Had she not done so, she would not have been subsequently brought through a disciplinary process, and she has been Penalised within the meaning of the 2003 Act by Mr Keane.

The complaint under the Payment of Wages Act 1991 relates to the loss of wages for the period of May 19th, 2024, until September 23rd, 2024, in the amount of €2004.79.

On July 25th, 2022, she was informed that the fixed term would commence on July 11th, 2022, and cease on July 11th, 2023.

The term of her appointment was subsequently extended from July 2023 to May 2024. In February 2024, her line manager, Ms Mary Bracken, told her that her fixed term would be extended to cover the maternity leave of another colleague to which she agreed in early March 2024.

That colleague’s maternity leave commenced in August 2023, and she did not return until January 2025. This is important as the complainant’s fixed-term position was not scheduled to conclude until at least 2025.

Between August 2023 and March 2024, the respondent HR Department was tasked with aligning the job family and pay-scales in relation to the employment of Health Promotion Officers pursuant to a memo from the HSE National HR Director to all hospitals. This process included the complainant and other more senior colleagues. 

She was tasked with aligning the relevant employees to the correct pay scales and when this was done, she passed her findings to Ms Bracken for approval who passed the findings to Ms Keeney for approval, which was given.

Subsequently, it transpired that these approvals gave rise to industrial relations issues with national implications.  

On March 14th, 2024, the complainant was asked to a meeting with Mr Keane, HR Director which resulted in her beings demoted from her fixed-term position. The impact of this was that she was unable to attend work the following day and remained sick leave from March 15th, 2024, until June 19th, 2024.

On March 14th, 2024, Mr Keane wrote to the Complainant and this email highlights the significant less favourable terms and conditions of employment in her fixed-term role. Mr Keane stated, inter alia:

I refer to our earlier discussion and I wish to confirm that haven (sic) given matters careful and full consideration your current temporary appointment to Grade VII (HR Business Partner) will conclude on Friday 22nd, March 2024 and you will be assigned to a Grade V (HR Executive – HR Business Services) role…

The complainant does not know what “… careful and full consideration…” Mr Keane gave to this decision and the implementation of less favourable terms and conditions of employment to her fixed-term employment.

The Complainant wrote to Mr Keane on 21 March 2024

Following our meeting last Thursday … I have been left devastated that you would effectively demote me from my HRBP role …

I as advised just three hours in advance that you wished to meet me and assumed it was to discuss the contents of the Health Promotion report. I had absolutely no idea of the huge decision that had been made in my absence and furthermore received no notice or opportunity to bring a colleague … You were also very rude to me and gave me no opportunity to outline my side. ……

I would appreciate if you could provide me with the escalation point.

As my professional integrity is at stake, I feel it is very important that I respond to your decision and have my say. I have worked in the BP role since August 2022 and have an excellent relationship with the HODs and managers in my area. I think it is most unfair that the health promotion error is representative of my tenure in the role and I have been very distressed since the meeting last week.

This email outlined the lesser terms and conditions of employment that she enjoyed as a fixed-term worker and outlined the manner in which she was treated by the Director of HR. This email represents a protected act and any adverse actions taken by the respondent as a result of it, is an act of Penalisation.

It is important to note in the context of the complainant’s summary demotion from her fixed term position that the permanent position to which she was appointed in 2021 (that of HR Learning and Development Executive) no longer existed at the time of her summary demotion and she was assigned a role of HR Executive–Recruitment. The complainant had no experience or background in recruitment.

Penalisation

It is the Complainant’s case that arising from her email of March 21st, 2024, which constitutes a protected act for the purposes of the 2003 Act, she suffered penalisation.  

On May 2nd, 2024, Mr Keane wrote to the complainant and made six allegations against her, which he was to preside over as decision maker. As Director of HR, he knew the disciplinary process was flawed due to the absence of any fair procedures and due process.

Therefore, his actions were act(s) of penalisation, and he was conflicted due to the fact he was the subject of a complaint from the complainant, that he was her accuser and that he had ignored any investigation stage and brought the matter straight to the disciplinary level.

On June 11th, 2024, a disciplinary meeting was held between the complainant and Mr Keane at which she was accompanied by her FORSA representative. The minutes of the meeting note, inter alia, that:

BA expressed her concerns as to how LT had been moved out of her current position as Business Partner and back to her old position as Grave V with the following noted:-

- LT had already been penalised ahead of any investigation taking place and not given the right to reply.

-       Felt JK was impartial as involved in decision to move LT. Had objections to any other sanction being held, LT already being sanctioned prior to this meeting today. If an investigative disciplinary had taken place and JK had decided to move LT, that would have been his prerogative. This had all taken place ahead of disciplinary process, noted how principles of procedures are that mangers will not pre-judge an outcome, feel that this has already been done.

Importantly, the complainant stated:

LT noted how on a fixed term contract she felt she had not been treated the same way as an employee on a permanent contract, did not follow fair process. Felt humiliated when informed she was being moved back to her Grade V role. [emphasis added].

On 13 June 2024, Mr Keane issued his findings but while he made no finding against the complainant, he penalised her for raising issues relating to the unfavourable treatment she suffered when employed by way of the fixed- term contract.

No grievance meeting in relation to her grievance was ultimately held. On September 9th, 2024, an independent investigator was appointed. The complainant resigned from her position with effect from September 23rd, 2024, before the completion of the Investigation, some six months after raising her grievance.

But for her raising of the issues relating to the terms and conditions of her fixed-term contract, Mr Keane would not have brought her through the fundamentally flawed disciplinary process.

Evidence of the complainant

The complainant gave evidence on affirmation.

She confirmed that she commenced in the acting up position in August 2022 as a HR business partner as a replacement for a colleague who was on maternity leave. She outlined the duties of her role.

The first fixed term contract did not end in July 2023 as anticipated, and she just continued in the position. No new end date was set nor was there any discussion with her manager about the position. The colleague on maternity leave had been due to return in May 2024.

There was another discussion about a further extension, but no end dates were set, and she thought it could possibly run from May to September 2024. 

in relation to the project which gave rise to the difficulty she outlined that she had been assimilating people onto new salaries and when her work on this was done, she sent it to business services in February or March 2024 or approval.

She then learns that the HR director Mr. Keane had taken issue and was angry about the outcome and learned that her work on the project would be paused. She described how she had made contact with Beaumont hospital to check on her work and also had sought approval from senior colleagues.

However, the issue appeared to be that her conclusions had not been processed through the relevant committee which approved such matters before being implemented.

She described the grades of the other people involved in the supervising process which were above her level. On March 13th she was invited to meet Mr. Keane and was told that there was a serious issue and that she was going to be demoted to her substantive grade.

She  was not given any notice of this. Her response was that she had applied the applicable memo in good faith. Mr. Keane told her that it had caused a lot of trouble.

The  complainant said that she regarded how she had been treated in the process as completely unfair.

In response to a question from Counsel as to whether this could have happened to a permanent employee in the position, she said it could not have.

She also confirmed that she had no prior performance issues and refer to her e-mail to Mr. Keane on March 21st in which she asked for an escalation point. She described this as a query as to who would process her grievance.

She then went on sick leave until September the 6th and return to work at her substantive grade 5.

On May 5th she said that she had been invited to a disciplinary hearing, and she says that there should have been an investigation prior to this happening. She also felt that the invitation to the disciplinary hearing was a response to her making the grievance on March 21st.

She  says that on July 8th she did make a formal grievance but notes that in relation to penalisation she was the only person involved in the matter who was penalized in having her role at the acting up level terminated.

In cross examination she confirmed her substantive contract and accepted that the respondent had the right to terminate the acting up position. It was put to her that no investigation was needed into a matter before disciplinary proceedings unless there was serious misconduct.

However, she felt that some investigation was needed, and she said she did have the right to respond in relation to the disciplinary proceedings and to be represented

The Law:

In reliance on Maurice Power v Health Service Executive [2022] 33 E.L.R. 125, [2022] IESC 17, there is no question that the complainant was a fixed-term worker for the purposes of the 2003 Act.

A fixed term worker has been described by the Labour Court in Irish Museum of Modern Art v Stanley FTD146 (6 May 2014) as

 “… the defining characteristic of a fixed-term contract, or fixed-term employment, is that it is determined by an objective condition which is identifiable without reference to the view or perception or intervention of either party to the contract.”

Therefore, there is no question surrounding the complainant’s locus standi to maintain her claim(s). As a matter of law, the act(s) or omission(s) on the part of the respondent demonstrate that she had less favourable terms and conditions of employment during her period as a fixed-term worker.

Section 6 of the 2003 Act states, inter alia:

6.—(1) Subject to subsections (2) and (5), a fixed-term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee.

(2)Iftreatingafixed-termemployee,inrespectofaparticularconditionofemployment, in a less favourable manner than a comparable permanent employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.

…

(4) For the avoidance of doubt, the reference in this section to a comparable permanent employee is a reference to such an employee either of the opposite sex to the fixed-term employee concerned or of the same sex as him or her.…

(6)  The extent to which any condition of employment referred to in subsection (7) is provided to a fixed-term employee for the purpose of complying with subsection (1) shall be related to the proportion which the normal hours of work of that employee bears to the normal hours of work of the comparable permanent employee concerned.

(7)  The condition of employment mentioned in subsection (6) is a condition of employment the amount of benefit of which (in case the condition is of a monetary nature) or the scope of the benefit of which (in any other case) is dependent on the number of hours worked by an employee.

The less favourable treatment relates to her conditions of employment when she was employed by way of her fixed-term contract and the conditions imposed by Mr Keane.

It is clear that the conditions of the fixed-term role were less favourable insofar as it allowed the Director of HR to unilaterally remove her from her position, without any right of reply and she did not enjoy any right to basic fair procedures or due process.

This less favourable treatment would not have been suffered by a comparable permanent employee. As a matter of fact, it seems this less favourable treatment was not suffered by, her colleagues involved in approving the decision.

As noted by Des Ryan BL at [13.05] in Regan and Murphy’s second edition of Employment Law:

Clause 4 of the Framework Agreement, which is entitled ‘Principle of non- discrimination’, attempts to flesh out the first aim of non-discrimination. It provides:

In respect of employment conditions, fixed-term workers shall not be treated in a less favourable manner than comparable permanent workers solely because they have a fixed-term contract or relation unless different treatment is justified on objective grounds.

…

At paragraph [13.07] of Employment Law, it is noted that:

The twin objectives of the Framework Agreement find direct expression in the 2003 Act. Thus, s 6 of the 2003 Act confers an entitlement on a fixed-term employee not, in respect of his or her conditions of employment, to be treated in a less favourable manner than a comparable permanent employee, unless the less favourable treatment can be justified on objective grounds.

The question to be considered is if a comparable employee would have had the same terms and conditions (or lack thereof) imposed on their employment. It is respectfully submitted that the conditions of employment imposed on the Complainant were unquestionably of a less favourable standard than those of a comparable permanent employee.

Penalisation

13. Section 13 of the 2003 Act, states:

14. —(1) An employer shall not penalise an employee—

(a)    for invoking any right of the employee to be treated, in respect of the employee's conditions of employment, in the manner provided for by this Part, …

(2) For the purposes of this section, an employee is penalised if he or she—…

(b)  is the subject of any other action prejudicial to his or her employment.

The Complainant’s email of 21 March 2024, and her statement(s) during the meeting of 11 June 2024 show that she was invoking the right to be treated in respect of her conditions of employment in a manner required by the 2003 Act.

Particularly insofar as it is noted in the meeting of 11 June 2004 that the complainant

 “… noted how on a fixed term contract she felt she had not been treated the same way as an employee on a permanent  contract…”.

But for these comments, it is submitted that she would not have been subjected to the later disciplinary process of Mr Keane. A process that Mr Keane must have known was fundamentally flawed and in clear breach of the most basic principles of fair procedures and due process.

The actions of the respondent have a direct causal link to the protected act of the complainant and the complainant relies on the decisions in Toni & Guy Blackrock Ltd v Paul O’Neill [2010] ELR 21and the High Court case of Stobart Ireland Driver Services Ltd v Carroll [2013] IEHC 581in showing that the detrimental treatment suffered was a direct result of her complaintinrespectofhersafetyandhealthatwork.

That is to say, but for her protected act, Mr Keane would not have treated the complainant in the manner he did.

Payment of Wages Claim

The failure on the part to pay the complainant the level of remuneration she was entitled to in the position of HR Business Partner, Grade VII Officer is an unlawful deduction of the Complainant’s wages, as defined by the Payment of Wages Act, 1991.

If it be found by that the respondent treated her in a less favourable manner in unilaterally removing her from the position she held by way of a fixed-term contract, it is her claim that she has suffered an unlawful deduction of wages. Ipso facto she must therefore be successful in his claim pursuant to the 1991 Act.

She has been Penalised within the meaning of the 2003 Act and should be compensated with an appropriate amount of compensation. He complaint pursuant to the 1991 Act should be upheld and a determination made in her favour in the amount of €2004.79.

The respondent’s reliance on policies which it did not apply should be disregarded.

The complainant was subjected to a demotion and a diminution in circumstances that were attributable to her fixed-term status.

The complaints are a duplication of proceedings, and the complainant is seeking redress under several statutes contrary to the rule in Henderson v Henderson (1843) 3Hare100developed to prevent duplication of proceedings. And also, in Cunningham vIntel Ireland Limited [2013] IEHC 207 and other cases submitted.

The respondent says the claims are linked with the same facts at the centre of all claims in the instant case. there are no special circumstances that could permit the cases outlined to proceed simultaneously.

In May 2022, the complainant applied for the position of Grade VII was for the specified purpose of covering Maternity Leave in the Unit. She was appointed and commenced on July 11th, 2022.

The initial duration of the specified purpose cover was July 2022 until July 2023when the substantive post holder (ND) was due to return from maternity leave. She did not return then as expected and the complainant remained in the post on a specified purpose basis (e.g. Acting up to Grade VII) until the substantive post holder returned to work in May 2024.

An issue arose in her unit which came to the attention of the HR Director in March 2024 concerning a departmental re-grading process which was implemented in February 2024 by the unit without authorisation or approval.

A regrading of a group of workers was implemented by the Unit, with back pay (to May 2022) without the knowledge or approval of the HR Director or the Employment Control Committee.  This was a significant failure of well-established systems of governance and internal control.

Senior HR Management engaged with the group of workers and their union in relation to the ensuing Industrial Relations issues. The hospital commissioned an independent joint external review.

The HR Director,  John Keane, met the Complainant on March 14th, 2024 to advise that her temporary assignment to the role of Grade VII, HR Business Partner was being concluded and she would revert a Grade V within HR as he had previously written to the Deputy HR Director to advises he did not wish to return to Learning and Organisational Development in accordance with her substantive contract of employment.

The colleague (ND) for whom the complainant was covering for Maternity Leave was due to return to duty on the May 19th, 2024, and the complainant was advised that she would continue to be remunerated at the Grade VII until this date.

The complainant commenced certified sick leave on March 15th, 2024, and remained on sick leave until her return to work on 7th June 2024. She wrote to the HR Director on March 21st, 2024, regarding a number of issues.

The HR Director acknowledged this mail on March 25th, 2024, and advised of an Occupational Health management referral to obtain a recommendation in relation to engagement with the Complainant while she was on sick leave. An appointment was scheduled for April 15th.

The complainant wrote to the HR Director on April 24th, 2024, following her Occupational Health appointment and Occupational Health feedback was received by the HR Director on this date.

The HR Director wrote back to her on May 2nd, 2024, to advise that following the Occupational Health recommendation that she was fit to engage separate communication would issue in relation to a convening of a disciplinary meeting and that a meeting regarding the assignment to a Grade V role could be arranged on her return to work.

HR Director subsequently wrote to her on May 2nd, 2024, to advise of the convening of a meeting under the Disciplinary Procedure and set out the specific issues of concern to be addressed.  He also wrote to her on the same day saying that she would be progressing to half pay under the provisions of the Public Service Sick Pay Scheme with effect from May 6th, 2024

She replied seeking a re-scheduling of the Disciplinary Meeting and a further Occupational Health appointment E-mail exchanges from the May 30th, 2024, to June 4th, 2024, in relation to the complainant’s return to work on June 7th,andtheconveningofadisciplinarymeeting

She transferred to a Grade V role in the HR Recruitment team on June 10th, 2024, but remained on Grade VII salary until June 9th, 2024, while she was on sick leave. The Disciplinary meeting was rescheduled for June 11th, with her union in attendance and the outcome letter was issued on June 13th, 2024

She submitted a grievance to the HR Director on July 9th, 2024, which was acknowledged on the 11th and as the complaint related to HR Director it was referred to the Interim CEO for progression through the Grievance Procedure. She was advised that the CEO’s office will contact her directly.

The CEO advised that the Grievance should be heard by an External HR Consultant, and he forwarded details of the complaint to the external person on August 1st, 2024. 

The complainantadvised her Line Manager on September 12th, 2024, that shewould be resigningfromherposition,andherlastdateofservicewouldbeOctober 11th,2024

ProtectionofEmployees(Fixed-TermWork)Act, 2003

The term “fixedtermemployee”is defined in section 2 of the 2003 Act as follows:

““fixed-term employee” means a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event but does not include—

(a)  employeesininitialvocationaltrainingrelationshipsorapprenticeshipschemes,or

(b)  employees with a contract of employment which has been concluded within the framework of a specific public or publicly-supported training, integration or vocational retraining programme”.

Section 2 of the Act sets out that a fixed term contract may come to an end at the arrival of a specific date. In this case, the complainant held a permanent contract at a grade V level since September 2021 and was assigned a temporary appointment “for the purpose of providingtemporarycover” as outlined in a letter to the Complainant dated 25th July 2022. The letter also set out that “we expect this arrangement to continue until 11th July 2023 although this is not guaranteed”.

The temporary arrangement was extended beyond this date due to the absent employee in extending her own leave until 19th May 2024.

The respondent says that it had the right to cease the temporary cover arrangement in line with the contents of the aforementioned letter and that the temporary appointment was as prescribed, temporary in nature. The Respondent also submits there was no ambiguity between the parties as to whether this was a temporary or permanent arrangement.

It is not in dispute that on March 14th, 2024, a decision was made to cease the temporary appointment and return the complainant to her substantive Grade V post of which she held her permanent, substantive contract. She was provided with one week’s notice of the move back to her substantive role.

However, as the arrangement may have lasted until at least 19th May 2024 when her colleague was due to return, the respondent advised the complainant that she would continue to be remunerated at the Grade VII salary until 19th May 2024. She was in fact remunerated at the Grade VII salary longer than communicated and was paid at the higher salary grade up to and including 9th June 2024.

The cessation of the temporary cover was also outlined in a letter from Mr Keane to the complainant on 2nd May 2024.

The respondent is obliged to comply with the acting up arrangements as determined by the HSE in HSE HR Circular 017/2013 and the HSE’s Policy on Acting-Up in A Higher Capacity) provides that:

Review of Acting-up

“Service managers must review the acting-up arrangements on a monthly basis to assess the continuing need for acting-up and the suitability of the appointees to carry out the duties of higher post with the involvement/authorisation of Area Assistant National Director, HR and Area Assistant National Director of Finance.”

By application in a Section 38 entity, the transposition of this policy sanctions the continuation of acting up arrangements to be assessed by equivalent senior managers in the Respondent’s hospital.  The HR Guidance Document on the management of letters of Appointment informed by the HSE’s HR Circular 17/2013 provides guidance on the termination of a temporary appointment as follows:

“It is the responsibility of the line manager to ensure the temporary appointment ceases when a permanent appointment is made or if a decision to rescind the basis for the temporary appointment is made, i.e. post holder returns to post, decision to suppress the post, or an alternative to filling the post on a permanent basis. It is envisaged that such temporary appointments should not exceed twelve (12) months, however if a decision has been made to fill on a permanent basis, the temporary appointment can remain, until that process is concluded and permanent appointment made”.

There was no such agreement that she would cover a colleague’s (JF) maternity leave after May 2024 as claimed. At the time of her reverting to her substantive role, the respondent was restricted by an embargo on recruitment of healthcare and administrative employees working in this sector which was in advance of the publication HSE Pay and Numbers Strategy which was not published until July 2024. As such, any role that was vacant for any given reason was not permitted to be filled on either a temporary or permanent basis. This in turn meant there was no scope for the complainant to continue in any fixed term arrangement passed May 2024.

The respondent submits that the claim turns on whether tenure is a condition of employment within the meaning of Section 6(1). In defence of its position, the Respondent refers to Determination No. FTD 1017 (HSE Dublin Mid-Leinster –and- Eight Named Nurses) which references the ruling of Laffoy J in the case of Minister of Finance v Una McArdle [2-7] 18 ELR 165In this ruling, Laffoy J found that:

‘Section 6(1) only outlaws discrimination in relation to the fixed-term employee’s ‘conditions of employment’ as defined, which, as the Labour Court correctly recognised when dealing with the issue of the appropriate comparator in the context of Section 6, does not cover the duration of the contract’.

In depending on this ruling, the Labour Court in respect of the 8 named nurses stated:

‘In order to come within the ambit of Section 6(1) the impugned treatment must be in respectofconditionsofemploymentwithinthelegalmeaningoftheterm.For the reasons already outlined in this Determination the Court cannot accept that the circumstances in which a contract of employment can be brought to a conclusion can properly be regarded as a ‘condition of employment’.’

The respondent argues therefore that the complainant did not receive ‘unfavourable treatment’ within the meaning of Section 6(1) as tenure is not a condition of employment.  Section 10 of the Act states that: “An employer shall inform a fixed-term employee in relation to vacancies which become available to ensure that he or she shall have the same opportunity to secure a permanent position as other employees”.

In relation to this section of the Act, there were no further vacancies at this time of which to advise the Complainant, for reasons outlined above this post remained vacant for the full duration of Ms Flynn’s maternity leave. The Complainant did revert to her permanent substantive contract at grade V.

The complainant was not treated any less favourably than a comparable employee nor did she suffer any detriment to the terms and conditions that she enjoyed the benefit of during her time working in the temporary cover capacity. On the contrary the Complainant was remunerated with the higher grade in excess of the time period that she was required to discharge Grade VII responsibilities. In the interest of transparency, the Respondent confirms that notwithstanding the temporary arrangement that ceased on 25th March 2024, the Complainant continued to be remunerated in line with a Grade VII post holder until 9th June 2024. At no time during this period was the Complainant required to discharge the duties associated with a Grade VII post holder and as such the Respondent asserts the Complainant was in fact treated more favourably.

PaymentofWagesAct

No unlawful deduction of wages has occurred in line with the renumeration stated in the complainant’s contract. At no point has she received a salary below her contractual salary. She is arguing that there was a deficiency in payment of her wages due to her assumption that she would cover additional maternity leave.

The Payment of Wages Act, 1991, under section 5(6) states:

“Where (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion, […] then […] the amount of the deficiency […] shall be treated as a deduction made by the employer from the wages of the employee on the occasion”.

Thus, the important element to establish is what were the wages “properly payable” to the employee on “that occasion”. The Respondent contends that the wages “properly payable” to the employee were the wages as advised to the employee in the contract of employment. No deduction as defined in Section 5 of the Act has been made. Accordingly, no jurisdiction exists under the Payment of Wages Act 1991 for this claim to be heard.

ProhibitiononPenalisationofFixedTermEmployees

The complainant was fully aware that the temporary cover she was providing in a Grade VII capacity would cease in May 2024, she was placed back in her substantive Grade V post as per the agreement regarding the temporary cover, yet she continued to enjoy the conditions attached to the Grade VII post for a period of time after the acting up arrangement ceased. The temporary acting up arrangement provided for the cessation as determined by the Respondent. Furthermore, the cessation of the temporary arrangement is a condition of the acting up arrangement.

No penalisation occurred as she did not suffer any detriment on termination of the temporary arrangement.

She also alleges that she suffered penalisation due to being requested to attend a disciplinary meeting in relation to the management of regrading within a hospital department. Again, she suffered no detriment in action undertaken by the Respondent during or after the temporary arrangement.

Evidence of Respondent

Mr John Keane gave evidence on affirmation on behalf of the respondent. He said that he had been director of HR at the respondent for seven years and that it operated as a section 38 hospital.

He describes what led to the complainant’s demotion and said that she had not gone through the assimilation grading process properly and had misapplied the relevant HSE memorandum leading to very serious consequences for the hospital.

It had resulted in some individuals being regraded without approval. He also said that all of this had been implemented without his knowledge and that it was very distressing for all involved.

It had serious implications at national level as people had already been paid on the basis of the revised (unapproved) salaries and these monies had to be recovered. That required consultations with the relevant trade unions etc.

He described his meeting with the complainant on March 14th and his decision that she would revert back to her substantive grade as he said her contract was due to end in May.

He had the authority to do this and referred to the hospital policy on acting up arrangements, specifically paragraph 12 of that policy. He also relied on Department of Health circular 017/2013.

When the complainant went on sick leave her pay was maintained at the same level as when she had been acting up.  He denied that her role had changed fully on her return to work and said that some part of it had been retained.

He stated that he did not see a need for an investigation as serious misconduct was not being alleged. It was put to him that on the basis of his description of the outcome of the assimilation process it was hard to see how this did not constitute serious misconduct, but the witness stated that it was not an act of penalisation.

In response to questions he said that there had been informal counselling of other people involved but no disciplinary action.

In cross examination the witness confirmed that the complainant was regarded as a worker with a fixed term contract commencing in July 2022. He did not know of any approval to extend her initial assignment but accepted that there was some correspondence and that he had been told that she would be staying on.

He confirmed that he called the complainant to a meeting and that he had terminated the acting up arrangement but had not terminated payments at the higher level immediately.

He said this decision was not a sanction. Counsel for the complainant put to him that he could not have done this to a permanent employee. In relation to the provision for continuing monitoring of and acting up person the witness confirmed that he had not conducted the monthly reviews referred to in the policy.

It was put to the witness that in relation to the meeting on March 14th he had not given the complainant the right to respond which constitutes less favourable treatment. The witness accepted that this was the case but attributed this to the temporary status of the complainant.

The facts are set out clearly above and the chronology of events is not in dispute, although the interpretation of one key element is.

Essentially the complainant was appointed to an acting up position replacing a colleague who was on maternity leave, and this was then extended beyond that initially contemplated.

In due course an issue arose in relation to her performance of a specific project as a result of which she was demoted from her acting up position and returned to her substantive post.

(The respondent relied on ADJ 47696 in support of its case, in which a complainant was found not to have locus standi as a fixed term worker. The respondent’s witness in evidence accepted that the complainant was a fixed term worker, so I discount this as having no relevance to the complaint).

It is not disputed, including by the complainant that the issue giving rise to this was a serious one and that she was at fault, although she was not alone in the error. She accepted this in her correspondence with the respondent of March 21st, 2004. This correspondence has other significance to which I return.

Her complaints follow from this.

Protections of Employees (Fixed Term Work) Act complaints

There are two complaints under the Fixed Term Work Act.

The first is that her conditions in her fixed-term role were less favourable insofar as it allowed the Director of HR to unilaterally remove her from her position, without access to the Grievance machinery or basic fair procedures or due process.

Secondly, she says that she was penalised for making a complaint (the letter of March 21st, 2004) in being subjected to subsequent disciplinary action, and that she is due wages arising to the end of what would have been the contracted period of her acting up.

The question of the right of the respondent to terminate the acting up arrangement was addressed by the respondent in a reference to the letter of appointment of July 25th, 2022, which referred to the intended concluding date of the acting up period as not being ‘guaranteed’.

There was also reference to HSE HR Circular 017/2013 which requires health service managers to ‘review acting up arrangements on a monthly basis to assess the continuing need to carry out the duties at a higher level’

As the complainant pointed out, reliance on this was somewhat disingenuous, to put it no more strongly, as the complainant’s termination did not arise from any process of monthly review but directly flowed from the performance issue referred to above.

In my view these arguments do not provide sufficient cover for the respondent’s actions in respect of the manner in which it terminated the complainant’s assignment, and I return to this in my conclusions.

The spotlight then moves to what happened next.

A further specific complaint is that the respondent failed to provide the complainant with access to the Grievance machinery following her complaint of March 21st, 2024.

The respondent says that no grievance was received until July 9th, 2024 (dated the previous day and referred to here as the July 8th correspondence).

The complainant submitted above that ‘This email [of March 21st] clearly outlined the lesser terms and conditions of employment that she enjoyed as a fixed-term worker and outlined the manner in which she was treated by the Director of HR. This email represents a protected act and any adverse actions taken by the Respondent as a result of it, is an act of Penalisation.

The question is whether the email of March 21st can be taken to be the submission of a grievance.

It sets out the complainant’s understandable dissatisfaction with how she has been treated and contains a request the recipient of the letter, who was, after all, the respondent in any grievance, for the ‘point of escalation’.

She refers to the purpose of her letter as being ‘to respond to your decision’.

In her later, formal complaint dated July 8th, 2024, this is represented rather differently, and she states there.

I addressed the unfairness of this decision by email to you of 21 March 2024, in which I invoked the Hospital’s grievance procedure. I requested an escalation point in relation to my grievance. I did not receive a response to my query.

While it is true that she requested an ‘escalation point’ it is a good deal less clear that she ‘invoked the hospital’s grievance procedure’.

In my assessment of it, this is an attempt to retrospectively place an interpretation on the letter which is not supported by its actual content.

It is not sufficient to set out a selection of facts and presume that this will be interpreted as a grievance. The complainant, who is a HR professional should know this better than most.

The use of the ambiguous phrase ‘escalation point’ which may be a term of art in modern HR is odd in this context. There had been no prior action in the matter, so it was actually being initiated rather than escalated.

In any case, the term suggests (and she confirmed in her evidence) that she wanted the recipient of the letter to identify to whom she should take the matter next, thereby further undermining her claim that this letter represented the actual commencement of the grievance. On this construction she was simply making an inquiry as to who was the proper recipient of the grievance.

The complainant might have been better advised to use plain English to state that her letter was, in fact, invoking and initiating the Grievance procedure, as she subsequently sought to represent it in the July letter.

Therefore, I find that this correspondence in March could not reasonably be seen to have represented the triggering of the grievance machinery, despite the later attempt to represent it as such. By that time the complainant may have been regretting that she had not done so more explicitly, but her March correspondence stands as the record of what she actually said

This creates a difficulty for the second WRC complaint as the complainant has firmly linked them in a causal relationship.

There is further context in the evidence of the respondent witness where he set out the gravity of the error in which the complainant had been involved (although far from solely her responsibility).

Frankly, it would have been very surprising if the incident had been overlooked, although in the event the process did not lead to any sanction (although the complainant has said in her correspondence of July 8th that the action preceding this in demoting her was a sanction).

It is relatively easy to conclude that any such disciplinary action by the employer is attributable to the merits of the impugned performance, and not an act of retaliation, and it would have been a surprise had the respondent not taken some action.

Certainly, the suggestion that the respondent was motivated to do so only by the correspondence of March 21st is entirely unpersuasive and lacking in credibility. This is especially the case when that correspondence did not appear to the respondent (or to me) as a formal, or any, grievance. 

The complainant did submit a formal grievance on July 8th, and this is not in dispute and referred the complaints to the WRC on August 19th.

An investigator was appointed on September 9th, which while this delay is unsatisfactory it is not unusual, and the summer holiday period may have contributed something to it.

The complainant handed in her notice three days later.

I find therefore that having held that the complainant did not, in fact, as she subsequently sought to represent it, submit a grievance, this removes any link between that action and the subsequent disciplinary action. It is not a ‘protected act’ as has been submitted on her behalf.

In any event, it falls very far short of any ‘but for’ test submitted by the complainant in that I also find that the disciplinary action was initiated on the merits of the complainant’s actions.

The question then of the complainant’s claim for payment for the duration of the contract period brings us back to the fairness of the original decision and, specifically whether she, as a fixed term worker was treated less favourably than a permanent worker.

The context for this is the procedure that ought to have been followed rather than the specific action of demotion. For obvious reasons there is an intrinsic difference between the position of a person on a temporary, ‘acting up’ contract and a person who is not.

Specifically, the respondent did have some options to terminate the complainant’s acting-up tenure in a way that would not arise with a person on a permanent contract.

However, it is significant that it did not apply these mechanisms and had it done so it would have been a different matter.

There is no doubt on the basis of the evidence and submissions that the act of demotion was in response to the complainant’s performance, in respect of which she accepted responsibility in the letter of March 21st.

Therefore, it is not accurate to compare the respective positions of a full time and fixed term worker in relation to the specific issue of a demotion, as different considerations apply.

Rather the issue is what general principles should apply where an employer intends to impose some adverse or significantly detrimental action on an employee such as happened in this case.

They are very clear and well established.

There should be some prior notification of the intention to do so, the worker must be given some opportunity to be heard and to explain or offer argument in mitigation; these are the elementary fundamentals of fair procedure, and they apply to all employees.

There must also be some equity in the treatment of all involved. It appears that the other more senior employees who contributed to the problem had little more than a cautionary chat.

It is clear that the respondent assumed it was liberated from these burdens of fair procedure by the nature of the complainant’s temporary fixed term contract.

In that regard it is not difficult to find that it was the existence of that fixed term contract that was directly responsible for the manner in which the respondent gave effect to its termination.

As already noted, the respondent has relied on some of the terms of the complainant’s contract, and the general scheme governing acting-up, part-time arrangements; for example, and that the period of tenure was not guaranteed, or that it could review things on a continuing basis.

While one or more of these might have provided it with some defence if it had actually exercised any of those options; the fact that failed to do so speaks for itself. 

This further serves to accentuate the requirements that a person on a fixed term contract does not lose the right to fair processes as actually happened here.

I find on these facts this happened because the complainant was a part-time worker.

The Payment of Wages Act complaint.

The complainant has submitted that

 ‘If it be found by that the respondent treated her in a less favourable manner in unilaterally removing her from the position she held by way of a fixed-term contract, it is her claim that she has suffered an unlawful deduction of wages. Ipso facto she must therefore be successful in his claim pursuant to the 1991 Act.’

The Payment of Wages Act, 1991, under section 5(6) states:

“Where (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion, […] then […] the amount of the deficiency […] shall be treated as a deduction made by the employer from the wages of the employee on the occasion”.

The respondent has countered this by saying that the wages were those as advised to the employee in the contract of employment. And that no deduction as defined in Section 5 of the Act has been made, no jurisdiction exists under the Payment of Wages Act 1991 for this claim to be heard.

In my view there is no basis for holding that wages become properly payable in the circumstances set out by the complainant.

A right to statutory compensation may arise as provided for in the statute itself for a breach of that statute, but I find that the manner in which the respondent terminated the assignment, which I will address separately does not give a right to a continued payment of wages under a contract that has ceased to exist, even if it was ended unfairly.

In summary, turning specifically to the individual complaints I find as follows.

In relation to complaint CA-65481-001 under the Protection of Employees (Fixed Term Work) Act 2003 I find the complaint to be well founded and I award the complainant €7,500.

The complaint of penalisation complaint CA-65481-004 under the same Act is not well-founded.

For the reasons set out above the complaint under the Payment of Wages Act complaint CA-65481-002 is not well founded.

In relation to complaint CA-65481-001 under the Protection of Employees (Fixed Term Work) Act 2003 I find the complaint to be well founded and I award the complainant €7,500.

The complaint of penalisation complaint CA-65481-004 under the same Act is not well-founded.

For the reasons set out above Complaint CA-65481-002 under the Payment of Wages Act, 1991 is not well founded.