Complainant

Respondent

Anonymised Parties

Staff Nurse

Public Body

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-00026980-001

12/03/2019

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

CA-00026980-002

12/03/2019

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

CA-00026980-003

12/03/2019

The Complainant has made referrals under the Industrial Relations Act 1969 and the Health, Safety & Welfare at Work Act 2005. The complaints are that the Respondent failed to fully investigate bullying & harassment claims made by her against 3 colleagues, and that she was then penalised by being requested to work in another location involving 90 minute round trip.

The Complainant works as a Nurse. Since in or around 2008 she has been subjected to bullying and harassment behaviour from some of her colleagues. A manager in the area who became aware of the situation arranged mediation. The Complainant contends that the mediation was unsuccessful. She contends that management had a responsibility to investigate the matter fully and failed to do so. The Complainant has been out of work on sick leave since January 2018.   She was advised that she could return to work in a different location, which would involve a 90 minute round trip.   This, she contends is effectively a penalisation on her, which is contrary to section 28 of the Safety Health & Welfare at Work Act 2005.

In early 2015 the Manager in the area was made aware of a number of interpersonal difficulties between a number of staff in the Complainant’s area. These interpersonal difficulties had the potential to impact upon good working relationships within what is a very small unit. No formal written complaints were received. However mediation was offered to the parties. The mediation process was conducted by an approved Mediator over a number of months and in December 2015, the Mediator confirmed to the Manager that the process was successfully concluded. The Complainant went on maternity leave in March 2017 and did not return to work in January 2018. Follow up occupational health assessments indicated that (a) the reason for her absence was not a work related medical condition (5th April 2018) and (b) supported her intention to relocate upon returning to work (11th February 2019). Upon receipt of this latter report, the Complainant’s Manager sought vacancy opportunities for her outside her former reporting centre.   Two suitable positions were identified, one being 33kms from home or base and the other being 49kms. The first is within the PSA terms for relocation and the second is not. The Complainant and her union representative were advised of this and they were to consider the offers. Nothing further was heard by the Respondent until correspondence was received from the Complainant’s legal representative stating they were now referring the matter to the WRC.

Industrial Relations Issues

Despite no formal written complaint, mediation was offered and accepted and concluded.                           Therefore the Respondent is satisfied that there is no case to answer here in respect of negligence in investigating the matter.

Victimisation allegation, in respect of the Safety, Heath & Welfare at Work Act 2005.

The Complainant herself requested a move from her location. The Respondent is at a loss to know how their actions in trying to facilitate her could be construed as victimisation.

CA-00026980-001 and CA-00026980-002 – Industrial Relations Act 1969

The interpersonal difficulties between the Complainant and 3 of her colleagues date back to 2015.       I note the written confirmation from the professional Mediator in December 2015 that “the process has now concluded and agreement has been reached by the individuals involved in how to move forward and work together”.   This letter was copied to the Complainant and her 3 colleagues.         The Complainant contends that the mediation process did not work. The Respondent’s Dignity at Work policy provides:

“If the mediation process does not produce a satisfactory outcome, the complainant may seek to have the matter resolved through formal investigation”.

The Complainant contends that the mediation process did not produce a satisfactory outcome for her.   She did not however, request to have the matter resolved through formal investigation. I find that some three and a half years later, it would not be appropriate to re-open the matter again. I note the Complainant’s desire to return to work in another location.   I note the long commute which the Respondent’s offers of re-location involve. I recommend the Respondent seeks again to place the Complainant in a location nearer her home.

CA-00026980-003 – Safety, Health & Welfare at Work Act 2005

The Complainant contends that having made significant and serious complaints under the Dignity at Work policy same have not been investigated and she was further penalised by being relocated to a position which would involve her having to drive approximately 90 minutes round trip, which it is contended was retaliation for having made the original complaints.

The Legal Context What is in issue in this case is whether the Complainant was penalised within the meaning of s.27 of the Act. This section, in relevant part, provides: -

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 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.

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

o    (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 undersection 11or appointed undersection 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 Labour Court pointed out in O’Neill v Toni and Guy Blackrock Limited E.L.R. 21,

“it is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by Subsection 3. Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggests that where there is more 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” the Claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment.”

It is essential that the Complainant establish that he or she committed a protected act, within the meaning of Section 27(3) of the Act, before the other elements in this test come into play. The protected act upon which the Appellant relies in this case is the making of a complaint to the Respondent of a type envisaged by Section 27(3)(c) of the Act. That is to say a complaint relating to health, safety and welfare at work. The Respondent in this instant case denies that any such complaint was made. I note that the Complainant did not make a complaint or commit a protected act as provided for in Section 27 (3) and I therefore must conclude that her claim that she was penalised within the meaning of section 27 of the Act is not well founded.