Complainant

Respondent

Anonymised Parties

A Paramedic

An Ambulance Service Provider

Representatives

Martina Weir SIPTU-Workers Rights Centre

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00023081-001

07/11/2018

The Complainant, who is a Paramedic, commenced working for the Respondent, an Ambulance Service provider, in April 2006.

On 24 September 2017, the Complainant lodged a written complaint against five of her work colleagues. Having received no response to her complaint by 11 October 2017, the Complainant commenced a period of sick leave from which she has not returned to work to date.

The Complainant’s sick pay ended on 8 November 2017, at which time she made an application for an extension to her sick leave pay. However, this was rejected with the result that the Complainant has been on basic Social Welfare pay since.

On 31 January 2018, the Complainant attended a meeting with members of the Respondent’s management team, which they had set up to discuss her return to work. At this meeting, the Complainant queried the status of her complaint.

On 28 March 2018, the Complainant’s Trade Union wrote to the Respondent seeking to establish the current status of her complaint which had been lodged on 24 September 2017.

The Complainant met with Management on 30 April 2018 for the purposes of completing a Workplace Stress Risk Assessment.

On 4 May 2018, the Respondent wrote to the Complainant and requested that she submitted a detailed account of the behaviours being complained of and the respondents against whom she was making the complaint. The Complainant was requested to submit this complaint under the Dignity at Work policy. The Complainant has submitted a complaint by way of letter dated 24 May 2018.

On 21 June 2018, the Respondent wrote to the Complainant, informing her that, following independent screening of her complaint as submitted on 24 May 2018, the alleged behaviour was deemed to come within the definition of bullying as defined in the Dignity at Work policy. The Complainant was also advised that an independent mediator had been appointed to conduct mediation if this was acceptable to the parties.

On 27 June 2018, the Complainant Trade Union Representative informed the Respondent on her behalf that she was not agreeable to engage in mediation and was seeking to have the matter move to the next stage of the procedure, which was a full investigation.

On 3 July 2018, a Return to Work meeting took place. In the course of discussions during and following this meeting, the Complainant articulated her preference for a return to work in an administration position pending the conducting of the investigation into her Dignity at Work complaint. The Respondent offered a return to the Complainant’s normal roster position. However, the Complainant did not find this option acceptable.

On 22 August 2018, the Respondent notified the Complainant that a complaint had been submitted to the HSE Investigation Unit for investigation. In addition, the Respondent informed the Complainant that while suitable alternative work locations were being explored, the option of returning to frontline paramedic duties remained. Further correspondence was exchanged between the Respondent and the Complainant’s Trade Union over the subsequent months. A further Return to Work meeting also took place on 10 October 2018.

As the matter of an acceptable return to work location remained outstanding, the investigation into her Dignity at Work complaint had not commenced and she continued on sick leave, the Complainant submitted a complaint to the Workplace Relations Commission on 7 November 2018 seeking adjudication of the dispute under the Industrial Relations Act, 1969.

The Complainant’s Trade Union representative made the following submissions in support of her claim:

·         While management have the right to allocate staff, as they see fit, they have, alongside this, a responsibility to manage staff fairly.

·         The Complainant had to wait an inordinate amount of time to have her DAW complaint processed through the normal procedures.

·         Management have a duty of care to the Complainant and, in her opinion, they have failed to uphold this. Management comments around the responsibility for the health and well-being of the five respondents in the Complainant’s complaint, made her feel that their needs were being placed above hers.

·         Management did nothing with her written complaint of September 2017, later suggesting that this was not clearly identified as a Dignity at Work complaint. Management also failed to have the issues clarified with her or formally screened. Her concerns were simply ignored until formally raised by her Trade Union in April 2018. The Respondent’s first action at this point was to seek to have the Complainant complete a Workplace Stress Risk Assessment Form. According to the Complainant, this appeared to be a cynical box ticking exercise, as no follow-up took place.

·         The Respondent’s Occupational Health Department had already identified her work-related stressors, however, no action was taken in this regard.

In conclusion, the Complainant’s Trade Union representative submitted that the Respondent had failed in their responsibility to the Complainant and, as a result, she suffered ill health and financial loss. The Complainant’s ultimate goal is to return to work. However, while the Complainant cannot force the Respondent to provide her with suitable alternative work, she is seeking to have her financial loss reimbursed so that some of the hardships suffered can be alleviated.

The Complainant requests a favourable recommendation in this regard.

In submission, the Respondent stated that their correspondence of 11 April 2018 to the Complainant Trade Union,   clearly set out that the Complainant’s absence from work has prevented the Respondent from being able to deal with the issues and that it was only on foot of correspondence, in March 2018, following a meeting in January 2018, that it was clear to the Respondent that there was a Dignity at Work (DAW) issue at hand. The Respondent further submitted that had been unclear, despite the Respondent having advised the Complainant on how to make such a complaint, if required.

The Respondent further stated that it was only after a clarified complaint was submitted in May 2018 that the Respondent could move to address the alleged DAW issues. According to the Respondent’s evidence, the process to deal with the DAW issues commenced with a HR screening, following which an investigation is now underway. With regard to the investigation, the Respondent submitted that they are awaiting the HSE Investigation Unit to commence the investigation. The Respondent further submitted that matters in relation to this investigation are outside of their control, including some delays which were due to the parties objecting to the original investigation committee and the requirement to have a gender balance on same.

With regard to the Complainant’s claim of loss of earnings, the Respondent submitted that, while the Complainant went on sick leave on 11 October 2017, her sick pay benefit ceased shortly afterwards (on 21 October 2017), due to unrelated prior events. The Respondent stated that this resulted in the Complainant’s sick pay benefits being exhausted, in line with the sick pay scheme limits, due to leave taken prior to October 2017.

In response to the Complainant’s request to have her sick pay benefits extended, the Respondent submitted that she did not meet the requirements for Critical Illness Pay (CIP), which is the system that would apply in such circumstances. The Respondent further submitted that the Complainant’s eligibility for CIP was assessed and rejected by Occupational Health. Further, in this regard, the Complainant submitted that they advised the Complainant on all sick benefits, including Temporary Rehabilitation Pay (TRP). However, the Respondent stated in evidence that the Complainant did not request inclusion in the TRP system.

According to the Respondent’s submission, they are of the view that, in 2017, the Complainant unnecessarily removed herself from work, thereby preventing them from engaging with her, as she advised she was not in a position to discuss matters with them in late 2017, contrary to Occupational Health recommendations in this regard.

With regard to the Complainant’s claim of loss of earnings due to non-redeployment, the Respondent noted that they have offered a number of options to the claimant to work in her role, as a Paramedic. The Respondent submitted that, in correspondence dated 20 November 2018, this was reconfirmed to ensure relevant accommodations were in place.

According to the Respondent’s evidence, they have, at all times, made it clear that they are happy to accommodate the Complainant in a different location, with relevant protections and accommodations, but this has been declined and is actually the cause of any perceived loss of earnings as the opportunity to remain in employment was and is in place with all practicable arrangement, accommodation and supports.

The Respondent further submitted that a return to work has been discussed at a number of meetings with the Complainant and her Trade Union representative. The Respondent further submitted that, at these meetings, they have explained that the office role, being requested by the Complainant, is not an appropriate option, as it is a differing grade and workstream, which includes ongoing verbal interaction with staff, including those the Complainant has named in her DAW Complaint. Further in this regard, the Respondent submitted that staff may visit the office during business hours on work-related matters and that this causes a further possibility of interaction, which the Complainant has sought to avoid.

According to the Respondent, by the Complainant may perceive the administration office as a 90-year-old for her, management must consider the overall position and can accept a situation where a complainant is attempting to dictate an assignment to a different role.

According to the Respondent, it is of concern that, on the one hand, the Complainant indicated that she would not go to a named hospital, in case she might meet any of the staff named in her DAW complaint. However, on the other hand, the Complainant feels she could manage to successfully interact with the staff by phone if she were to work in the administration office and also meet them face-to-face without issue.

The Respondent submitted that they cannot accept a situation where the Complainant appears to suggest that by not placing her in the role she is demanding, which is outside her grade and work stream, they (the Respondent) are at fault. The Respondent further submitted that, for whatever reason the Complaint has decided she wants the position in the administration office, they have explained that this is not possible nor appropriate. The Respondent also suggested that by demanding a position in the administration office, the Complainant is seeking to create an unworkable burden on her employer which is more than they would be expected to provide. However, notwithstanding the practicalities involved, the Respondent submitted that the post being sought by the Complainant has now been filled on a permanent basis.

Conclusion:

The Respondent submitted that they can understand that it is a difficult time for the Complainant awaiting the conclusion of a DFW investigation. However, the Respondent submitted, in conclusion that there is no reasonable reason for the Complainant’s absence from work and she has the option of being at work. In this regard, the Respondent submitted that they have tried to facilitate a return to work on numerous occasions and are prepared to offer a phased return to work.

The Respondent further submits that the Complainant’s current loss of earnings is due to not accepting the offer to return to work. Accordingly, the Respondent, they cannot be expected to pay the Complainant to remain off duty, pending the outcome of the DAW investigation, when she has been afforded the opportunity to remain on the payroll.

The Respondent reiterated its position that it is and remains incumbent on the employer to fully utilise available resources in the context of maintaining frontline EMT services. The Respondent submitted that they cannot facilitate a trained paramedic, who was deemed medically fit to do her contract role, to go into an administrative role that is not available or suitable. On that basis, the Respondent submits that, in their view, they are not responsible for the Complainant’s loss of earnings.

In the light of the foregoing, the Respondent seek that the position of Management is upheld and that it is recognised that any loss of earnings is due to the Complainant not taking up the accommodation available and removing herself from work, while attempting to place unreasonable requests on the employer.

Having carefully considered all of the evidence adduced, both in written submissions and by way of oral evidence at the Hearing, I make the following recommendations:

With regard to the Complainant’s Dignity at Work complaint, which was the source of and remains at the heart of her complaint, I recommend that the Respondent take immediate steps to ascertain the current status of that investigation, detail of which should be immediately relayed to the Complainant. In addition, I recommend that the Respondent emphasise to the Investigation Team the requirement to have the process expedited and brought to conclusion as quickly as possible and that they exercise whatever influence they may have in this regard in achieving that objective.

With regard to the Complainant’s claim of financial loss, while on sick leave, I recommend that she make immediate application to the Respondent for inclusion in the Temporary Rehabilitation Remuneration process. On receipt of such an application, I would recommend that the Respondent give favourable consideration to approving the application, as a means of addressing the Complainant’s remuneration situation, pending a return to work on full pay.

With regard to the Complainant’s return to work, I would recommend that the Respondent arrange for an immediate, comprehensive assessment of her fitness to return to work at the earliest possible date, notwithstanding whether or not the DAW investigation has concluded.

Once the Complainant has been certified as fit to return to work, I recommend that the Respondent make a final review as to the availability of an alternative office-based position.   In the absence of an administration role being available, I recommend that the Respondent make arrangements to return the Complainant to a rostered, frontline Paramedic position.   In particular, in this regard, I would recommend that the Respondent give serious consideration to placing the Complainant, if possible, in the Boyle district, at the Loughglynn station.

Further, in relation to the Complainant’s return to work, I recommend that, given the duration of her absence from work, the Respondent takes all practical steps to ensure that the Complainant’s return takes place on an appropriate and structured basis. Such consideration should include returning on a phased basis and the utilisation of accrued annual leave.

In addition, I recommend that the Respondent ensures that appropriate supports are in place on the Complainant on her return. Such supports might include, but may not necessarily be limited to, access to Employee Assistance support, appointment of a dedicated support/contact person, pending conclusion of the DA W investigation, and appropriate communication to all parties involved as to the requirement to work normally throughout the course of the DAW investigation.

That concludes my recommendations.

Industrial Relations Act