Complainant

Respondent

Parties

Donna  O' Boyle

Health Service Executive

Representatives

Valarie Kearins Solicitors

 Kevin Little

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-00035709-001

08/04/2020

In her complaint to the WRC under the Industrial Relations Acts, 1969  which was received on the 11.12.2019 , the claimant referenced “ Mental , physical and emotional health effected due to the failure of the employers duty of care due to severe stress related environment”.Her later complaint under the Safety , Health and Welfare at Work Act ,2005 – received on the 8th.April 2020 - refers to a threat of being moved from her current location and other adverse treatment arising from having made a complaint about health and safety.The respondent denied any inappropriate treatment and contended that their actions were reasonable and appropriate in the circumstances.

The claimant’s representative made the following submissions on behalf of the claimant –

The claimant worked as a staff nurse in the Learning Disability Services for 13.5 years in a congregated setting and subsequently moved to a community setting (location X) in March 2018.She was a registered person in charge at this location earning €65,000 p.a. basic and €80,000p.a. gross taking into account overtime , night and weekend work.

In February 2019 , the claimant as Team Leader was assigned to manage Health Care Assistant Mr.A  and encountered significant challenges. It was submitted that the claimant did the majority of the physical work and he persistently questioned established procedures “ with a view to doing them his way”. When asked he failed to respond promptly  and failed to do a lot of the physical hard work. His note taking was poor and lacking in detail  and failed to conduct regular night time checks and on one occasion left a service user unattended in a hoist. It was submitted that the claimant spoke to Mr.A on numerous occasions , to no avail. It was submitted that Mr.A did not like dealing with intimate care and would cough and burp when it was being done “ in close proximity to the claimant’s face”. It was the claimant’s understanding that other staff had also complained about Mr.A. The claimant brought her difficulties to the attention of the PIC and the DON (Director of Nursing) on the 29.04.2019 and stated  it was causing her stress. Management undertook to deal with Mr.A’ s performance over a 6 week period but it was contended that no improvement ensued. The claimant sent a further email detailing her complaints to the DON and the PIC in June 2019 with a follow up email on the 9.09.2019 in which she asserted as follows :

“……….. I have tried on a number of occasions to contact you regarding the stressful situation I have been working in over the last 7 months in the community house. As you know I met with you and the PIC on the 23.04.2019 regarding my concerns and issues I have been experiencing working with said Mr.A. I feel I have done everything  that you have  asked me  to do but I feel now I am being bullied into working with said HCA. As you are aware there is only myself and said HCA on duty at night time and as I have said to you before I am doing 2 persons workload which is taking a huge toll on my body physically which you have commented on when I met you on the 23rd.04.2019 which is 20 weeks ago. I have spoken to said HCA on a number of occasions about the way he communicates towards me on a nightly basis and no improvement has been observed. He has completed a further 6 weeks now with an action plan in place and I still have concerns for health & safety.As you are aware I am off duty today and I am here emailing yourself about work issues that you are more than aware of. I feel I have followed the grievance procedure and I feel said HCA is being fully cared for but I feel my concerns are not being listened to and its taking a toll on my mental health”.

A meeting ensued between the claimant and the respondent on the 18.09.2019 , the claimant was advised that she was being moved back to the congregated setting – location Y.The claimant objected asserting that she regarded this as demotion. It was submitted that this was making the claimant move in circumstances where she made the complaint on health & safety. The congregated setting was being wound down and was not a permanent solution – her workload would likely increase as there was a higher ratio of service users to nurses there .It was submitted that although the claimant had no complaints against  her previously , the DON said the claimant was a very fussy worker and it was very hard to get someone to work with her. It was submitted that the claimant was shocked and asked who was not happy to work with her .The claimant asked the PIC did anyone  refuse to work with her and she replied no , not to her knowledge. It was submitted that the tenor of the meeting was that the claimant had done something wrong and was a reaction to her complaint.The claimant went on sick leave on the 25.09.2019 and has not returned to work since.

It was submitted that after the 18.09.2019 , the claimant developed mental health issues and was diagnosed with an eating disorder. The representative presented  a summary of the claimant’s ensuing  illness and hospital treatment. It was submitted that the claimant had been suffering from eating disorders leading to severe anaemia .The claimant was engaging currently with the respondent about returning to work – she had sought an assignment to an administrative position but the DON said this was not an option .It was submitted that the claimant made a complaint about health & safety , arising from which she suffered the detriment of being threatened to be moved to a less favourable place of work which she saw as demotion. It was submitted that the claimant had suffered mentally as a result of this treatment.

The claimant’ s representative submitted that the claimant  suffered detriment in the context of a change in duties and a change in location.The employer proposed a unilateral move without any consultation.

In her direct evidence the claimant stated that  the HSE took over the running of the  service from 2012 and set out a chronology of her attendance / shift patterns. When she complained about  Mr.A   the claimant was told she would have to give him time to get used to the routine .She stated that communication between her and Mr. A was very poor and that she ended up effectively doing both jobs – although they were to work as a team. She asserted that when it came to intimate care , Mr.A was rude  , that he would burp and cough and conditions were very difficult. The claimant expressed her dissatisfaction with the action plan for Mr.A in June 2019  and her concerns about his performance continued. She asserted another staff member also had issues with Mr.A . The claimant said that Mr.A was not meeting the standards required by HIQA in recording and documenting incidents .She alleged that Mr.A did not check on  service users at night. Difficulties also arose with hoisting protocols  and many of her concerns remained unaddressed. The claimant stated that she was very stressed and her manager Mr.B had expressed concern over her declining physical health. The claimant reported to her manager in September 2019 that there had been no improvement in Mr.A’s performance. At the meeting on the 18th.September , Mr.B informed the claimant that she would be moving back to location Y – a congregated setting – she saw this as a retrograde step as the unit was being wound down and there was a lower staff ratio of staff to service user. She stated that the Director of Nursing  Mr.B opened the meeting by telling the claimant that she was being moved .Mr.B told the claimant that she was very fussy  and had  very high standards. She believed she was being moved because of the complaint she had made about Mr.A. The claimant asked her line manager had any staff member  ever complained about her  and her reply was “ not to her knowledge” .The claimant set out a chronology of her ensuing consultations on her medical situation and hospitalisation. The claimant stated that she  had welcomed the move to location X and had spent up  to 18 months there – she had been interviewed for the position and saw it as a promotion.

The claimant’s representative submitted that the claimant had  an appetite  to work in the community field as opposed to a congregated setting. He asserted that Section 27 prohibited any act or omission that detrimentally affects a worker – it was acknowledged that was no reduction in pay but the reassignment involved a change of location and a transfer of duties. He submitted that it did not matter that the claimant’s wages did not change .It was submitted that Section 27  outlawed the move of the claimant to another location .It was not reasonable for the claimant to go into a meeting to be informed she was being moved – this was something she did not want.

The respondent accepted that the claimant had raised concerns about Mr.A . It was submitted that her complaints were taken on board and that she was consulted on the plan of action devised to address the problems and agreed to the plan .Ultimately a decision was taken to move the claimant to location Y under the same terms and conditions of employment. It was submitted that the claimant continued to be paid at the same grade  and that to characterise this is a demotion was misconceived. It was suggested that the claimant’s sick leave was a reaction to this revised assignment. It was submitted that the claimant was not treated any less favourably  and that no compensation was warranted. It was submitted that the reassignment was nothing unusual and a normal practise in employment. It was advanced that the reassignment was done for the benefit of the employee and there was a meeting scheduled for the afternoon of the hearing  to initiate discussion on the claimant’s return to work. This had been arranged before  the respondent was aware of the date for the hearing. The DON  Mr.B asserted that a PIP was carried out , the actions were completed and the claimant was happy with the plan .The plan was put in place , an intimate care plan was devised and Mr.A  was required to familiarise himself with each individual care plan and to carry them out to a high standard. It was submitted that the action plan remains in place and Mr.A continues to work under the direction of another nurse.Mr.B stated that he believed the claimant would get more support in location Y.

It was submitted that the suggestion that the move of the claimant infringed on Health & Safety was preposterous. It  was submitted that this was done in the best interests of the patients under the direction of Mr.B the Director of Nursing .The respondent was prepared for an open discussion on the claimant’s return to work – it was advanced that claimant had suffered no material  detriment – she remained on the same pay and terms and condition of employment ; no loss was incurred and no  transfer of duties .Both locations X & Y were under the one managerial unit and it was the responsibility of the Director of Nursing to deploy staff to the best benefit of service users.It was submitted that the respondent did what was asked of him and no further issues had been raised about Mr.A’s performance at work. The representative stated that the claimant was in the process of pursuing a personal injury claim. It was submitted that the respondent had acted reasonably , provided supports for the claimant , paid the Sick Pay Scheme  and referred the claimant to Occupational Health. Since her move to location X the claimant had voluntarily  worked overtime at location Y and consequently the move could not be seen as a demotion.

The claimant’s complaint under the Health, Safety & Welfare at Work Act , 2005 was received on the 8th.April 2020.The claimant’s representative has confirmed  that the date of occurrence of the alleged penalisation was the date of the meeting of the 18.09.2019.Consequently , the complaint is out of time by approx. 3  weeks.The parties representatives were invited to make written submissions to the WRC on time limits and the matter of reasonable cause.The claimant’s representative made the following submission:

It was submitted that it seemed correct that the claim form for penalisation was lodged on the 8.04.20 and the first act of penalisation was the 18.09.2019.It was submitted that the employer did not raise the point either in correspondence or submission or at the hearing .It was advanced that the respondent should be asked if they were relying upon this point.It was submitted that the penalisation was an act continuing after the 18.09.2019 and not an act which  began and ended on the 18.09.2019.The DON said the claimant would be moved from the Community House to a congregated residential unit .It was submitted that the complainant went out sick on the 25.09.2019  and had not returned to work since , though she continued to be an employee.It was asserted that the respondent never retracted the direction or decision for her to move to Y location.It was submitted that the change in terms and conditions remained and continued and this was and is an ongoing breach.

It was further submitted that in the alternative there was reasonable cause for an extension of time from 6 to 12 months for reasonable cause for the following reasons :

The claimant’s mental health was very poor in the 6 months after the 25.09.2019.The claimant was hospitalised from the 25.09.2019 to the 11.10.2019.She continues to be certified as unfit for work due to mental health issues from the 25.09.2019.The claimant lodged her complaint with the WRC on the 11.12.2019 under the Industrial Relations Acts only , claiming many of the same facts.It was only after the advices of Counsel on the 30.03.2020 that a claim for penalisation was recommended – many of the underlying facts remained and could not have surprised the respondent.It was submitted that the claimant made a Data Protection request relevant to the allegations on the 10.12.2019 and it was never complied with.The claimant’s representative requested that if the penalisation complaint was deemed to be out of time that a recommendation issue under the Industrial Relations Acts taking all of the complaints into account.

The respondent replied as follows to the foregoing submission :

It was submitted that the question of 'reasonable cause' an extension of the statutory time limit from 6 to 12 months was addressed in 2017 by the Labour Court in QFF Distribution Limited and Keith O'Reilly PD/17/1.

It was contended that in  this case the decision of the Adjudicator was upheld and the employee appeal to the Court under the Protected Disclosures legislation dismissed. The reason given by the Court for their decision was because the Appellant was well enough to submit a complaint under the Payment of Wages Act 1991.

It was submitted that the respondent was relying  on the fact that this complaint under the Health and Safety legislation was submitted outside the 6 month statutory time limit and is thereby excluded. It was advanced that it seemed  to introduce unwelcome and unnecessary complexity to the initial complaint submitted under the Industrial Relations Acts; a complaint that was submitted within the time limit for that legislation.

It was submitted that the Complainant, was well enough to make a detailed complaint on the same substantive matter of complaint under the Industrial Relation Acts within 6 months of the meeting that was  the subject of the complaint.

As a result of the complaint made under the Industrial Relations Acts, clearly the complainant was in full knowledge of the facts prior to the expiry of the 6 month time limit. Error, omission or oversight on the part of the Complainant, to add complexity to the prosecution of her substantive complaint does not,  it was submitted ,  provide a justifiable excuse for the delay.

It was submitted that the Complainant was  not prejudiced by a decision to refuse the application to extend the time limit to 12 months, as she still has the ability to prosecute the substantive matter through her Industrial Relations complaint.

In conclusion it was asserted that facilitation of this application  would run counter to established Labour Court precedence.

I have reviewed the evidence presented at the hearing and the submissions of the parties on the matter of time limits.

Sec (6) of the Workplace Relations Act states,” Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”.

Sec 8 states, “An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause”.

Reasonable Cause

I note that the Labour Court in the Cementation Skanska and Tom Carroll DWT 0338 case stated, “, it is noted that the standard required by this subsection is that of “reasonable cause”. This may be contrasted with the much higher standard of “exceptional circumstances preventing the making of the claim” which is provided for in other employment related statutes. The Act gives no guidance as to the type of circumstances that can constitute reasonable cause and it would appear to be a matter of fact to be decided by the Rights Commissioner (and by extension the Court on appeal) in each individual case. It is the Courts view that in considering if reasonable causeexists, it is for the claimant to show that there are reasons, which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make    sense , be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present his or her claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence, there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time. In the context in which the expression reasonable appears in the statute it imports an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case”.

I have considered the authority relied upon by the respondent. Additionally I have had regard to the provisions of EET152  - the circumstances of which are  not dissimilar to the instant case.The Court found as follows :

“It seems clear to the Court that the Complainant formed an intention to bring proceedings under the Act on or about 23rdJanuary 2013. It was on that date that the Complainant wrote to the Respondent and made express reference to bringing a claim under the Act. In a reply dated 6thFebruary 2013 the Respondent made it clear that any such claim would be resisted. At that point all of the factors necessary to present a claim were present. Moreover, the Complainant told the Court that she had obtained advice from the Citizens Information Service and that she had joined a trade union from which she received advice in relation to taking a claim. The Court was told that the Complainant was advised by the Union of the time limits for bringing a claim.

It was submitted on the Complainant’s behalf that she was not in a position to recall or record the detail of the treatment upon whichher claim is grounded by reason of her psychiatric health at that time. However, the Court does not accept that in order to present a complaint to theEquality Tribunal it was necessary toprovide a particularised account of the circumstances giving rise to the claim.

The Court is satisfied that in January 2013 the Complainant knew that she had grounds for taking a claim under the Acts. By February 2013 she knew that the Respondent would fully defend the claim if made. At that stage she had the benefit of professional advice, including advice on the necessity to comply with the statutory time limit. Against that background there is nothing in the material before the Court from which it could be held that the factors relied upon in advancing this application either explained the delay or provided a justifiable excuse for the delay.

Outcome In these circumstances and on the established tests, the Court cannot grant the extension sought. Accordingly the appeal is disallowed and the decision of the Equality Tribunal is affirmed”.

In the instant case , the claimant lodged her complaint under the Industrial Relations Acts on the 11th.Dec.2019 – knowing that she had grounds for making a complaint and at that point in time had the benefit of professional advice.While I fully acknowledge the compelling medical challenges the claimant was facing during this period , the granting of  an extension of time  in circumstances where she had already lodged a complaint under Industrial Relations legislation would be inconsistent with the authorities set out above .Accordingly , I find the complaint is out of time and I have no jurisdiction to investigate the complaint under the Safety , Health & Welfare at Work Act , 2005.