Worker

Employer

Anonymised Parties

A Worker

A Support Services Organisation

Representatives

  Self-Represented 

 Self-Represented

Act

Dispute Reference No.

Date of Receipt

Section 13 of the Industrial Relations Act

IR - SC - 00003996

24/03/2025

The worker submitted Employment Rights Complaint IR - SC – 00003996 Receipt Date: 24/03/2025 to the Commission to the effect that he had been unfairly dismissed, and he had not 12 months service. His complaint was referred und the Industrial Relations Acts.

The Worker completed an interview with the Employer in December 2024 and was subsequently invited to attend in‑person training in January. Prior to attending the training, he was instructed to complete a number of online training modules.

The Worker attended an interview with The Employer on 6 January 2025 via Microsoft Teams and completed an English comprehension test. On 13 January 2025, the Worker completed the required online training and was advised that an invitation to attend in‑person training would follow.

On two dates in January 2025, the Worker attended and completed the Employer’s on‑campus training. During the onboarding process, the Worker was instructed to apply for a Public Services Card, complete Garda vetting, and undergo a Fit‑to‑Work medical examination. The Worker attended a doctor, paid €35 for the examination, and submitted the medical report as requested.

On the 29 January 2025, the Employer issued the Worker with a formal Contract of Employment for the position of Home Support Worker. The contract was signed by both parties and specified that employment would commence on 15 February 2025 or upon allocation of the first assignment. At this stage, Garda vetting was understood to be the only remaining step before commencement of employment.

Based on this information, the Worker informed his current employer that he had secured new employment. His employer then recruited a replacement for him, whom the Worker began training. During this period, he also submitted all documentation requested by the Employer, applied for a PSC card as instructed, and obtained a Fit to Work certificate. He was awaiting Garda vetting to be finalised.

In March, the Worker received confirmation that his Garda vetting had been completed. He then contacted the Employer to ask when he could begin work. He was informed that his application had been marked unsuccessful due to his performance during training.

The Worker contacted the hiring team by phone and explained his situation. He was told that the Dublin hiring team would contact him on 7 March. As of the present date, he has not received any further communication.

As a result of relying on the signed contract, the Worker gave notice to his employer and on learning of his new situation he contacted the employer for his  original porter role, but this  was no longer available, as it had been filled. The employer offered an alternative position in housekeeping. This role involved more physically demanding work, reduced weekly hours (34–35 instead of 38–39), and a loss of the previous position’s status. The Worker also incurred the €35 medical examination fee as part of the Employer’s onboarding requirements.

The Worker submits that the Employer’s actions—issuing a signed contract, requiring extensive onboarding steps, and subsequently withdrawing employment immediately after Garda vetting—led to financial loss, reduced working hours, and detriment to the Worker’s employment situation.

The Worker seeks: • that the complaint be upheld, • a recommendation for appropriate compensation, • reimbursement of the €35 medical cost, and • any further recommendations the Adjudication Officer deems appropriate.

The Employer sets out their position in relation to a complaint of Unfair Dismissal brought by the Worker . According to the Employer , the Worker  was never an employee, did not commence work, and was not dismissed. The Worker is said to have participated in a structured recruitment process but did not progress beyond a mandatory pre‑employment training stage.

The Employer states that a conditional contract of employment was issued to the Worker in error, and that this administrative oversight did not result in an employment relationship being formed.

The purpose of the submission was to provide a structured explanation of the Employer’s operations, recruitment procedures, the timeline of the Worker’s application, the recorded training outcome, and the administrative error that occurred.

The Employer submits that, in these circumstances, Unfair Dismissal legislation does not apply.

Employer Company and Regulatory Context

The Employer is described as a regulated home‑care provider delivering services to elderly and vulnerable individuals. The Employer  operates under arrangements with the HSE and complies with standards relating to safety, training, and quality of care.

Many service users require assistance due to mobility limitations, chronic medical conditions, cognitive or sensory impairments, or communication difficulties. Home Support Workers frequently work alone in clients’ homes and are required to communicate effectively, follow instructions accurately, and perform physical care tasks safely. These requirements form the basis of the Employer’s recruitment and training processes.

Overview of the Complaint and the Employer’s Position

The Worker’s Unfair Dismissal complaint relates to events following two days of classroom‑based training completed on 21 and 22 January 2025. According to the Employer, the Worker did not meet the required standard at this training stage and was recorded as unsuccessful. The Employer states that this outcome was documented but was not communicated to the Worker at that time.

Subsequently, a conditional contract of employment was issued to the Worker due to a clerical mistake. The Employer submits that the contract was issued in error and that the Worker had already been assessed as unsuccessful prior to its issuance. When the Worker later sought an update, he was informed of the unsuccessful training outcome and the error relating to the contract. The Employer maintains that the Worker did not progress into employment and therefore could not have been dismissed.

Recruitment Process for Home Support Workers

The Employer outlines a structured, multi‑stage recruitment process intended to ensure fairness, consistency, and compliance with regulatory standards. Key steps include:

• application and screening,
• interview,
• mandatory online training,
• mandatory classroom‑based practical training,
• induction and supervised shadow shifts, and
• allocation of clients and commencement of paid work.

A candidate becomes an employee only after completing all mandatory training, undertaking induction and shadow shifts, being assigned work, and being registered on payroll. Candidates who do not meet the required standard at any mandatory stage do not progress further.

Worker’s Application and Recruitment Timeline

The Worker applied in December 2024 and was invited to an initial screening interview, which occurred on 6 January 2025. He subsequently completed online training and was invited to classroom‑based practical training, which took place on 21 and 22 January 2025 at the Employer’s Santry location.

Throughout this period, according to the Employer, the Worker remained a recruitment candidate and had not commenced employment.

Purpose of Classroom‑Based Practical Training

The Employer states that the classroom‑based training is a mandatory pre‑employment assessment used to determine whether candidates meet the required standards to progress to induction and shadow shifts. Due to the nature of the Employer’s services, particular emphasis is placed on communication skills and safe patient handling practices. These competencies are assessed by qualified trainers applying standardised criteria.

Training Assessment Outcome

At the conclusion of training on 22 January 2025, the trainer assessed the Worker as unsuccessful. According to the Employer, the training pack recorded concerns regarding the Worker’s communication skills, including difficulty understanding instructions and responding appropriately, as well as concerns about safe patient handling practices. The trainer concluded that the Worker did not meet the standard required to proceed and that progressing further could pose a safety risk.

Administrative Error: Conditional Contract Issued

On 29 January 2025, a conditional contract of employment was issued to the Worker. The Employer states that this occurred due to an administrative error by a junior staff member who did not check the training assessment records. The Employer acknowledges the error and states that it recognises the confusion caused but maintains that the error did not alter the recorded training outcome or the fact that the Worker had not met the criteria to progress.

10. Why the Worker Was Not an Employee

The Employer submits that no employment relationship arose. The Worker was not invited to induction, did not attend shadow shifts, was not assigned clients, was not allocated hours, was not placed on payroll, and did not receive payment. The Employer states that the administrative issuance of a conditional contract does not confer employee status where mandatory pre‑employment requirements have not been met.

Communication with the Worker

On 4 March 2025, the Worker contacted the Employer seeking an update. The Employer states that the Worker was informed that:

• he had been deemed unsuccessful in the January training assessment, and
• the conditional contract had been issued erroneously.

The Employer acknowledges that earlier communication would have been preferable and identifies this as a process improvement point.

Conclusion

According to the Employer, the complaint arises from a misunderstanding linked to an administrative error. The Employer maintains that the Worker did not progress beyond a mandatory pre‑employment assessment stage, did not commence work, and was therefore not dismissed. While the Employer acknowledges the communication oversight, it submits that the essential facts remain unchanged and that no employment relationship existed. The Employer therefore requests that the Unfair Dismissal complaint be dismissed.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

Section 13

Section 13 of the Industrial Relations Act 1969 provides a statutory mechanism for the investigation of trade disputes by a WRC Adjudication Officer. The section applies only where a trade dispute exists or is apprehended, and it does not extend to complaints concerning statutory employment rights.

The Industrial Relations Acts defines an “employer” as any person employing a worker and a “worker” means any person who is or was employed, “trade dispute” means any dispute between employers and workers which is connected with the employment or non-employment, or the terms or conditions of or affecting the employment, of any person.

In accordance with section 13, the function of the Adjudication Officer in such matters is to investigate the dispute and, where it remains unresolved, to issue a recommendation setting out their opinion on the merits.

Any recommendation issued under this section is not legally binding on either party. The statutory framework makes clear that the recommendation carries persuasive value only, and its implementation relies on the parties’ voluntary compliance.

The non‑binding nature of recommendations under section 13 reflects the distinction between trade disputes and statutory employment‑rights complaints. Whereas statutory complaints may give rise to legally enforceable decisions, section 13 procedures concern matters of industrial relations and are designed to support dispute resolution rather than enforce legal entitlements.

Present Dispute

Accordingly, in the present matter—which falls properly within the scope of a dispute rather than a statutory employment‑rights complaint—the role of the Adjudication Officer is confined to issuing a non‑binding recommendation under section 13 of the Industrial Relations Act 1969.

Contract

The facts in this dispute are not contested, even if their outcome and interpretation is disagreed. The Worker was offered a contract, however erroneously, by an agent of the Employer and the worker complied with the signing obligations.

It was put to me that the Worker had failed to complete the training on manual handling and communication successfully and on that basis should not have been offered anything in the way of a contract.

The contract itself does contain elements that denote it as conditional at s11 with regard to references and in this case, it was not that there were poor references, there were none sought at all.  S13 of the contract  also introduces a condition prior to the effect of the contract that training was to be completed successfully. The Worker pointed out the contract was offered post training and prior to being told he had not completed it satisfactorily.

The Contract at s3 does not specify hours of work and has a similarity to a zero-hours contract as it offers no set hours, no obligation to provide hours and no obligation to accept hours offered without the obligation to be available.

Employer Error

All of this arises from an admitted error by the Employer for which they have apologised. What is clear to me is that an error has occurred on the part of the Employer and the Worker has relied upon it to some degree. It is questionable as to how much reliance he should have placed on it given the lack of defined hours contained, but he has been misled, even if there was never any guarantee of any work at all in the literal reading of the contract.

On the matter of defining the relationship, a contract was offered (erroneously) and accepted (however poorly advised) by the Worker, so a relationship appears to exist to my mind. However, the ability to offer the Worker hours is seriously inhibited by the clauses of the same contract and some statutorily defined  matters and other matters related to the Contracting body (HSE et al) impossible. Further the lack of definitive hours is a further difficulty to describe any losses incurred.

Unfair Dismissal

The matter cannot be properly called an unfair dismissal, certainly within the meaning of the 1977 Act, and in any event the Worker has not the required service to qualify for relief under that Act in the circumstances put to me.  Further, it is not my place to advise either party of the law outside of the one referred under. My task is to make a recommendation on settling, if I think it possible,  the dispute and I am of the view that there is, or was briefly, a contractual relationship, but this was immediately frustrated by the lack of successful training that was always set  out by the Employer.

I am of the mind that  the following has been asked by the Worker:

·         that the complaint be upheld,

·         a recommendation for appropriate compensation, reimbursement of the €35 medical cost,

·         any further recommendations the Adjudication Officer deems appropriate.

I must point out that I do not have the ability to uphold a complaint in this instance. I may only make a recommendation for the resolution of the dispute, to the extent merited by the facts.

I am mindful that the Worker has engaged in a process which has yielded no outcome for him, and that—on the facts—it had little realistic prospect of success. Given that the Worker has suffered some loss in terms of reduced hours in his current employment after giving notice, I consider it appropriate to make a recommendation acknowledging this. However, it is not possible to compute such losses where the hours under the disputed contract were undefined, were contingent on successful training, and where probation might not have been completed. The contract is, in effect, entirely frustrated. Similarly, I cannot reliably calculate any loss connected with the Worker’s present employment.

Taking all of the above into account, I have fixed on a figure of €300.00, which seems just and equitable in all the circumstances.

Conditional Employment Contract