FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 29(1), SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005 PARTIES : HSE DUBLIN NORTH EAST (RESPONDENT) - AND - ANNAMAY TIERNAN (COMPLAINANT) (REPRESENTED BY AMALGAMATED TRANSPORT AND GENERAL WORKERS' UNION) DIVISION : Chairman: Mr McGee Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Appeal by the Respondent against Rights Commissioner’s Decision r-050170-hs-07/TB
BACKGROUND:
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on the 18th December, 2007 in accordance with Section 29(1) of the Safety, Health and Welfare at Work Act, 2005 (the Act). The Labour Court heard the appeal on the 3rd June, 2008, and concluded the hearing on the 30th June, 2008 the earliest dates suitable to the parties. The following is the Court's Determination.
DETERMINATION:
The Complainant is employed as an Emergency Medical Technician (E.M.T.) assigned to the Ambulance Station in Virginia, Co. Cavan.
On the night of 10th August, 2006, the Complainant reported for night duty in the Ambulance Station. The second E.M.T due to work with her was out sick and it had not been possible to secure a replacement E.M.T. Thus the Complainant was told that she would work alone on that night.
She received a call from Ambulance Control requiring her to drive to Navan Hospital to collect a stable patient and transfer the patient to Our Lady of Lourdes Hospital, Drogheda. She declined to carry out the transfer, citing safety concerns, as she would be driving an emergency ambulance alone. In communications with the Operations Officer and the Chief Ambulance Officer, she maintained this position. She was eventually suspended from duty on the night.
She was subsequently informed that the incident was to be the subject of a Stage 2 disciplinary process.
She complained about this to the Health and Safety Authority (H.S.A).
On the 18th August, 2006, a disciplinary hearing under Stage 3 of the disciplinary procedures was held. The following sanctions were imposed on her as a result: -
(a) a final written warning, duration 9 months.
(b) suspension without pay for the duration of the 12-hour shift on 10th August.
(c) deferral, for the period of time of the written warning, of her position on the Higher Diploma Course in Emergency Medical Technology.
She appealed these sanctions without success.
It was her case that she was penalised within the meaning of Section 27 of the Act for identifying possible endangerment to her, as set out in Section 13 of the Act, if she complied with the instruction.
A Rights Commissioner’s hearing took place on 1st October 2007, into her complaint.
On 21st November 2007, the Rights Commissioner decided as follows:
- “I find that the complaint that the claimant was penalised contrary to the provisions of Section 27 of the Safety Health and Welfare At Work Act to be well founded.
- I require the employer to withdraw the final written warning issued to the claimant and to restore her to her position on the Advanced Paramedic Course. I also require the employer to pay the claimant €5,000 in compensation”.
On 18th December, 2007, the Respondent appealed this case to the Court. A Labour Court hearing began on 3rd June 2008 and concluded on 30th June 2008.
Complainant's Arguments:
1. On the night in question, she was asked to operate an emergency two-person ambulance alone. There was no advice or reassurance available to her on how she was expected to deal with any incident such as a road traffic accident (RTA), a collapse or any other emergency while she was alone. She had concerns regarding the possible risks to her safety and, when they were not allayed, she declined to take out the ambulance, for which she was penalised by being disciplined. This, she argues, is in breach of the Act.
2. Her supervisor suspended her without pay immediately rather than investigate the issue or address her concerns. The HSE took disciplinary action also rather than having an investigation into the matter. The “investigation hearing” was in fact a disciplinary hearing.
3. She was further penalised after reporting the matter to the HSA, in that following that report the HSE took the disciplinary process from a Stage 2 to a Stage 3 hearing. The penalty under Stage 3 includes a final written warning as opposed to a written warning under Stage 2.
4. The punishment, which amounted to penalisation, was in itself unfair and excessive.
5. Following her appeal, the Appeals Officer (Mr Seán Brady, Assistant Chief Ambulance Officer) said to her “someone else started a process and I was told to finish it”. To her this proved that the HSE had to support the original decision to suspend her on the night, whether or not they believed in it.
Respondent’s Arguments:
1. Having been given a legitimate instruction on the night in question and having been assured and reassured as to her concerns, the Complainant still refused to comply, even under protest.
2. Given the above, her actions were found in a disciplinary process to be unacceptable and she had full representation at two hearings, the result of which was the application of proportionate and appropriate sanctions to her.
3. The Complainant attempted to frustrate and undermine the process by use of the media and political representatives. Nevertheless her appeal was dealt with in accordance with due process and procedures.
4. A sole operator on an ambulance is not a new or unusual phenomenon and records prove this. The ambulance was not on the emergency rota that night for the very reason that she was working alone. Adequate structures are in place to support this practice.
5. The use of Stage 3 of the disciplinary process was entirely a matter for the HSE and was considered appropriate. Her contacting the HSA in the matter had no connection with the disciplinary process which took its course.
6. The Rights Commissioner erred in his interpretation of Section 27 of the Act. There was no imminent nor apparent danger to the Complainant.
The Evidence:
The Complainanttestified that she came on duty at 7:30pm on the night in question (10th August 2006) and became aware that she would be working alone. When Mr Henry Staunton (Duty Regional Ambulance Controller) told her she had to drive an emergency ambulance to Navan, pick up a patient and go to Drogheda, she declined on the grounds that it was unsafe.
When Mr Vincent Duffy (Operations Officer/Ambulance Supervisor) rang her she outlined her concerns. He said, “so you are refusing to do the call”, told her she could "take herself home with no pay" and then hung up on her.
She then phoned Mr Pat Grant (Chief Ambulance Officer) and asked him why Mr Duffy had done what he had. Mr Grant said Mr Duffy’s actions were “appropriate”.
She informed Mr Austin Byrne (her Station Union Representative) and asked him to contact Mr Duffy.
On 11th August 2006, Mr Oliver Reilly (Operations Officer / Ambulance Controller) phoned her and invited her to a Stage 2 disciplinary hearing. She informed him that she would need Union representation.
On 14th August 2006 she contacted the Health and Safety Authority (H.S.A.) and made a complaint.
Mr Oliver Reilly (Operations Officer/Ambulance Controller) contacted her with a copy of an e-mail dated 15th August convening a hearing under Stage 2 of the disciplinary procedure. Mr Brendan Hodgers, her Union Official (ATGWU/Unite), then contacted the HSE, pointing out that he had already raised the matter and asking why there was to be a disciplinary hearing before any investigation took place.
The HSE (Mr J.J.Tevlin, Human Resources Manager, HSE) told Mr Hodgers that a meeting would be held on 18th August, 2006, to investigate the matter.
On the morning of the 18th August, 2006, she and Mr Hodgers learned that the "meeting" was now a Stage 3 disciplinary hearing rather than a Stage 2 hearing as originally conveyed to her.
At the meeting on 18th August, 2006, she outlined her concerns. She was subsequently allowed to return to work and her pay was restored.
On 27th August, 2006, she received written notice of the sanctions against her.
She appealed against the sanctions and this appeal was heard on 5th December, 2006, by Mr J.J. Tevlin (Human Resources Manager, HSE)and Mr Seán Brady (Assistant Chief Ambulance Officer).
She again raised her safety concerns, the fact that no risk assessment had taken place, the raising of her case from a Stage 2 to a Stage 3, why she could not have performed the work under protest, the threat to withdraw her pay, the lack of policies and the unsuitability of the Ferno Pioneer stretcher in the ambulance for one-person operation.
On 18th December, 2006, a letter was delivered to her confirming the sanctions.
The Complainant said that she had no knowledge of whether, as claimed, E.M.T.s had worked solo on ambulances 32 times in the previous year. This would, in any event, not have in any way allayed her safety concerns.
In her view, it was clear from correspondence that the HSE knew on the 15th August, 2006 that she had reported the matter to the HSA on the 14th August, 2006, The HSA had emailed Mr Pat Grant. She was then further penalised by having her procedure increased from Stage 2 (which carries a written warning) to Stage 3 (which carries a final written warning).
Mr Henry Staunton:(Duty Regional Ambulance Controller) gave evidence that he told the Complainant “you’ll be on your own tonight” and that she refused to do the patient transfer. He said that the Complainant was told that she would not be acting as an E.M.T. nor used on the emergency service as she was on her own. He informed Mr Vincent Duffy of the situation.
Mr Vincent Duffy:(Operations Officer/Ambulance Supervisor) testified that he had spoken twice to the Complainant on the night, who had refused to do the transfer both times, even under protest. He denied that he had told the Complainant that she was suspended without pay. While she wasn’t on call, her ambulance was not off the rota for the night, and was available for duty. In an emergency she would still remain on the scene doing whatever she could until a fully-manned ambulance turned up. This could easily be done under protest and has been. There would never normally be a refusal to obey a lawful instruction.
Mr Pat Grant:(Chief Ambulance Officer) gave evidence that the Complainant had contacted him on the night in question. She outlined her concerns and the reasons for her refusal to do the patient transfer. Mr Grant attempted to allay those concerns and told her that she was not on frontline emergency duty. In his view, her instructions were reasonable and legitimate and would normally be carried out by an E.M.T. He failed to convince her. He subsequently informed Mr Oliver Reilly (Operations Officer/Ambulance Controller) who undertook to have the matter investigated.
Mr Oliver Reilly:(Operations Officer/Ambulance Controller) said that he was contacted on Friday 11th August, 2006, by Mr. Pat Grant. He proposed to carry out a disciplinary hearing and offered the Complainant the chance to put her side of the story.
A hearing was held on Friday, 18th August, 2006, in which he established that the Complainant had refused to carry out a basic instruction, even under protest. He was, in the interim, advised by the HR Department that the process should be upgraded to a Stage 3 one.
Note:
The HSE HR Department made two points to the Court:
- The HSE Dublin North East (DNE) was "in between" Grievance & Disciplinary procedures at the time in question but felt that Stage 3 was the appropriate level at which to deal with the matter.
- the HR Department did not have knowledge of any complaint made by the Complainant to the HSA on 14th August 2006.
Mr Seán Brady:(Assistant Chief Ambulance Officer) gave evidence of having heard the appeal on 5th December, 2006, along with Mr J.J. Tevlin (HR Dept). He denied having ever said to the Complainant:- “someone else started a process and I was told to finish it”. Having fully heard and reviewed all the evidence and having heard both the Complainant and the Complainant’s Union Official, he then confirmed the penalties to the Complainant.
The Law:
Section 27(1) of the Act defines “penalisation” as including
- “any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment”.
Section 27(2) of the Act provides that:
- “without prejudice to the generality of subsection (1), penalisation includes: -
(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977-2001), or threat of suspension, lay-off or dismissal.(b) demotion or loss of opportunity for promotion,
(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,
(d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and
(e) coercion or intimidation
And Section 27(3) of the Act provides that: -
An employer shall not penalise or threaten penalisation against an employee for
(a) acting in compliance with relevant statutory provisions.(b) performing any duty or exercising any right under the relevant statutory provisions.
(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work.
(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,
(e) being a safety representative or an employee designated under Section 11 or appointed under Section 18 to perform functions under this Act, or
(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger”.
Section 27(6) of the Act provides that: -
“for the purposes of subsection (3)(f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time”.
There is also a General Provision in Section 13(1)(a) of the Act that an employee shall while at work comply with the relevant statutory provisions, as appropriate, and take reasonable care to protect his or her safety, health and welfare and the safety, health and welfare of any other persons who may be affected by the employee’s acts or omissions at work.Matters established by the Court:
The Court has established that
- The Complainant was told that she would work alone on the night in question .
- She refused on grounds of safety to operate an ambulance on a patient transfer, even under protest..
- She was given certain assurances regarding her status vis-a-vis the emergency ambulance service..
- She was later told that her case would be dealt with at Stage 2 (presumably of the general HSE disciplinary procedure).
- She contacted the HSA on the 14th August, 2006 and complained.
- The HSA contacted the HSE (DNE) on 15th August, 2006, regarding the complaint.
- When the Complainant attended the disciplinary hearing on 18th August, 2006, the matter had been upgraded to a Stage 3 hearing, carrying a penalty, if upheld, of a final written warning. The HR Department of the HSE (DNE) took the view that to do so was its prerogative.
- The Complainant received a final written warning (to last for nine months), was not paid for the night in question (12 hours) and was temporarily removed from her position on the Higher Diploma in E.M.T. for the 9 month duration of the final written warning.
- These findings were upheld at appeal stage.
In reaching a decision on whether or not the Complainant was victimised for expressing safety
concerns, the Court must, under Section 27(6) of the Act, take account of all the
circumstances and the means and advice available to the Complainant at the relevant
time.
The other question arising is whether or not the Complainant was penalised in terms of
Section 27(3) of the Act for having made a complaint to the HSA.
The Court finds-
(a) That the Complainant should have agreed, under protest if desired, to carry out the transfer on the night in question, given the assurances she received.
(b) That her claim of penalisation over this incident is not sound and is not upheld.
(c) That she, having complained to the HSA, had her disciplinary process raised from a Stage 2 to a Stage 3 between the date of her complaint to the HSA and the date of the disciplinary hearing.
(d) That the disciplinary procedures of the HSE were at best uncertain and were misused in as much as the then existing procedure only allows a Stage 3 hearing to occur consequent on events which should be dealt with at Stage 2 of the procedure.
(e) That (c) and (d) above constitute penalisation of the Complainant, within the meaning of Section 27(2) of the Act, for making a complaint as outlined in Section 27(3)(c) of the Act.
In the Court's view, the appropriate award is one of compensation for this penalisation.
The Court, accordingly, awards Ammamay Tiernan the sum of €5,000 in compensation
for the breach of the Act by the HSE and so determines.
Signed on behalf of the Labour Court
Raymond McGee
9th October, 2008______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.