ADJ-00004142

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004142

Complaints and /Dispute for Resolution:  

Date of Adjudication Hearing: 04/11/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure: 

In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaints and dispute to me by the Director General, I inquired into the complaints and dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints and dispute.

Attendance at Hearing:

Complainant’s Submission and Presentation:

The complainant commenced work as an Agency Healthcare Assistant on 11 July 2015.She was based in a Healthcare facility near her home area .This was her first position post completion of her health care course.

On 17 November 2015, all agency staff received an email from the respondent. In the complainants case it was submitted that ambiguous allegations were put to her via teleconference which resulted in a verbal warning .The complainant contended that this was bereft of clear procedures or a review period.

The complainant was scheduled to bring service users swimming in or around the third week of March 2016.She noted that there were insufficient arrangements for separate changing areas and this caused her to have to get changed in the same cubicle as the male service user. The complainant made a complaint regarding her unease with this arrangement and refused to go swimming again until proper procedures were put in place.

The complainant was invited to attend a formal meeting with the respondent on 6 April. This was her day off .She had no prior notice of the purpose of the meeting but attended in good faith .She was advised that the only way of keeping her position open was to send an email confirming the allegations which were verbally put to her .She was advised that she was being removed from the roster of the health care facility .This was not accompanied by any investigation.

The complainant received an email on 8 April 2016 stating:

“Just to update you. I had a meeting with X Management yesterday as discussed. Unfortunately, they have decided they would prefer if you did not return to work on X roster ….I will be in touch next week regarding future work with ourselves “

The complainant heard nothing further until she contacted the respondent for an update. They met on 27 April 2016, and the complainant learned that she was not to be offered further work with the Agency .She was requested to submit a request for her P45.

The complainant was unemployed for 6 months after the termination of her employment .She was listed on a permanent panel with a secondary potential employer, but the Agency refused to give her a full reference, therefore, the secondary employer refused to progress her application.

The complainant subsequently secured work in a hospital in the city.

1 Safety Health and Welfare at Work Act 2005.

The complainants Solicitor advanced the claim for penalisation in the complainant’s case. He submitted that the complainant had been penalised by the Agency via the “botched disciplinary process and subsequent dismissal “following complaints she made on an unsafe practice both to Hospital staff and the Agency. The Agency had not acted on the complaint. There was no record of any concern that the Agency had about the complainant on the Case Management System, records of which were secured via Data Protection.

He contended that the complaint made by the complainant with regard unsafe practices was not prefaced by performance issues and drew the attention of the hearing to an analogous 2009 Labour Court case of Toni and Guy Blackrock Ltd V Paul O Neill HSD 095, where the claimant had raised certain issues relating to health and safety both with his employer and the Health and Safety Authority. Solicitor for the complainant quoted extracts of the decision in this case where he emphasised that complaints made by the complainant were “an operative reason “for her dismissal.

2 Minimum Notice and Terms of Employment Act complaint

The complainant sought one weeks paid notice in lieu in accordance with her employment contract.

3 Industrial Acts Dispute

The complainant contended that procedures outlined in the staff handbook were ignored in her case .She was not informed of the three staff members who made complaints against her. She submitted that that the respondent did not adhere to the provisions set out in the code of practice on Grievance and Disciplinary procedures SI146/2000 citing Irish Post Masters Union V a Worker CD/10/839. This had caused her great anxiety and stress.

Respondent’s Submission and Presentation:

The respondent denied all claims and the presence of a Dispute between the parties .By way of background the respondent introduced the complainant as having commenced her Agency placement in a High Dependency Unit in a Healthcare facility on 11 July 2015.The respondent was subsequently requested in April 2016 not to return the complainant to work on the site following being unsuitable for work in the Unit by the hirer.

On 20 September 2015, the respondent Client Relations Manager Ms CRM held a meeting with a Nurse Manager at the facility to discuss the performance of a number of employees, including the complainant .The Nurse Manager, Ms NM would monitor to the performance of the complainant into the future as there were concerns that she may not be suited to settings involving service users with Intellectual Disabilities.

The respondent circulated an email to a number of employees on 5 November 2015, outlining issues regarding employee conduct and behaviour .The staff handbook was attached.

The respondent circulated a further email to staff members including the complainant. This centred on the company’s report that “multiple complaints “had been received regarding the unacceptable conduct and behaviour of certain employees .The email referred explicitly to the company Dignity At Work Policy and advised staff that further complaints arising from failure to adhere to the policy may lead to disciplinary action against employees and potentially replacement of employees from their assigned place of work.

A teleconference was held with the complainant, Ms CRM and Ms BC (Agency Booking Co-ordinator) on 18 November, 2015 to discuss issues relating specifically to the complainant. The Teleconference was necessary as the complainant indicated that she would be unable to call into the office in person. The complainant was advised that there were issues regarding reports of her openly discussing issues regarding staff members and service users with her fellow colleagues .This was deemed by the respondent to be against company policy .The complainant was invited to give her version of events or submit any grievances on a confidential basis, but was unable to provide any examples of misconduct towards herself by any staff member. The procedure of” DNR (do not return) “was then explained to the complainant, whereby the client had a right to request that staff not return to the centre.

Ms CRM also indicated that any future conduct contrary to the company’s policies and procedures may result in the complainant no longer being permitted to work on the client site and may also lead to disciplinary action, up to and including termination of her contract .Ms CRM issued the complainant with a verbal warning, and that formal disciplinary action would be taken if such conduct or behaviour occurred in the future.

There was another staff meeting on 2 December, 2015 chaired by Ms CRM for the respondent and Ms NM on behalf of the client .Further emphasis was placed on policies and procedure compliance particular to the site. This was followed up by email on 21 December 2015 which highlighted that some of the issues raised previously were still not in compliance .This was heralded as a final reminder to staff .

On January 5, Ms CRM gave feedback by email from a visit by the Regulator. This was negative feedback.

The respondent submitted that they received a call from Ms NM on April 1^st 2016 regarding serious issues with the complainant’s performance raised by the person in charge of the facility. A joint meeting with the respondent and the complainant was arranged for April 6. The client raised further issues pertaining to the complainant on April 4 surrounding her capacity to fulfil her role at the centre .Furthermore; three members of staff had approached Ms NM and stated that they no longer wished to work with the complainant, citing operational difficulties.

The respondent was represented by Ms CRM and Ms BC at the meeting of April 6.The respondent outlined the client’s stated difficulties with her performance and invited feedback from the complainant. They received this feedback later in the day. This constituted:

• An apology for not meeting the standards required by the centre and a statement that she felt she had the ability to provide care and make “more of an effort “.

• An acknowledgement that “the changing issue “with the swimming scenario was an uncomfortable situation .This had been reported to a Nurse and not Ms NM.

On April 7, the respondent engaged with the Client to consider the situation from their perspective and the complainants feedback .At this meeting, the client informed the company that the complainant was not to return to work at the centre .This was communicated to the complainant on April 8.Ms CRM told the complainant that she would be in contact regarding future work.

On 27 April Ms CRM, Ms BC and the complainant met again. the respondent informed that the complainant that she would not be offered further work at the Agency because of the seriousness of the complaint and the fact that the company did not have other work to offer her in this area. The respondent submitted that the complainant stated that she did not understand this decision as she felt it was based on accusations rather than fact .The complainant told the respondent that she was leaving and sought a copy of her contract .This was followed up later that day by a letter from the complainants Solicitors seeking all personal data held in accordance with the data protection Acts 1988-2003. The next day the company received a further Solicitors letter alleging that the complainant had been treated unfairly and that she had been penalised for raising an issue regarding unsafe practices.

On 13 May 2016 the respondent corresponded with the complainants representative outlining the reasons for the decision surrounding her denied return to the health care facility .The complainant was invited into the Agency Office to consider options for her availability for work.

The respondent submitted that a Disciplinary procedure had not been activated in this case, neither was a Dismissal actioned by the respondent. Instead, the client made a decision that the complainant was not suited to their centre and the respondent was bound to respect and action that request. The “Do Not Return” direction could not be over run .The respondent understood that the complainant resigned her employment.

1. Complaint Under Safety Health and Welfare at Work legislation

Preliminary Issue:

The respondent contended that the complaint was misguided against the Agency, given that the presiding decision on “DNR” was external to them. It was further contended that the complainant was not in apposition to satisfy all components necessary to activate a complaint under Section 27 .The company disputed “any causal connection” between a purported representation and allege penalisation citing Labour Court Authorities of Patrick Kelly T/A Western Insulation and Algridas Girdziu HSD081 , Citizens Information Board V John Curtis (HSD 101) and Healthy Buildings ( Ireland) ltd V Andrzej Gorzelak (HSD 114)

The complainant was aware of the company grievance procedures. The respondent state that the complainant was also aware of the reporting structure open to her in relation to the “ swimming issue “ and did not follow this when she acknowledged that she had raised the issue with a Nurse on site . The company was not apprised of this issue until April 6. The sole reason for the application of the “DNR “was performance and conduct which was under active consideration by the client before April 6.

The respondent sought that the claim be dismissed.

2 Industrial Relations Act Dispute

The respondent submitted that the IR claim dealt with the same set of facts as the first complaint on penalisation .They contended that it would be inappropriate to respond in full to this claim as standard industrial relations practices on dispute resolution were not fully utilised before the case came before the WRC.

Decision and Recommendation:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints and dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 28 of the Safety, Health and Welfare at Work Act, 2005 and Section 11 of the Minimum Notice and Terms of Employment Act 1973 requires me to make a decision in the case.

Section 13 of the Industrial Relations Act, 1969 requires me to make a recommendation to the parties

1 CA-00005837-002 Penalisation Complaint

I have listened carefully to both parties submissions and I have inquired into the complaint before me. I have taken some guidance from the definition of an employer in accordance with the primary legislation .I Find that there is certain latitude in identification of an employer for the purposes of the Act.

A Definition of “employer”, in relation to an employee for the purposes of the Act is found in Section 2

( a) means the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment,

( b) includes a person (other than an employee of that person) under whose control and direction an employee works, and

( c) includes where appropriate, the successor of the employer or an associated employer of the employer;

The complaint before the WRC is against an Employment Agency and not the client referred to in the complaint. I have identified the employer in this case as coming under 2(a) of the Act.

Penalisation is detailed at length in Section 27 of the Safety Health and Welfare at Work Act 2005.In considering the complainants submitted claim, I must first examine the protected act she referred to in her submissions.

This centred on a concern at the practice adopted by the client in relation to managing the changing facilities for the purposes of swimming. I found that the complainant was very troubled by what she understood that she was expected to do, i.e. share changing facilities with a male service user and she understandably sought to distance herself from any misconception.

I am satisfied that she returned to the centre in March and reported her concerns to a Nurse. As there was no one in attendance at the hearing from the Client service, I was unable to illicit what risk assessment or action plan, if any followed that statement of concern .It seems to me that the complainant followed clause 15 of her written terms of employment in that regard by reporting the concern to the entity under whose direction and control she worked, i.e. the Client service

 . Protection against dismissal and penalisation.

27

7. —(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.

Examples of manifestations of this include Suspension,Dismissal,Reduction in wages ,change of location of work , disciplinary action .

I have found that the complainant did not place the respondent on notice of her version of events in relation to the swimming episode until after her meeting of April 6^th where she recorded her responses back to the respondent by email.

“…..I have no problem doing activities with regard to swimming; I explained to that it was an uncomfortable situation .I did report it to the nurse but not to Ms NM. Again, I apologise, I have no problem going, just the changing issue.”

I note that the complainant responded to a request for a generic HealthCare Assistant position at a High Dependency Unit. I was struck by the fact that this was her first position post completion of her training course. There was a Service Level Agreement in place for the Agency to provide 4 staff by day and 4 by night and the complainant was a member of this team.

From a perusal of the Agency case management system, I did not establish that any health and Safety training or induction was made available to the complainant in preparation for this highly complex environment .I found this to be a stark omission and a possible rationale for   the confusion that clearly arose around whose role it was to resolve the changing issue and what reportage documentation , if any should accompany such an event .I find that this was compounded further by the “ triangular working relationship “ which arose between the Agency , Client and Complainant .I established that the complainant was unclear just who she was working for when it came to practice issues .

While, I have established an omission on behalf of the employer with regard to training and induction ,I have found that the complainant engaged in a protected act arising from her reportage of the “ changing issue “ to the Nurse at the client service ,however I cannot establish that she suffered a detriment or penalisation by the respondent as a result as they were not on notice of the protected act Therefore , I must find that her complaint in this regard is not well founded . Toni and Guy distinguished.

2 CA-00005837-003 Industrial Relations Claim

I have investigated this dispute .I have considered the views of both parties. I note the respondent position on the standing of the Dispute before me and a suggestion that there is complaint overlap and duplication. I am satisfied that Dispute before refers to submitted perceived shortcomings in the respondents procedures in relation to the claimant. This is markedly different to the employment rights complaint on penalisation just addressed. I find I have a fair basis on which to proceed with my consideration of the claim.

I have considered both parties documents and oral submissions. At the outset, I would like to observe that insertion of a probation clause and resultant action plan in the complainant’s contract would have opened up the opportunity to address the very real issues advanced by both sides in this case. I accept that the respondent was bound by Service Level Agreement to provide 8 Health Care Assistants per day to this particular High Dependency Unit ,however, I could not establish how they scoped out this particular skills set in preparation for this business imperative .The respondent sought a generic Health Care Assistant for a specialised Unit .I am mindful that this was the complainants first position as a care assistant and apart from her geographical base being in the vicinity of the Clients facility , I could not establish any other skills fit .

In addition , I note the extended physical distance from the Clients facility to the Agency Office . I asked for details on whether the Service Level agreement provided a road map for addressing performance issues through procedure? and neither party was in a position to advise me of this.

Agency work has been described as A-typical working and has been supported in recent years by the enactment of the Protection of Employees (Temporary Agency Worker) Act 2012 .This legislation is aimed at minimising the vulnerability of an agency worker.

I am satisfied that concerns raised by the Client facility up until January 2016 were of a collective nature with the exception of the teleconference that took place in November 2015 where the claimant was placed on notice that the client facility and the company had issues with her performance . I did not establish any corrective action plan emanating from this forum apart from an explanation of the company “ DNR “ policy and a reference that persistence of poor performance would result in termination of contract . There was no formal record maintained of a verbal warning outside the reference to a pre –existing verbal warning on the case management system.

While I accept that any” hirer “is within their rights to demand the highest quality performance from staff assigned to their centres, it is neither fair nor reasonable that the same hirer would not adopt a high quality performance management system in partnership with the Agency. I could not establish what criteria the claimant was judged against in terms of her performance management. I cannot accept the legitimacy of the “DNR” practice at the respondent firm, where without any recourse to fair procedures , a candidate can be effectively airbrushed from the team .There is no reference to this practice in the complainants written terms and conditions ,nor in the staff handbook . Everyone has a right to their good name and the complainant was no different.

The respondent cited a range of problem issues with the claimant’s performance as informed by the client site on April 1. Yet, no documents from the client site were advanced, no witness statements, or criteria against which the report was made .In particular there was an absence of a report from the Person in Charge who apparently informed the practice issues.

I found that the respondent did not activate an investigation into these issues as permitted in their procedures. I believe this to be a fundamental error in the application of fair procedures. Every day in the workplaces of this country interpersonal difficulties are played out and reports of poor performance deserve to be objectively investigated and managed responsibly .In managing this report of poor performance I find that the respondent stopped short of fair procedures and departed from their own policies in that regard .

“Where a serious complaint has been made against the employee. The Agency reserves the right to remove the employee from the roster without pay until an investigation has been carried out to the satisfaction of the parties involved “

The case management reports referred to the concerns being of a serious nature, yet this did not trigger an investigative process .While I heard the respondent that neither a Disciplinary procedure nor a dismissal occurred. I have found that both in fact took place. The case management system reflects these occurrences, the nett effect of which was that the claimant was removed from the pay roll and employment by the respondent.

I was struck by the respondent demands that the complainant travel to the City for her meetings with the respondent. It may have been more effective to have further tri-partite discussion in the facility between the complainant, client and Agency .I note that the Agency met the client on the client site; it is regrettable that this facility was not afforded to the claimant.

I have outlined below a summary of what constitutes fair procedures in any Disciplinary Procedure.

An employee is made fully aware of any formal allegation made against them

They are afforded the opportunity to reply to any formal allegation made against them

They are afforded the right to representation throughout the disciplinary process

They receive the right to a full and objective investigation of the allegation

They receive the right of appeal

The Supreme Court Authority on Re :Haughey [1971]IR 217 has set down the cornerstone for application of fair procedures .

I have found that procedures adopted by the respondent in relation to allegations of poor performance did not follow this path in either November 2015 or April 2016.

I noted that the respondent offered to re-assign work to the claimant on foot of her Solicitors letter, however, there was no evidence adduced of these offers.

I must , therefore conclude that procedures adopted by the respondent in terms of managing the Client’s statements directed at the claimants poor performance fell seriously short of fairness or reasonableness . The claimant was not managed in accordance with the staff handbook road map and she was not heard or given an opportunity to receive assistance in this her first work placement .At the conclusion of her employment, the claimant still did not know the identity of the three people at the client facility who said they were not prepare to work with her .I find that to be completely unacceptable.

The complainant raised the matter of the claimant response to the allegations raised on April 6^th . There was no concrete evidence that these had been passed to the Client for review . I found this to be harsh and reflective of an undue procedural containment by the respondent .

I note that the claimant did not appeal the sanctions placed on her .Instead her Solicitor sought” an appropriate offer of amends along with an apology”. I note that the respondent contended that internal procedures should be utilised in the first instance. However, I find that the case management system reports of 8 and 27 April clearly militated against this and the claimant was “do not return “from those dates forward. An appeal was neither offered by the respondent or requested by the complainant .

In recommending a way forward in this case, I am conscious that the claimant told the hearing that she had moved on and was now content working in a city hospital .

1 I recommend that the practice of” DNR” is reviewed immediately by the respondent and replaced by a tri-partite forum , underpinned with optimal performance management practices and supported by a Senior Clinical decision maker who is prepared to objectively justify stated concerns .A right of appeal should accompany this process . This should be incorporated into the Service Level Agreement and Staff handbook.

2 That the respondent issues a letter of apology to the claimant in relation to the shortfall in the operation of the procedures in this case.

3 I order the respondent to pay the claimant €10,000.00 in compensation in respect of the impact of the procedural shortcomings. 

3 CA-00005837-004 Minimum Notice Complaint

I find that the complainant is entitled to one week pay in lieu of notice as provided for in her statement of terms of employment as the respondent curtailed employment first in time on 8 and 27 April 2016. . 

Dated:   22 March 2017