ADJ-00021831

Complainant

Respondent

Anonymised Parties

An IT Systems Support Officer

A Hospital

Representatives

Aisling McDevitt, IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00028645-001

24/05/2019

The complainant commenced employment in the hospital in March 2003.  By the time of her retirement in May 2019, she was in a Grade V role of “Data Informatics and Reporting Officer” and she reported to the Manager of the Clinical Activity Reporting Unit (“CARU”).  In her job description, her role is described as “report-writing, data extraction and statistical compiling throughout the hospital to inform business intelligence as required by the Clinical Activity Reporting Unit”.  The complainant said that her job involved the maintenance of data quality, data governance and checking, the extraction of data for reports, staff training, answering telephone queries, drawing up organisation charts and attendance at project meetings and teleconferences.  At the hearing, the CARU Manager said that the complainant had considerable expertise in IT systems and data management.

Outline Chronology

In 2014, the complainant was working in the Patient Services Department and, around the time of an IT systems upgrade, she said had several grievances related to her job.  She said these grievances involved her requesting “tools to do the job that I had been assigned” and “requests for processes as to how things were done.”  Following a meeting with her Department Head and the HR Manager, she got a letter confirming that “improved work flows would be worked on,” but, she said that this didn’t happen. 

In August 2015, the complainant said that she was sent home from work.  She said that she remained absent until January 2016 because of workplace stress.  An advertisement was posted for a temporary Systems Officer to cover her role during her absence.  The person who got the temporary job was the brother of her line manager at the time and the complainant alleged that he got the job as a result of canvassing.  When she returned to work, the complainant was concerned at the access he had been given to the e-mail account for the job and to various IT systems. 

The complainant said that between 2014 and 2017, her post was “split and splintered by the introduction of various new posts.”  She said that one job was to communicate with and to represent senior management and this was assigned to a person at a higher grade than her.  The second job was to improve communications about processes and this was given to a less senior manager.  The complainant said that there was no improvement in her work processes because, in March 2016, her manager told her not to contact the person in the process role.  The complainant said that she submitted a formal grievance about this on three occasions, but she got no response. 

In April 2016, the complainant was moved to report to the manager of the Clinical Activity Reporting Unit, while still carrying out some work for the Patient Services Unit.

In February 2017, the complainant said that, following a meeting between two departments, her former line manager, the Head of Patient Services, made a complaint about her.  She made a counter-claim about her manager and about her working conditions, which, she claimed were very difficult.  An investigation was carried out by an independent consultant, but the complainant said that her own complaints were not considered.  She believes that the manager who complained about her counselled two witnesses about the evidence they gave to the investigator.  In her submission she said, “the Investigation Findings were that I was found to be of a bullying behaviour, albeit unintentional.”  The complainant appealed against this outcome; however, the hospital did not accept her appeal because it was submitted too late.  A disciplinary investigation arising from the findings of this report resulted in the complainant being issued with a written warning on January 18^th 2018.

At the hearing of her grievances on September 23^rd 2019, the complainant said that she did not consent to me reading the report of the independent consultant which was submitted in evidence by the hospital and I returned the document to Ms McDevitt.

In July 2018, the complainant said that she was listening to the radio at work and she heard a feature about the new General Data Protection Regulations.  She said that she thought that using the Regulations might be one way of getting her issues resolved.  On one day, she sent 33 e-mails to the HR Manager, requesting specific information and a designated reference number for each item, to assist her “to raise the issues with the Data Protection Office in relation to the fair processing of data about me.”  In August, the complainant sent a 50-page submission to a consultant gynaecologist / obstetrician at the hospital by way of an appeal against the disciplinary warning of January 2018.  These communications and what were referred to as “the excessive number of complaints / grievances / correspondence you have been sending to senior management since January 2018” resulted in a second disciplinary investigation.  On October 18^th 2018, the complainant was issued with a final written warning.  Her appeal against this warning was rejected.

In December 2018, the complainant said that scaffolding was erected on a building beside the office in the hospital where she worked.  An e-mail she sent to the HR Manager on January 3^rd 2019 informed him that “the scaffolding was erected over two days with constant noise, banging and shouting prior to December 8^th 2018.”  She said that the noise of the scaffolding being erected affected her ears and she couldn’t hear properly.

The complainant said that she told her manager about the noise, but the manager didn’t check the noise level or ask anyone else to do so.  The manager didn’t tell the complainant how long the noise would continue for.  The complainant said that this is a breach of section 8(2)(d) of the Safety, Health and Welfare at Work Act 2005.

In her submission, the complainant said that she can’t remember the dates on which the noise from the erection of the scaffolding occurred and that she was on holidays from December 7^th.  When she was on holidays, she said that she went to her doctor because her ears were sore.  She attributed this soreness to the noise from the scaffolding over several days.  Her doctor referred her for an appointment with an ear, nose and throat specialist.  By the date of this hearing, on August 14^th 2019, an appointment had not been arranged.

On December 19^th, the complainant refused to attend a meeting with her manager unless she had a colleague present as a witness.  The manager said that the meeting was about an operational issue and not a human resources issue and she told the complainant that a witness was not required at such a meeting.  The complainant said that she needed a witness because she couldn’t hear, because of the effect of the noise of the scaffolding on her ears.  The meeting went ahead with a witness.  The complainant said that she had a plaster on one ear “to muffle the noise.”

On January 3^rd 2019, the manager again asked the complainant to attend a meeting and she said that she wanted a witness with her because she couldn’t hear properly.  The complainant said that she felt that her manager was asking her to work “in an unsafe way because I could mishear her and make a mistake.”  In response to the complainant insisting on having a witness present at a meeting on January 3^rd, the complainant said that her manager said that she would have to escalate the matter to the HR Department.  The complainant said that, in her view, her manager should have completed an incident form.

Later on January 3^rd, the complainant got a letter inviting her to a disciplinary meeting scheduled for January 4^th.  She said that she was very stressed about the events of that day and she went to her doctor.  She didn’t attend work on January 4^th and she was on sick leave until January 14^th.  At 10.30am on the 14^th, she attended a meeting with the HR Manager who asked the complainant to re-consider her decision not to attend meetings with her manager without a witness present.  She insisted that she wanted a witness at any meeting with her manager.  The HR Manager asked the complainant to consider her decision again and he arranged to meet her later in the day.  Following a second meeting at 3.00pm on January 14^th, the complainant was suspended. 

Retirement Due to Incapacity

In the complaint form she submitted on February 6^th 2019, the complainant said, “I am currently on sick leave for stress.”  On the form she completed on March 14^th 2019 in relation to this complaint, she said that she went to her doctor and told him that “I couldn’t cope with things and that I wasn’t well at all and that I had just returned from sick leave suffering from stress and anxiety and that I was now feeling worse.”  On August 14th, at the WRC, the complainant said that she had suffered an injury at work and she consulted a psychiatrist.  At some point during her absence, she was examined by the hospital’s occupational health physician.  Following a discussion by telephone with her consultant, the occupational health physician wrote a report in which he concluded that that the complainant is permanently incapable of carrying out her duties at work and he recommended that she would be permitted to retire on medical grounds.

The complainant claims that, contrary to section 6 of the Employment Equality Acts 1998 – 2015 (“the Act”), by seeking to impose a disciplinary sanction, her employer has discriminated against her on the grounds of disability.

On December 19^th 2018, she said that her manager was in breach of an organisational policy when she failed to complete an incident form and did not arrange a back to work meeting with her following her return from her holidays during which she consulted her doctor about her sore ears.

On the same day, she said that her manager breached health and safety legislation by not moving her to a safe place to work.

On December 19^th 2018 and January 3^rd 2019, the complainant said that her manager failed to understand or take action regarding her hearing disability by not allowing her to have a witness at meetings and that this caused her to suffer from stress and anxiety because she couldn’t explain or assert her rights clearly.

At the meeting at 3.00pm on January 14^th, the complainant said that her right to privacy was breached when the witness that attended the meeting with her was informed of what she described as “confidential and private earlier meetings.”

This complaint is the same as that which was submitted under ADJ-00020545 and, at the hearing, the complainant repeated the same evidence.  On her complaint form, there was an added aspect to this complaint, where the complainant refers to reasonable accommodation, claiming that, because of her impaired hearing, her manager should have allowed her to have a witness at meetings.  She also claims that the decision to suspend her was “disproportionate and unreasonable” and that this constituted harassment on the part of the HR Manager.

For the hospital, Ms McDevitt argued that this is the same complaint as that which was considered under ADJ-00020545 and that it should not be adjudicated on again.

It is the respondent’s position that each of the complainant’s six complaints should have been lodged as one complaint and that it is opportunistic to lodge several complaints “whether out of negligence in the drafting of her original complaints or, in an attempt to artificially differentiate her claims in an attempt to claim multiple awards of compensation.”

Ms McDevitt referred to the decision of Mr Justice Hardiman in the Supreme Court case of Carroll v Ryan [2003] 1IR 309, where he stated:

“There is a well-established rule of law whereby a litigant may not make the same contention, in legal proceedings, which might have been, but was not brought forward in previous litigation.  This rule is often traced to the Judgement of Wigram VC in Henderson v Henderson (1843) 3 Hare 100.”

The complainant here has lodged various complaints about her former employer under the same legislation based on the same set of facts.  Ms McDevitt strongly argued that the complainant may not make the same claim twice.

I agree with Ms McDevitt and I find that this complaint is a duplicate of the complaint of discrimination submitted on March 14^th 2019 under ADJ-00020545.  Having heard the evidence presented to me at the hearing of that complaint, I found that the facts were not adequate for me to presume that discrimination had taken place.  As the facts of this complaint are the same, I must reach the same conclusion here.

It is my view that the complainant has failed to establish facts to show that she was suffering from a disability.  It follows therefore, that the onus of proving that discrimination has occurred does not shift to the respondent.

I have concluded that the complainant has failed to discharge the burden of proof which requires her to establish the primary facts that can be relied upon to establish a complaint of discrimination.  Based on this conclusion, I have decided that her complaint fails.

Discrimination, disability