Department of Social Welfare error in employment issue
Dispute over offer of employment—remedy available under Employment Contracts Act— Ombudsman exercised discretion under s 130(a) to investigate—employment offer reinstated
The complainant was a third year University student who had another year’s study to complete for her degree and would not receive a bursary for that year. In September she had responded to a Department of Social Welfare (DSW) advertisement for temporary employment and in her initial letter had made it quite clear to the department that if successful, she could not take up a position till after her last University examination on 11 November.
She was interviewed and was asked three times whether she could start work on 14 October. She replied no, and repeated her position. She alleged that later she had received a telephone call offering her the position and was told by the DSW officer she could start work on 14 November. However, the department’s letter of 1 October offering her a position stated that if she accepted she would be required to commence on 29 October. Although the student could have taken the dispute to the Employment Tribunal, the Ombudsman decided to investigate the complaint because:
The Tribunal could not mediate the dispute until late November or early December;
both parties were entitled to be legally represented;
$35.00 would have to be paid to the Tribunal;
If mediation was unsuccessful the matter would be referred back to the Tribunal for an adjudicated hearing possibly in mid-December; and
In the circumstances of this case it would be unreasonable to require a student, who needed urgent action to decide whether she had employment, to resort to the remedy available and that the Ombudsman should exercise the discretion available under section 13(7)(a) and investigate the complaint.
Four days later a report was received from DSW, and after several further telephone inquiries all the necessary information was to hand.
It appeared there had been a breakdown in communication between the departmental officer who had offered the position, the salary and the starting date, and the student, and because of the conflicting evidence from the two parties about the starting date, the Ombudsman could not find:
that a verbal contract had been formed; and
that the department should therefore remedy its decision not to employ her because she could not start work till 14 November.
It was, however, quite another matter whether it was unreasonable of the department, after the events that had taken place, not to employ the student from the date she had given as possible commencement date. It was clear that in the original written application that date had been given and that during interview she had again made the restrictions on starting date known (which was noted on file). From 29 September when a position was offered until the end of October when the student received final advice that the department would not employ her, the student had an expectation of full time employment until the end of January. Not fulfilling this expectation when departmental error had caused the department to interview and offer the position to the applicant in the first place seemed to the Ombudsman to have been unfair. On the basis of the Ombudsman’s provisionally expressed view to this effect, the department agreed to employ the student (who in the meantime had managed to find alternative but less attractive employment) from 16 December when her other position could reasonably be terminated. The investigation was concluded on the basis that the matter had been resolved.
This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.