FULL RECOMMENDATION
PARTIES : HEALTH SERVICE EXECUTIVE DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No ADJ-00012147. BACKGROUND TO THE APPEAL: This is an appeal on behalf of the Health Service Executive (‘the Respondent’) from a decision of an Adjudication Officer (ADJ-00012147/CA-00016105-001, dated 7 March 2019) under the Safety, Health and Welfare at Work Act 2005 (‘the Act’). The Respondent’s Notice of Appeal was received by the Court on 17 April 2019. The Court heard the appeal over three days: 15 June 2021 (in Dublin); 24 November 2021 (in Westport) and on 22 February 2022 (in Dublin). The Court heard the evidence of the Complainant and that of the following witnesses called by the Respondent: Ms Caroline Browne, Mr Paul Hume and Dr Pádraig Ó Luanaigh. The Court also heard and determined a related appeal under section 13 of the Industrial Relations Act 1969 in tandem with the within matter. The Court’s Decision in that case bears reference number CD/19/136. THE COMPAINANT: The Complainant set out his complaint as follows in the Workplace Relations Complaint Form received on 1 December 2017: “I have complained about a work colleague who has harassed and bullied me over a prolonged period of time. The colleague in question has made my working conditions intolerable. An investigation was started, but never formally progressed and never concluded. During that period, I was rostered to different locations around Mayo University Hospital away from my previous working area where the said colleague was left in situ without any sanction or change to her working duties. I have been posted to various different tasks away from that area to avoid working with this person. In recent times, HR simply announced that they were now sending me back to my old position where I would have to work alongside the very colleague I had complained about. I cannot cope with the stress of doing so and my managers/employers are fully aware of this. Despite this, they have continued to roster me onto shifts working alongside the very colleague in respect of whom an un-concluded investigation was carried out and in respect of whom very serious allegations were made. It is clear to me that I have been penalised and moved around to suit the needs of the colleague who remains without sanction and without any disciplinary action being taken. It is grossly unfair and had now been compounded by rostering me back with this colleague without resolving the complaint. I cannot cope with the stress of that and have been compelled to go on sick leave on the days when I am rostered with this colleague. I will soon use up my sick pay entitlement. Over the course of the last couple of years, as a direct result of this penalisation, I have directly lost out on my Sunday shifts which would have been normal during my usual posting in the Paediatric Ward. Since my complaint, I was moved off this ward and moved around to different shifts and have lost substantial income as a result.” THE FACTUAL MATRIX: The Complainant has worked as a Multi-task Attendant at Mayo University Hospital since 1997. He was made permanent in his post in 2001. The Complainant’s duties as a Multi-task Attendant include providing assistance with general tasks on the ward and delivering and managing supplies to the ward. He works under the supervision and direction of the Domestic Supervisor. When the events that gave rise to the within proceedings arose, the Complainant was assigned to the Paediatric Ward in Mayo University Hospital. Early in 2015, he experienced a series of inter-personal difficulties with a staff nurse (‘Nurse A’) also assigned to the Paediatric Ward. The Complainant brought this to the attention of his Supervisor and then subsequently formalised a complaint dated 29 July 2015 against Nurse A under the Respondent’s Dignity at Work Policy. The Complainant submitted as part of that formal complaint that he had been the target of bullying behaviour by Nurse A since late 2013. He requested a formal investigation be undertaken into his allegations. When submitting the complaint, he also stated: “I am formally requesting you to preserve my health and welfare under the provisions of the Health and Safety Act, by ensuring I am not rostered at the same time as [Nurse A].” The Complainant submits that in or around the time that he submitted the above formal complaint, he began to be rostered to work at different locations in the hospital campus with the result that his normal pattern of working hours became disrupted and this caused knock-on effects on his family life. He did not have certainty in advance in relation to his rostered hours, he did not have the same level of access to Sunday shifts that attracted a premium payment and he was required to undertake additional tasks that had not been part of his normal duties while working on the Paediatric Ward. Those additional tasks included washing floors, cleaning toilets and monitoring linen supplies. He submits that the changes were made by the Respondent to his working arrangements as a consequence of his having made a formal complaint under the Dignity at Work Policy in July 2015 and the detriment he has suffered as a result constitutes penalisation within the meaning of section 27(2)(c) of the Act. The Complainant further submits that the effect of moving him from the Paediatric Ward while the alleged perpetrator remained in situ without any disruption to her working arrangements created a perception that he was being sanctioned for having done something wrong. This caused him embarrassment and anxiety. The Complainant is of the view that his request not to be rostered alongside Nurse A could have been accommodated without having to move him from the Paediatric Ward. The Respondent accepts that the act of making an allegation of bullying falls within the definition of a protected act for the purposes of section 27(3)(c) of the Act. However, it submits that moving the Complainant to different locations within the hospital was not a consequence of the protected act. Rather, it submits, this was done in compliance with the Complainant’s written request not to be rostered alongside Nurse A and was necessary to protect the legal and constitutional rights of Nurse A pending the completion of its investigation of the allegations raised by the Complainant against her. The Respondent also submits that the decision to relocate the Complainant and not Nurse A was also made for the purpose of good management and the efficient allocation of resources: Nurse A is a specialist and the Complainant is a generalist. THE COMPLAINANT’S EVIDENCE: The Complainant outlined his duties as a Multi-task Attendant on the Paediatric Ward where had worked for some fifteen years. He said he had had no difficulties and had been very happy in his job until 2015 when issues came to a head with Nurse A. Initially, in response to the interpersonal issues that had arisen between him and Nurse A, the Complainant availed himself of a number of options over a period of time to avoid having to work alongside her when he knew that their shifts coincided. For example, he took public holiday leave or annual leave on those dates or swopped shifts with the other Multi-task Attendant assigned to that ward. He said in his direct evidence that Ms Caroline Browne, the Assistant Domestic Supervisor had been fully aware of the steps he had been taking to avoid working with Nurse A. According to the Complainant, the Respondent unilaterally moved him from the Paediatric Ward after he submitted his complaint in July 2015. He said he was moved to many different locations within the hospital including to the Gynaecological Ward, the Laboratory, B Block and C Block. In those alternative locations, he says, he was assigned duties that did not form part of his normal schedule of tasks on the Paediatric Ward. For example, he was required to clean toilets and wash floors. He was also required to manage the stock in the Linen Room and he found this very challenging because he is dyslexic. The Complainant told the Court that he complained to his Supervisor about being moved. She agreed that it was unfair, he said, but she told him that she could do nothing about it as he had been given a direction to relocate him by the Director of Nursing. The Complainant was rostered to work in the Paediatric Ward, from time to time, when Nurse A was rostered off. The Complainant told the Court that he had learned that the informal arrangements described above whereby he had been able to avoid working alongside Nurse A came to an end when he knew in advance that their shifts would coincide came to an end because Nurse A had raised a complaint through her trade union alleging that sharing information about her roster with the domestic side of the house was a breach of her data protection rights. The Complainant was informed in early November 2017 that his normal working arrangements were to be restored from 13 November 2017. He was, therefore, anxious and concerned at the prospect of finding himself on hazard of having, once again, to work alongside Nurse A, his complaints against her being still outstanding and awaiting investigation, as he understood it. He told the Court that on or around 9 November 2017 he was instructed by his Supervisor to go to the Human Resources Department to meet with the newly appointed HR Manager, Ms Shauna Hastings. On his way to Ms Hastings’s office, the Complainant met his trade union representative who advised him not to meet with Ms Hastings. The Complainant told the Court that he decided there and then to contact his Solicitor whom he instructed to write to the Respondent that day outlining his ongoing concerns. The Complainant subsequently received a letter from the Respondent, dated 7 November 2017 but postmarked 10 November 2017, advising him that the Respondent had decided to discontinue the investigation into his allegations against Nurse A as the Complainant, in its view, had failed to prosecute his complaint. The Complainant ultimately went out on sick leave from 2 January 2018 and remained on paid sick leave until his sick leave entitlements were exhausted. He returned to work for only a very short period, he said, as he broke his ankle in or around July 2018. He has remained out of work since then. He has attended for a number of occupational health assessments at the Respondent’s request, most recently on 21 June 2021. The report that issued following that assessment stated, inter alia: “Based on my assessment today, it is my opinion that a return to work may be considered by Mr Jennings once a resolution to his perceived stressors has been achieved. He is medically fit to engage with management to explore his ongoing concerns in an effort to reach an acceptable resolution.” Under cross-examination, the Complainant stated that the informal arrangements he utilised to avoid having work alongside Nurse A commenced in February 2015. He also accepted that, contrary to what he had stated in his direct evidence, that Ms Browne did not know about the arrangements he had made – principally with his fellow Multi-Task Attendant on the ward - to avoid working alongside Nurse A. EVIDENCE OF MS. CAROLINE BROWN: The witness told the Court that she is currently the Domestic Supervisor in Mayo University Hospital in which role she manages fifty-one staff. She was previously the assistant to Ms Nolan until she retired in July 2020. The witness denied any knowledge of the informal arrangements the Complainant had said in his evidence were in place between 2013 and 2015 to ensure that he did not have to work alongside Nurse A. She told the Court that the Complainant was moved to other wards in the hospital from July 2015 onwards as he had expressly requested not to be rostered with Nurse A. Ms Nolan had instructed the witness to make those arrangements. According to the witness, the requirement to roster the Complainant in other wards meant additional work for her. The witness said that rosters for domestic staff are prepared one week in advance and from time to time it is necessary to make changes to the rosters, for example when members of staff are out on sick leave. She denied that the Complainant’s roster was frequently changed when he was transferred from the Paediatric Ward. She accepted that she had rung him on one occasion because the dates he had submitted for annual leave were incorrect. She also said that the decision to roster the Complainant back in the Paediatric Ward was made sometime after Dr Ó Luanaigh was appointed Director of Nursing. EVIDENCE OF MR. PAUL HUME: The witness is currently the Employee Relations Manager for the Saolta Hospital Group. He was previously a Manager in the Donegal, Leitrim and Sligo Region (‘CH01) of the HSE. He is an experienced and trained workplace investigator and has carried out some four hundred workplace investigations. He gave detailed evidence of his appointment to investigate the Complainant’s complaint under the Respondent’s Dignity at Work policy, the terms of reference for that investigation, his one meeting with the Complainant and his trade union reference, his understanding that the Complainant – and subsequently Nurse A – had agreed to enter into mediation and his decision to step down as investigator in or around February 2017. It is not necessary to record the detail of the witness’s evidence in this determination or to seek to reconcile the conflicts between it and the Complainant’s evidence for a number of reasons. Firstly, the events which were the subject of this witness’s evidence are more relevant to the matters before the Court under the Industrial Relations Act 1969 and are considered more fully in the Court’s Decision under that Act. Secondly, the witness was unable to give specific answers to detailed questions put to him in direct examination and in cross-examination as his file in relation to the investigation he was appointed to undertake appears to have gone missing. He was, therefore, relying only on his memory and general understanding of his approach to workplace investigations. EVIDENCE OF DR Ó LUANAIGH: The witness told the Court that he had been appointed as Director of Nursing in Mayo University Hospital in mid-September 2017. Prior to that he had worked elsewhere and, therefore, has no first-hand knowledge of the events in issue that occurred prior to the commencement of his employment in MUH. He told the Court that there had been a long-established practice in the hospital whereby the Director of Nursing and the Domestic Supervisor met on a regular basis. This practice continued after his appointment. At one such meeting sometime in October 2017, according to the witness, Ms Nolan raised her concerns with him about Nurse A’s data privacy claims in respect of her roster details and the difficulty this created for her in facilitating the Complainant. The witness said he made contact with the INMO representative and informed them that no data protection ‘privilege’ attached to workplace rosters and that access to the rosters by a supervisor from another department in the hospital was not an infringement of any employee’s data protection rights. He then met with Nurse A and, according to the witness, Nurse A accepted this to be the case. THE LAW: Section 27 of the Safety, Health and Welfare at Work Act 2005 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— (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 under section 11 or appointed under section 18 to 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. (4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a). (5) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts. (6) For the purposes of subsection (3)(f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time. (7) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (3)(f), the employee shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he or she took (or proposed to take) that a reasonable employer might have dismissed him or her for taking (or proposing to take) them. This Court has given detailed consideration to the meaning of penalisation for the purposes of section 27 of the Act in its seminal determination inO’Neill v Toni & Guy Blackrock Limited[2010] 21 ELR 1 wherein the Court 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.” Later in that Determination, the Court considered the issue of the location of the burden of proof in cases of penalisation contrary to the Act and held: “Having regard to these considerations, it seems to the Court that a form of shifting burden of proof, similar to that in employment equality law should be applied in the instant case. Thus the claimant must establish, on the balance of probabilities, that he made complaints concerning health and safety. It is then necessary for him to show that, having regard to the circumstances of the case, it is apt to infer from subsequent events that his complaints were an operative consideration leading to his dismissal. If those two limbs of the test are satisfied it is for the respondent to satisfy the Court, on credible evidence and to the normal civil standard, that the complaints relied upon did not influence the claimant's dismissal.” DISCUSSION AND DECISION: The Court heard very detailed evidence in this appeal over three sitting days. Nevertheless, the Complainant’s case under the Act can be stated very succinctly. His claim is that the complaint he made to the Respondent in July 2015 under the Respondent’s Dignity at Work Policy is “a complaint … to his … employer … relating to safety, health or welfare at work” within the meaning of section 27(3)(c) of the Act. This is accepted by the Respondent. The Complainant further submits that the Respondent’s decision to relocate him elsewhere within the hospital following receipt of his complaint in July 2015 amounts to penalisation within the meaning of section 27(2)(c) of the Act as ‘but for’ his complaint he would not have been so transferred. He submits that the detriment he suffered as a consequence of this act of penalisation consisted of a disruption to his established working pattern, a reduction in his ability to access Sunday shifts all of which had a negative impact on his domestic arrangements. Furthermore, he says his mental well-being was affected because of his belief that the decision to move him and to allow the alleged perpetrator to remain in situ created the impression that he had been guilty of misconduct towards Nurse A. According to the Complainant, the Respondent’s subsequent failure to investigate the substance of his complaints over a two-year period exacerbated his negative feelings and the deterioration in his psychological well-being. Applying the reasoning of the Court inToni & Guyregarding the location of the burden of proof in penalisation cases, it follows that it is for the Respondent in this case to establish that it was necessary to relocate the Complainant from the Paediatric Ward and the decision was not in retaliation for his having submitted his complaint. The Respondent’s case in this regard is that the decision to relocate the Complainant was taken solely in response to his request not to have to work alongside Nurse A. There was no evidence before the Court that the Respondent considered whether or not the Complainant’s request in this regard could have been met by taking a less drastic course of action. The Court accepts the Complainant’s evidence that, with the co-operation of his fellow Multi-task Attendant on the Paediatric Ward and in the knowledge of Ms Nolan, the Domestic Supervisor, he was able to co-exist with Nurse A through a variety of means, including swopping shifts and availing himself of annual leave days and public holiday leave. Ms Nolan was not called by either side to give evidence and Ms Browne’s evidence did not shed any light either way on these so-called informal arrangements. There is no escaping the conclusion, having considered the totality of the evidence before the Court, that the Complainant would not have been relocated but for making his Dignity at Work complaint in July 2015. The occupational health reports commissioned by the Respondent and opened to the Court confirm that in the period following the Complainant’s relocation his mental health deteriorated significantly and he experienced considerable work-related stress. In the light of the foregoing, the Court finds that the complaint of penalisation contrary to the Act is well-founded. The Respondent’s appeal, therefore, fails. The Court measures the appropriate level of compensation payable to the Complainant having regard to the extent of the detriment he suffered at €20,000.00. The Court so determines.
NOTE |
