Complainant

Respondent

Anonymised Parties

A Domestic – General Operative

A Health Service Provider

Representatives

ESA Consultants

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00012353-001

07/07/2017

Dispute seeking investigation by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00012353-002

07/07/2017

The complainant commenced employment on 10th October 2005 and works as a Domestic – General Operative.

The complainant highlighted a number of issues including health and safety concerns on 10th August 2015, raised a formal grievance regarding same on 23rd September 2016, with a meeting held on 13th October 2016 and a report from this grievance meeting issued on 19th December 2016. This was appealed on 28th December 2016, and this appeal has never taken place.  

The complainant detailed that the respondent’s postponement of her grievance appeal and the loss of pay owing to going on sick leave has amounted to penalisation under health and safety. it was also detailed that the respondent failed to deal with her grievance appropriately under the industrial relations act. The respondent disputes the allegations.

The complainant raised issues relating to health and safety by way of a letter to the Assistant Director of Nursing Mr A on 10th August 2015. She was particularly upset that a patient from the psychiatric unit was asked to work in the kitchen to help her out. The complainant detailed that she feared for her life and felt this was completely inappropriate as knives and other sharp utensils were in the kitchen.

A significant amount of correspondence was exchanged between the parties thereafter, which included Mr A, Assistant Director of Nursing asking if the complainant felt her life was at risk why had she not raised it with the senior nurse on duty.   The complainant felt this was very insensitive of Mr A and because she was upset she declined his offer to meet as she wanted an investigation into the issues raised, in the first instance.

In his reply, Mr A detailed his surprise that the complainant did not detail the incident in a Near miss report book, if she felt her life was in danger. The complainant took exception to what she described as the tone of Mr A’s letter and in response Mr A stated on 14th October 2015 that having reviewed the circumstances, “the factual circumstances do not support your assertion that your life was at risk”.

The complainant was shocked when she found out in early February 2016 that somebody in the unit had attempted to erase her request for annual leave from the annual leave book and found out later that month that her letter regarding same had been discussed with colleagues in breach of confidentiality.

The complainant outlined on 12th May 2016 her annoyance that there had been no response to her letter of December 2015. Mr A offered to meet with her and requested that she detail a list of items for discussion and possible dates. On 11th August 2016, the complainant was certified unfit for work owing to work related stress and discussions took place with regards to redeploying the complainant but thus far this has not happened. The complainant was also offered a place on a Level 5 training course but felt unable to avail of this owing to the continuing unresolved work related issues.

As the issues continued to be unresolved, the complainant raised a formal grievance on 23rd September 2016 and met Mr B, Clinical Nurse Manager on 13th October 2016. On 1st November 2016 Mr B offered the complainant a placement at a different facility and the complainant raised her concerns with the length of time it was taking to investigate her grievance complaint which was responded to on 7th November 2016.

The complainant highlighted that she had to write on numerous occasions querying the unacceptable delay in receiving a response to her grievance. Eventually on 19th December 2016, almost 3 months after she had formally raised her issues, despite the respondent’s policy indicating that grievances are resolved within 7 days; she received the outcome of her grievance.   She was shocked that Mr B found “the issues raised in the grievance are not substantiated” despite his finding that it was “recognised (her supervisor) showed poor judgement on the day” with regard to allowing a patient to work in the kitchen with her.    

The outcome of this grievance caused the complainant significant upset and even more so because she received it Christmas week which she believed continued to show the respondent’s insensitivity to her concerns.

She appealed same and correspondence took place between the parties to set up this appeal meeting.   It was the nature of these delays which were deemed by the complainant as penalisation by the respondent for her having raised health and safety concerns. It was detailed that despite a meeting arranged in January 2017, the respondent rescheduled her appeal to be part of an interview panel. It was furthermore detailed that the respondent penalised her as her pay was impacted when she had to go out on sick leave owing to the actions of the respondent. The complainant expressed how distraught such continued actions caused her and her family and she felt that the respondent was showing complete disregard for her welfare. The appeal of the grievance meeting has never taken place.

Preliminary Issue:

The respondent raised a preliminary issue that the complaint was out of time.

Substantive Issue:

Without prejudice to this, the respondent disputed the claim that the complainant had been penalised.

While the sequence of events was not wholly in dispute, the respondent outlined that they took the allegations serious, responded to all correspondence received from the complainant and her representative and that while their grievance framework provides timeframes to progress complaints, complex cases can take longer which is what occurred with this instant case.  

It was regrettable that the complainant did not accept the results of the investigation and the details of her complaints under Section 28 were addressed. It was also regrettable that that the complainant on many occasions refused to meet or engage with the respondent to resolve her issues. While it was unfortunate that the appeal of the grievance was rescheduled, many other attempts were made to reschedule her appeal which she declined.

As part of her grievance the respondent attempted to reassign her including offering her a place on Fetac Level 5 courses which would have increased her opportunities to be reassigned to a different location, but the complainant has not engaged with them.

The respondent took exception to what it saw as the complainant’s inappropriate perception of patients in the psychiatric unit. It was outlined that it is appropriate, as part of the rehabilitation of patients, to allow them to perform duties such as had been tasked to the patient who was assisting the complainant in the kitchen. The respondent detailed that such rehabilitation is provided for by the Mental Health legislation as well as the Mental Health Commission Judgement Support Framework.

There had been a large volume of correspondence exchanged between the parties regarding the complainant’s complaints. Whilst I will not be referring to every email, incident, witness or event, I have taken into account all of the submissions including oral and written made to me in the course of my investigation, including those received after the hearing (copies of which were forwarded to both sides) as well as the evidence presented, relevant to this instant complaint.

The specific claim, was that the complainant was penalised when the respondent postponed the appeal of her grievance and that her pay has been reduced because she has been out sick as a result of her health and safety complaints.

As a preliminary issue, the respondent detailed that the claim was out of time. The complainant submitted her claim to the Workplace Relations Commission on 7th July 2017 and details that she made a number of protected acts. With regards to the time limits for submitting a claim under the Act, section 41(6) of the Workplace Relations Act 2015 provides a six-month time-limit within which a complaint in respect of an alleged penalisation can be made. This is the six-month period from 8th January 2017 until 7th July 2017. This can be extended for a further six months if it is reasonable to do so and no such request was made. The complainant’s claims that she was penalised by the postponement of the appeal of her grievance meeting (due to be held week commencing 23rd January 2017) and that she is currently out on sick leave, are therefore, in time.

Section 27 of the Act details penalisation as.— (1)

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 a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the 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.

Subsection 3 of Section 27 sets out the circumstances in which penalisation is rendered unlawful under the Act. It provides: -

(3) An employer shall not penalise or threaten penalisation against an employee for—

( a) acting in compliance with the relevant statutory/y 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 11or appointed under section 18to 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.

The cognisable period is 8th January 2017 – 7th July 2017. In order for the Complainant to avail of the protections available in Section 27(3) it is essential that a detriment complained of be causally connected to one or more of the matters referred to in that subsection. The Complainant must show that ‘but for’ having made a protected act under the subsection the detriment would not have happened. 

In Paul O'Neill v Toni & Guy Blackrock Limited [2010] ELR 21, the Court held that the detriment complained of must have been imposed for having committed a protected act within the meaning of Section 27(3) of the Act:

‘The detriment giving rise to the complaint must have been occurred because of, or in retaliation for, the Claimant havingcommitted a protected act. This suggests that where there ismore than one causal factor in the chain of events leading to the detriment complained of, the commission of a protected act must be an operative cause in the sense that "but for" theClaimant having committed the protected act he or she would not have suffered the detriment. This involves a considerationof the motive or reasons which influenced the decision makerin imposing the impugned detriment.’

I find that although the complainant contributed to some of the delays that occurred, the respondent was tardy in their dealings with the complainant. While I note the respondent’s high regard for patient care, the same regard should have been held for their employee – the complainant. The respondent should have dealt with her grievance, appeal and absence in a more urgent manner. However, I do not find that the Complainant has established any causal link between the alleged protected acts and the alleged penalisation. Her claim is, therefore, not well founded and is therefore, dismissed.

The worker raised a dispute regarding breach of procedures, under the Act, by the manner in which the employer dealt with her complaints raised on 10th August 2015 and the formal grievance of 23rd September 2016. These complaints included her upset that there were not enough people available to work in the kitchen and that a patient from the psychiatric unit was asked to help her. The complainant feared for her life and felt this was completely inappropriate as knives and other sharp utensils were in the kitchen.

A meeting was arranged for 13th October 2016 and a report from this grievance meeting was issued on 19th December 2016.   This was appealed on 28th December 2016 and acknowledged on 10th January 2017. The complainant was offered a date in January which was rescheduled to 16th February, and for various reasons this appeal never took place.  

The worker felt that the employer failed to deal appropriately with her disputes and breached their own grievance policy by their failure to arrange a meeting and investigate the complaint as per their own procedure.

The worker and her husband spoke in detail about the impact of this dispute on their lives and that the failure of the employer to deal sensitively, timely and appropriately with her dispute where she feared for her life working with a patient in the psychiatric issues, had been the cause of loss of sleep, loss of earnings and was a source of continued distress for them as a family.

It was also detailed that she had concerns about whether she could ever return to the work place.

The employer detailed that all efforts had been made to deal with the worker’s dispute in an appropriate, sensitive and timely manner. Owing to the complexity of the issues as well as resource issues and shift patterns, it was not possible for the issues to be processed within the specified timeframe.

It was also detailed that Regulations within the Mental Health legislation as well as best practice govern recreational activities and therapeutic services to facilitate patients in restoring their optimal functioning and wellbeing and it is not unusual for patients to assist with meal times in this regard in the department.

The respondent outlined that they remained willing to hear the appeal of the worker’s dispute and would be happy to engage with relocating the worker and possibly promoting her, subject to her attaining Fetac Level 5.

The worker raised a dispute with the employer regarding her concerns. A grievance meeting took place and a report was issued and the worker wished to appeal the outcome of the grievance meeting, but thus far this has not been heard.

It was clear that there had been a large volume of correspondence exchanged between the parties regarding the complainant’s complaints. Whilst I will not be referring to every email, incident, witness or event, I have taken into account all of the submissions including oral and written made to me in the course of my investigation, including those received after the hearing (copies of which were forwarded to both sides) as well as the evidence presented relevant to this instant complaint.  

While I can appreciate the complexity of this dispute, S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 details that “the operation of a good grievance….procedure requires that all members of management, including supervisory personnel and all employees and their representatives be familiar with and adhere to their terms”.   While the employee contributed to some of the delays that arose, I do not find that management adhered sufficiently to the terms of the employer’s grievance procedure and failed to deal with the grievances in a timely manner“.

Based on the above I make the following recommendations that:

owing to the unique circumstance of this dispute, that compensation of €2,500 be paid to the worker for the failure of the employer to deal with the dispute in a timely manner.

the employer should set out clearly in their policy, a copy given to all employees, circumstances where it is appropriate to allow patients to work with employees as part of recreational activities and therapeutic services in line with to appropriate legislation, guidelines and best practice.

the employer should continue to support the worker if she wishes to obtain Fetac Level 5, which may allow her to be regraded to the position of multi-task attendant or health care attendant upon successful completion of said course

the employer should explore the accommodation of the worker in an alternative location.

CA-00012353-001

The claim is not well founded and is therefore, dismissed.

CA-00012353-002

I make the following recommendations that:

owing to the unique circumstance of this dispute, that compensation of €2,500 be paid to the worker for the failure of the employer to deal with the dispute in a timely manner.

the employer should set out clearly in their policy, a copy given to all employees, circumstances where it is appropriate to allow patients to work with employees as part of recreational activities and therapeutic services in line with to appropriate legislation, guidelines and best practice.

the employer should continue to support the worker if she wishes to obtain Fetac Level 5, which may allow her to be regraded to the position of multi-task attendant or health care attendant upon successful completion of said course

the employer should explore the accommodation of the worker in an alternative location.

Penalisation, industrial relations act, grievance procedure, safety, health and welfare