FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 29(1), SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005 PARTIES : HSE SOUTH - AND - SHEILA O'RAHILLY (REPRESENTED BY ELAINE HOULIHAN, B.L. INSTRUCTED BY HAYES SOLICITORS) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appealing against a Rights Commissioner’s Decision r-067385-hs-08/POB.
BACKGROUND:
2. The Employee appealed the Rights Commissioner’s Decision to the Labour Court in accordance with Section 29(1) of the Safety, Health and Welfare at Work Act, 2005 on the 23 July, 2009. The Court heard the appeal on the 28th September, 2011, the earliest date suitable to the parties.
DETERMINATION:
- The case comes before the Court pursuant to Section 29(1) of the Safety Health and Welfare at Work Act 2005 (the Act).
The Complainant is a nurse of some 28 years' standing and is employed in Kerry General Hospital. She submitted a complaint to the Rights Commissioner alleging that she had been penalised by her employer contrary to the provisions of Section 27 of the Act. The Rights Commissioner considered the complaint and decided as follows: -
“Following a review of the claimant’s submissions in this case I have not been able to determine any specific act of penalisation under the Act. …..”
The Complainant appealed this Decision to the Labour Court pursuant to Section 29(1) of the Act.
The Labour Court invited the parties to make written submissions to it on the issues involved and conducted an oral hearing into the complaint on Wednesday 28th September 2011. Both parties made written submissions and attended and were represented at the oral hearing of the complaint.
Position of the Parties
Counsel for the Complainant submitted on her behalf that:-
•The Complainant made a complaint to Hospital management by letter dated 20th February 2007 to the effect that understaffing on the ward on which she was working was compromising the safety health and welfare at work of both staff on the ward and of patients. There was no response to that letter.
•The Complainant recorded a similar complaint on an “Incident Report Form” on 15th January 2008. In response management instructed her not to record alleged staff shortages on Incident Report Forms as they were not designed for that purpose.
•On 20th January 2008 an incident took place involving the transfer of a post-operative patient from a theatre recovery unit to the ward on which the Complainant was working. While the Complainant was effecting the transfer the patient’s bed failed and could not be moved further. The Complainant returned to the ward whilst the bed was being repaired. On the same date, 20th January 2008 the Complainant wrote a further letter regarding staff shortages
- Following discussions with the Deputy Nurse Manager in the hospital another nurse, who was involved in the adverse incident of the 20th January 2008, submitted an Incident Report Form on the matter. The Report submitted was critical of the Complainant.
•She then sought to have a discussion about the incident that took place on 20th January 2008. The Complainant told her that she was not prepared to engage in such a discussion as she had formed the view that she would not be given a fair hearing on the matter.
•Matters deteriorated thereafter. The Complainant said that the Deputy Nurse Manager had described her behaviour on the day as “appalling” to other members of staff causing her great personal upset and damage to her professional standing. She also said that, arising out of the adverse incident that occurred on January 20th, she was threatened with possible disciplinary action within the Hospital and a possible referral to the Fitness to Practise Committee of An Bord Altranais. She said that the Deputy Nurse Manager apologised to her for describing her behaviour as “appalling.”
•She submitted that the Complainant submitted a further complaint regarding staff shortages by letter dated 20th January 2008
•Counsel submitted that the threats to discipline her and refer her to the Fitness to Practise Committee were unwarranted and disproportionate and arose because she had made complaints on 15th and 20th January 2008 regarding matters relating to staff shortages and the consequences for the safety health and welfare at work of herself and her staff colleagues.
•She submitted that those threats were wholly or largely related to the health and safety complaints she had made on 15th and 20th January 2008 and accordingly were contrary to the provisions of Section 27(3) of the Act.
•She submitted that following a preliminary investigation of the complaint before a different division of the Labour Court an independent investigation into the incident that took place on 20th January 2008 took place She submitted that this largely exonerated the Complainant from any blame, reduced the gravity of the incident, did not recommend that she be disciplined either internally or by way of reference to the Fitness to Practise Committee and made recommendations regarding the lack of an adequate Hospital policy in relation to certain issues involved.
Respondent's case:-
The Respondent submitted that there were ongoing industrial relations issues regarding staffing levels in the health services, Kerry General Hospital included. The Respondent submitted that Incident Report Forms were designed to assist the Hospital record and learn from incidents involving patients with a view to developing policies and procedures to minimise the chances of any recurrence of an adverse event. Accordingly Incident Report Forms were not part of any disciplinary procedure but rather a continuous improvement mechanism designed to achieve excellence in hospital practice and patient care.
The Respondent submitted that industrial relations disputes regarding staffing levels were therefore not appropriate matters to include on such forms. He submitted that there were ample other means by which such disputes could be processed and these were widely used within the Hospital in particular and the HSE in general.
The member of management of the Respondent submitted that the incident that took place on 20th January 2008 should not have happened and the Hospital needed to investigate it and take steps to ensure that it could not recur. He submitted that such an investigation was not disciplinary in nature and indeed was designed not to be. Hospital policy was and is that staff who bring adverse incidents to management’s attention in a timely manner under the Incident Report Form Procedure will not be subject to disciplinary procedures for so doing. This is designed to ensure that adverse incidents or near-misses are reported openly and fully and not suppressed to protect those involved against disciplinary action. Accordingly, he submitted that any threats of disciplinary action which might have arisen out of the incident that took place on the 20th January 2008 would have been inappropriate, misguided and hopeless in any case. In addition he submitted that any such threats, if they were made, were not related to the letters of complaint or the Incident Report Form submitted on 15th January 2008.The Respondent's representative submitted, accordingly, that the letters of February 2007 and January 2008 and the Incident Report Form dated 15th January 2008 were not part of the investigation that took place into the incident that occurred on January 20th 2008. This independent investigation related solely to the adverse incident on 20th January 2008.
The HSE representative admitted that the Deputy Nurse Manager had acted inappropriately in describing the Complainant’s behaviour as “appalling”. He stated that she had however apologised for this. He submitted that it arose out of the Deputy Nurse Manager’s view of the Complainant’s behaviour on the day of the incident and out of frustration that she would not assist in a timely investigation of the incident with a view to learning whatever lessons needed to be learned. He said, however, that such frustrations did not excuse the comments made.He submitted that the subsequent independent investigation noted failings on a number of fronts. He submitted that it criticised the lack of a written policy on internal patient transfers. However, it also noted that the full complement of staff was on the Complainant’s ward on that day and that the professionals involved had the authority to deal with the matter in a different manner than the way in which they did. He did acknowledge that the staff involved were not aware that they had such authority and the policy was not clear and explicit in this regard.He finally submitted that the incident that occurred on 20th January 2008 and all that flowed from it should be understood in their own terms and were not related to any complaints or representations regarding health and safety matters submitted by the Complainant. He submitted that no breach of Section 27 of the Act took place and the appeal should be dismissed.Findings of the Court:-The Court considered the extensive written and oral submissions of both sides in this case. The Court finds that the Complainant made complaints regarding health and safety matters within the meaning of Section 27 (3) of the Act. The Court also finds that the Respondent did threaten the Complainant with disciplinary action arising out of the adverse incident that took place on 20th January 2008.Section 27 of the Act states as follows:-
27. - (1) In this section "penalisation" includes 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.
(2) without prejudice to the generality of subsection (1), penalisation includes -
(a) Suspension, lay-off or dismissal (including dismissal within the meaning of teh Unfair Dismissals Acts 1977 to 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 finacial penalty), and
(e) coercion or intimidation.
(3) An employer shall not penalise or threaten penalisation against an employee for -
(a) acting in compliance with the 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 taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.
(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Act, 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).
(5) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.
(6) For the purpose 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.
(7) Where the reason (or, if more than one, the principle reason) for the dismissal of an employee is that specified in subsection (3)(f), the employee shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for teh employee to take the steps which he or she took (or proposed to take) that a reasonable employer might have dismissed him or her for taking (or proposing to take) them.
The Act refers to both disciplinary action and the threat of disciplinary action. The Court therefore must consider whether the threats of disciplinary action arose from the letters and the Incident Report Form or from the Complainant's actions during and following the adverse incident on 20th of January 2008.
The Court notes that the episode in which the Complainant complained of staff shortages in the Incident Report Form of 15th January 2008 was proximate in time to the incident that occurred on 20th January 2008. The Court also notes that the letter of complaint in relation to staff shortages submitted to management on 20th January 2008 by the Complainant was proximate in time to the incident that took place that day and to the meeting that followed on 28th January 2008 between the Deputy Nurse Manager and the Complainant.The Court is of the view that the Deputy Nurse Manager may not have handled that meeting particularly well. The Deputy Nurse Manager made reference to the Incident Report Form of 15th January in the course of the meeting with the Complainant on 28th January and her reference to the Complainant's behaviour during the adverse incident as appalling was undoubtedly excessive. However, the Court notes that she subsequently apologised and is of the view that the comment was made in the heat of the moment of the incident of 28th January 2008 rather than any than any dissatisfaction about complaints under the Act.
However, having carefully considered the evidence and the sequence of events that took place, the Court finds on the balance of probabilities that the threats of disciplinary action were not related to the Incident Report Form dated 15th January 2008 nor to the letter of complaint regarding staff shortages and consequent health and safety matters dated 20th January 2008. The Court further finds on the balance of probabilities that the issue of staff shortages was a live industrial relations issue in the Hospital at that time and was being actively pursued by the relevant trade unions involved. They were seeking to avail of all opportunities to highlight their perceived grievances. The decision by the Complainant to include such complaints on the Incident Report Form on 15th January 2008 was not in itself unusual and seems from the minutes of the meeting on 28th January 2008 to have been an instruction issued by the INMO to its members in the Hospital. It is not surprising therefore that the Deputy Nurse Manager took the opportunity of the meeting on 28th January to address the matter with the Complainant as she was at that time responsible for processing those Forms. The person normally responsible for doing so was on maternity leave at the time. The Court therefore finds that the Deputy Nurse Manager was correct to raise both the issue of the Incident Report Form of the 15th January 2008 and the adverse incident on the 20th January 2008 at the meeting on the 28th January 2008. The Court finds that in so doing she was not attempting to penalise the Complainant for raising health and safety issues but to deal with internal Hospital procedures which had arisen during the two incidents. The threat of disciplinary action and the subsequent investigation solely related to the Complainant's behaviour during the course of the incident on 20th January 2008 and could not be said to constitute penalisation nor the threat of penalisation under the Act.
Determination
Having made the above findings the Court dismisses the Complainant's appeal.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
14th December, 2011______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.