FULL RECOMMENDATION
PARTIES : IRISH PRISON SERVICE DIVISION :
SUBJECT: 1.Appeal of an Adjudication Officer's Decision No(s)ADJ-00023593 CA-00029661-001
This is an appeal on behalf of the Irish Prison Service (‘the Respondent’) from a decision of an Adjudication Officer (ADJ-00023593, dated 22 June 2020) under the Safety, Health and Welfare at Work Act 2005 (‘the Act’). The Adjudication Officer found that Ms Maylena McEvoy (‘the Complainant’) had been penalised by the Respondent within the meaning of section 27 of the Act and awarded her compensation of €65,000.00. The Respondent appealed from that decision by Notice of Appeal received by the Court on 23 July 2020. The Court heard the appeal over two days in a virtual courtroom on 17 June 2021 and 25 August 2021. The Court heard the Complainant’s evidence and the evidence of the following witnesses on behalf of the Respondent: Mr Enda Kelly, Ms Anne Collins, Mr Colm T Hickey and Ms Elaine Higgins. The Factual Matrix The key events and relevant facts in this appeal can be summarised briefly as follows. The Complainant, at all material times, was an agency nurse employed by CPL Healthcare (‘CPL’) and assigned to work for the Respondent. Prior to becoming an employee of CPL, and up until June 2018, the Complainant had worked in the Midlands Prison in Portlaoise through a different agency (Nurses on Call). It is common case that the Complaint during her time working in the Midlands Prison was regarded as an excellent nurse and she had developed a good relationship with Ms Anne Collins, the Chief Nurse Officer there. It is common case that when the Complainant commenced employment with CPL in June 2018, she was advised that she was contractually required to complete two courses (one in infection control and the other in managing vulnerable patients). She was employed by CPL and assigned by it the Prison Service on the understanding that she would complete those courses at the earliest opportunity. As things transpired, the Complainant didn’t do so although the courses had been booked for her by CPL in June 2018 and again on 20 February 2019. Ordinarily, agency nurses are required to pay for these courses themselves. The Complainant retrospectively told her employer, following her non-attendance at the courses in June 2018, that she didn’t have the resources to pay for them at the time. CPL had undertaken to pay for the course in February 2019. The events that culminated in the within complaint under the Act took place in the Midlands Prison. In June 2018, the Complainant was assigned by CPL to work a number of shifts at Cloverhill Prison. On 26 June 2018, the Complainant and the Chief Nurse Officer in Cloverhill had a dispute following which the Complainant did not attend for further shifts at Cloverhill. Instead, she made direct contact with Ms Collins to enquire about availability of work at the Midlands Prison. Ms Collins engaged her under a local arrangement to cover shifts there. That arrangement was subsequently communicated to CPL. At approximately 7.00 pm on 27 November 2018, the Complainant – accompanied by a prison officer - was administering medicines to prisoners when she was approached by a prisoner for the second time that day. (The same prisoner had also attempted to engage the Complainant earlier that afternoon.) The prisoner inappropriately touched the Complainant on her breast. On 29 November the Complainant – with the assistance of the medical secretary in the Prison – completed and submitted a P19 complaint against the prisoner in question arising from the sexual assault she had experience two days earlier. The Prison Governor considered the Complainant’s P19 complaint on 30 November 2018, in the usual way i.e. the prisoner in question was interviewed by the Governor and was given an opportunity to state his version of events. A complainant in a P19 matter is not normally interviewed as part of the Governor’s investigation unless the prisoner against whom the complaint has been raised disputes the allegation against him or her. In this case, the prisoner did not dispute that he had inappropriately touch the complainant’s breast. However, the prisoner in question is not a native speaker of English. By way of explanation for his actions on 27 November 2018, he told the Governor that he was attempting to communicate to the Complainant that he had a cardiac issue and wanted to see a doctor. He had initially pointed at his heart but felt he wasn’t getting through to the Complainant so he reached for a pen that was in a pocket in her uniform thereby inadvertently brushing his hand against her breast. The Governor accepted this explanation and administered a Reprimand to the prisoner. The Complainant was not informed of the outcome of the P19 process. The Court was told by Chief Officer Hickey that it is not standard practice in the prison service to follow up with staff who make P19 complaints to inform them of the outcome. Later that the same day – 30 November 2018 – Chief Officer Hickey ran into the Complainant in the rotunda area and engaged her in relation to the sexual assault issue. He advised her to report the matter to An Garda S?ochána. She told him, however, that she didn’t wish to involve the Garda?. There is a discrepancy between the Complainant’s account of this encounter and that of Chief Officer Hickey. The Complainant told the Court that the area was busy at the time and there was a risk that the conversation could have been overheard by prisoners or prison officers. Chief Officer Hickey, on the other hand, said that at the time the encounter took place the prisoners were on lock down and nobody was in earshot during his conversation with the Complainant. Ms Collins was on bereavement leave for a number of weeks in November 2018. She told the Court that following her return to work the Complainant had sympathised with her on her loss but had not said anything to her about the November incident. Ms Collins said that, in fact, she did not learn about the sexual assault incident and the Complainant’s P19 until a later date. Mr Enda Kelly is the National Nurse Manager for the Respondent. He oversees all full-time nursing staff in the prison system and liaises with CPL with regard to the supply of agency nurses to supplement the cohort of directly employed nursing staff. Following the incident in Cloverhill Prison on 28 June 2018, the Nurse Manager involved contacted Mr Kelly to report the incident to him. Mr Kelly referred the matter to Mr Declan Coughlan of CPL who undertook to investigate the matter and report back to Mr Kelly. It appears Mr Kelly heard no more about the matter from either Mr Coughlan or the Nurse Manager in Cloverhill. However, in early January 2019 when reviewing patient data for the previous twelve months, Mr Kelly came across clinical nursing entries in patient notes involving the Complainant. He recalled the Complainant’s involvement in the incident of 28 June 2018 and that he had not heard anything further about the investigation that CPL was to have carried out. He, therefore, made contact again with Mr Coughlan who advised him in the course of their conversation that the Complainant was refusing to complete training courses (with respect to dealing with vulnerable adults and with respect to infection control) which had been repeatedly arranged for her and which she was required to complete in accordance with the terms of her contract of employment with CPL. As a result of what Mr Coughlan had told him, Mr Kelly then contacted Nursing Manager Anne Collins and informed her that the Complainant’s planned shifts were to be cancelled as she was ineligible to work in the prison service due to her failure to complete the aforementioned courses. When she was notified of this decision by Ms Collins, the Complainant contacted Mr Kelly directly by email. However, Mr Kelly didn’t engage with the Complaint choosing instead to forward her email to Mr Coughlan to deal with the matter as the agreement between the Respondent and CPL provided that all HR matters were the responsibility of the latter. At the meeting, Mr Kelly reiterated that the Respondent held the Complainant in high regard professionally and advised her that she could resume work in the prison service on completion of the outstanding courses. As mentioned earlier in this Determination, CPL had booked and paid for courses for the Complainant which were due to take place the following day, 20 February 2019. The Complainant did not attend those courses and did not return to work for the Respondent. She told the Court that she has since returned to Nurses on Call and has completed the courses there. The Complainant The Complainant outlined the history of employment as an agency nurse within the Prison Service where she commenced in November 2016 and enjoyed an excellent working relationship with her colleagues. She told the Court that her training and experience to date had equipped her well for a career in the nursing service with the Respondent and it had been her intention to apply for a permanent job there when the opportunity arose. Therefore, the decision to discontinue her shifts in January 2019 – as a consequence, she believed, of her raising a complaint of sexual harassment through the P19 system – came as a devastating blow to her. It had shattered her career aspirations and caused her to suffer mental health issues. She said she was particularly disappointed with the Respondent’s failure to follow up with her and provide support to her following the incident of 27 November 2018. The only contact she had received from the Respondent was in the form of a conversation she had had with Chief Officer Hickey in the rotunda when he advised her to refer the matter to An Garda Siochána. She told the Court that she believed the Respondent would deal with the matter appropriately and provide her with the necessary support and that fear of suffering additional trauma informed her decision not to refer a complaint to the Garda?. At that time, she was about to commence a period of continuous employment as opposed to working on ad hoc days for the Respondent. When asked by her Counsel why she hadn’t completed the courses on safeguarding vulnerable adults and infection control she said that the matter had slipped her mind but that she wasn’t an outlier in this regard; other agency nurses she knew of were in a similar position. When asked why she had recorded the meeting that took place with Mr Kelly and Ms Higgins on 19 February 2019, the Complainant told the Court that she did it for her own safety and for the sake of her registration as a nurse. She said she believed that CPL’s loyalty in the circumstances would lie with the Respondent as the contract to provide agency nurse to the Prison Service is a lucrative one. She regarded the discussion that took place in the course of the meeting about the Cloverhill incident and the training requirements she had to complete as a ‘smokescreen’. She also told the Court that she believes she would have returned to work with the Respondent had she received an apology from the Respondent for the events of 27 November 2018 and had she been assured that the matter had been fully investigated. She said she didn’t attend for the courses booked on 20 February 2019 and paid for by CPL because she would have had to pay for childcare and travel to Dublin. Mr Kelly gave a brief account of his role and responsibilities as National Nurse Manager with the Respondent including co-ordinating with CPL as the sole provider of agency nursing staff to the prison service. He confirmed that Ms Higgins was his point of contact in CPL but that he dealt, at the material time, with Mr Declan Coughlan in relation to day-to-day matters. Asked to explain his reasoning for cancelling the Complainant’s shifts on 17 January 2019, the witness referred to good clinical governance and the requirement that nurses must keep up to date with their training and certification. He also stated that nurses have a contractual requirement in this regard but stated that a degree of latitude is given to facilitate nurses completing the necessary courses but ultimately somebody who continues to be non-compliant cannot be retained in employment. Specifically, his decision to cancel the Complainant’s shifts, he said, was based on his conversation that day with Mr Coughlan who had told him that CPL had made extensive efforts to get the Complainant to attend the two outstanding courses to no avail. His decision, he told the Court, was based on a concern that the Respondent could be exposed to liability. The witness said he had no direct dealings with the Complainant with regard to his decision but received an email from her subsequently which he referred to Mr Coughlan. The witness was emphatic that he did not cancel the Complainant’s shifts because of the sexual assault incident or because of her reporting it via the P19 system. He said that he encourages the use of the P19 system by nurses on the rare occasion that an incident occurs involving a nurse and a prisoner. The witness explained that he had brought it up because, in his view, it was appropriate to acknowledge that the issue had occurred and hadn’t been handled properly. The witness reaffirmed his position that the cancellation of the Complainant’s shifts in January 2019 had nothing to do with the sexual assault issue or the Complainant’s filing of a P19 report in relation to it. He said it has always been his stated position that nurses should report any incidents with prisoners. The witness briefly outlined her role and responsibilities as Chief Nurse Officer in the Midlands Prison. She told the Court that the Complainant had worked as an agency nurse in the Midlands Prison in late 2016 and early 2017 before going on maternity leave. The witness said that she was very happy to have the Complainant return to work for her in 2018. She described the Complainant as being very flexible and very facilitative. The witness told the Court that she didn’t have any discussion with the Complainant about her outstanding courses in 2018 as this was a matter for CPL to deal with. The witness briefly outlined his role and responsibilities as one of a team of three chief officers in the Midlands Prison. He explained how the P19 process works. He gave a detailed account of how the Complainant’s P19 was filed and subsequently processed and the timeline that applied. He told the Court the Complainant filed the P19 on 29 November 2018, two days after the sexual assault incident with the prisoner. The matter was addressed in the normal way by the Governor on 30 November 2018. Both the witness and Officer Flynn were present when the Governor heard the prisoner and issued a reprimand having heard and considered the prisoner’s ‘explanation’ of how he had come to touch the Complainant’s breast inappropriately. He emphasised that he has thirty years’ service as a prison officer and he is fully aware of the need for discretion and confidentiality. He proceeded to tell the Court that he personally reported the matter to An Garda S?ochána and requested a Member to attend at the Midlands Prison. This didn’t happen and it appears the Garda? do not have a record of his report. The witness said the Complainant did not approach him about the issue subsequently although his office door is open to all staff and the Complainant passed his door daily. He also stated that it is not usual for there to be any follow up with a member of staff who makes a P19 complaint. The witness briefly outlined her role as Director of CPL Healthcare and gave details of the arrangement in place between CPL and the Respondent for the supply of agency nursing staff. The nurses are employed by CPL but work under the direction and control of the Respondent. All nurses employed by CPL are issued with a standard contract of employment, are subject to Garda vetting and are required to supply three satisfactory employment references. The standard contract of employment contains a provision in relation to mandatory certificates that each nurse is required to maintain up to date. The normal arrangement, according to the witness, is that each nurse pays for the courses they are required to complete as it would not be feasible for CPL to do so given the transient nature of agency employment. However, CPL does occasionally waive the fees for courses in the case of individuals who have demonstrated commitment to ongoing employment with CPL. The witness also told the Court that there is a contractual requirement on CPL nurses to notify CPL of any incidents that occur in their place of work. When an incident report is filed by the nurse with CPL, CPL will follow up with local management and human resources to ensure the issue has been resolved. On the day of the meeting – 19 February 2019 – the witness met the Complainant at the lift and asked her again should she raise the assault issue at the meeting but the Complainant asked her not to do so. The witness stands by everything she said at the meeting. She confirmed to the Court that the meeting concluded on the note that the Complainant was welcome to do the courses booked for the following day (20 February 2019) and thereafter return to work with the Respondent. The witness told the Court that it was her expectation leaving the meeting that that is what the Complainant would do as she believed the Complainant was keen to secure a permanent appointment with the Respondent. The witness then told the Court that the Complainant hadn’t attended the courses on 20 February 2019 but did contact the witness that day by email to enquire about an investigation into the sexual assault incident of the previous November. At the time the witness was abroad recruiting nurses in the Philippines. In her replying email to the Complainant, the witness queried why the Complainant hadn’t raised the issue at the meeting on 19 February 2019. She then went on in her email to outline the respective roles of the Respondent and CPL with regard to dealing with workplace incidents. Finally, the witness confirmed that the door is open should the Complainant wish to resume employment with CPL as she is an excellent nurse. Submission on behalf of the Complainant Counsel for the Complainant submits that the P19 filed by the Complainant constitutes a complaint within the meaning of section 27(3)(c) of the Act. He further submits that there was a clear causal connection between the making of that complaint and the decision of the Respondent to cease its engagement of the Complainant, which decision he urges the Court to find, caused the Complainant a detriment in the form of distress, damage to her reputation and also prevented her from obtaining full-time employment at the Midlands prison. Counsel for the Respondent submits that the Complainant’s circumstances do not satisfy the ‘but for’ legal test required for the establishment of penalisation. The Respondent’s case is that the reason why the Complainant’s future shifts as an agency nurse were cancelled was her repeated failure to complete training courses that she was required to do as part of her contract of employment. Accordingly, she was deemed ineligible by CPL to continue working for the Respondent until these courses had been completed. However, had she completed the courses she was welcome to resume her engagement with the Respondent as she was highly regarded professionally. “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 ofsubsection (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— (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 tosubsection (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.” This Court gave detailed consideration to the proper interpretation of section 27 in its Determination inO’Neill v Toni and Guy Blackrock Limited[2010] E.L.R. 21 wherein it stated:“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 determent 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 suggested 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 determent.” Discussion and Decision It is clear to the Court, as a matter of logic and law, that the finding made by the Adjudication Officer, at first instance, to the effect that the intervention made by Deputy McSharry at a meeting of the Public Accounts Committee on 17 January 2019 was somehow an operative factor in the decision taken several hours earlier on that date to temporarily cease the Complainant’s scheduled shifts as an agency nurse in the service of the Respondent is incorrect. It was agreed with the Parties’ representatives at the outset of the hearing of the within appeal that the claim being pursued by the Complainant was not as it had been characterised by the Adjudication Officer. The core of the Complainant’s claim as presented to the Court is that she was penalised within the meaning of section 27 of the Act as a consequence of having made a complaint to the Respondent, using its P19 system, following her a sexual assault by a prisoner. It is submitted on her behalf that she suffered considerable detriment to her mental health and to her career ambitions as a consequence of having filed her P19 complaint. In its defence of the claim, the Respondent submits that the Complainant’s shifts as an agency worker assigned to it were temporarily suspended due to her failure to complete the certification that was required under her contract but that she was welcome to resume working for the Respondent once that issue had been resolved. The Respondent emphatically denies that the Complainant’s filing of the P19 had any bearing on the decision taken on 17 January 2019 to suspend her shifts. Having regard to the test elaborated in theToni and GuyDetermination, the Court must consider the following question: was the Complainant’s filing of the P19 complaint the causative factor in the decision taken by the Respondent to discontinue her shifts? Having carefully considered the Complainant’s evidence and that of the witnesses called by the Respondent, as well as the transcript of the meeting surreptitiously recorded by the Complainant on 19 February 2019, the Court is satisfied that the Complainant’s employment as an agency worker with the Respondent was not irrevocably terminated as claimed – it was merely temporarily suspended. The Court further finds that the evidence demonstrates that the Complainant knew or ought to have been fully aware of the fact that she was welcome to resume her shifts with the Respondent once she had completed her certification. It is not disputed by the Complainant that she was fully aware from the commencement of her engagement by CPL, following her transfer from Nurses on call in early June 2018, that she had a contractual obligation to fulfil certain certification requirements. She was also aware that she had been given a degree of leeway in that her deployment to the Respondent by CPL was continued notwithstanding her lack of certification because she had an established track record with the Respondent and was highly regard professionally by the Respondent. Courses were booked in June by CPL for her to complete that certification but she did not attend and did not give any prior notification to CPL that she would not be attending. There is no evidence that she made any attempt herself between June 2018 and January 2019 to arrange to attend the necessary courses in fulfilment of her contractual obligations. Mr Kelly learned that the Complainant was non-compliant with her contractual certification requirements only when he made contact with Mr Coughlan to enquire about the outcome of the Cloverhill issue involving the Complainant. At that point in time, some seven months had elapsed since CPL had acquired the contract to supply agency nursing staff to the Respondent and the Complainant had transferred to its employment and Mr Kelly, conscious of the potential liability the Complainant’s lack of certification posed to the Respondent, made a decision to suspend her shifts until such time as the Complainant remedied matters. The Court has no reason to question the evidence given by Chief Officer Hickey that the incident of sexual harassment reported by the Complainant was processed by the Respondent in accordance with the established procedures that are normally applied to P19 complaints against prisoners. The Complainant’s concerns arising from the fact that she was not interviewed by the Governor before a decision was made in relation to the prisoner concerned and her further concern that she did not receive feedback following the completion of the process appear to the Court not to be well-founded, although understandable. Chief Officer Hickey was very honest in his evidence in so far as he acknowledged that it is not usual practice in the prison service to follow up with a staff member who has initiated a P19 complaint. However, he did say that his office door was open and the Complainant could have approached him to enquire about matters if she wished but she didn’t avail herself of the opportunity to do so. The Court is satisfied that the sexual harassment incident experienced by the Complainant and her P19 reporting of it had been brought to Mr Kelly’s attention – as demonstrated by the email correspondence of 3 and 4 December 2018 referred to earlier in the Determination. However, the Court finds that the evidence advanced on behalf of the Respondent supports its conclusion that the operative reason for the decision taken by Mr Kelly on 17 January 2018 was the Complainant’s failure to fulfil her contractual and professional obligations with regard to her certification. This is perfectly consistent with the highly regulated nature of the nursing profession, a fact referred to several times by the Complainant in the course of her own evidence to the Court. It follows, therefore, that there is no basis for the complaint advanced in this case to the effect that the Complainant was penalised within the meaning of section 27(3)(c) of the Act for having made a complaint to her employer in relation to her safety, health or welfare at work. The appeal succeeds and the decision of the Adjudication Officer is set aside. The Court so determines.
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