Complainant

Respondent

Anonymised Parties

Staff Nurse

Health Service Provider

Representatives

Valarie Kearins Solicitors

 Kevin Little

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

11/12/2019

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 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 (location Y) 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.

At the heaing  the claimant stated that  a national health service provider  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 , the DON  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  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 the PIC  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  had  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 Health & Safety legislation 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 of the Safety, Health & Welfare at Work Act 2005  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 representative has confirmed  that the date of occurrence of the alleged penalisation was the date of the meeting of the 18.09.2019.

While I acknowledge that the respondent’s motivation for proposing to move the claimant back to a congregated setting (Y)- as set out at the meeting on the 18th.Sep. 2019 - was based on what was perceived to be a pragmatic solution to a conflict between 2 staff members , I find the effect of this proposal was entirely unfair to the claimant .The claimant had competed against colleagues to move to the community unit (X) and consequently while it is not disputed that her pay and conditions remained unaffected , it was not unreasonable or the claimant to perceive  the relocation back to a congregated setting as demotion. Expressions of interest were sought from staff on moving to Community House X and they competed against each other to relocate to the community setting.  The move involved a transfer of duties and a change to a location 5  kilometers away from location X.. On the basis of the submissions made   by both parties , I have concluded that the decision  relocation /transfer of duties /demotion  were directly   linked  to  the claimant’s expressed concerns to her manager about  safety , health and welfare at work.

Penalisation for making a complaint regarding health & safety in the workplace