Complainant

Respondent

Parties

Anthony  Heaphy

Health Service Executive

Representatives

 Self-Represented

Conor White -  Comyn Kelleher Tobin

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00040489-001

18/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00040489-002 DUPLICATE

18/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00040489-004 WITHDRAWN

18/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under Part 55M(1) of the Health Act, 2004

CA-00040489-005

18/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Criminal Justice Act 2011

CA-00040489-006 WITHDRAWN

18/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 6(1) of the Prevention of Corruption (Amendment) Act 2010

CA-00040489-007 WITHDRAWN

18/10/2020

The Complainant commenced employment with the Respondent on 26 November 2017 and was appointed as a staff nurse in March 2018.  There was a conflict about the date of termination of the employment. After further enquiry by the Respondent at commencement of proceedings, both parties accepted that the Complainant’s date of resignation from employment was 28 September 2019.

The Complainant submits that he was constructively dismissed on the basis that his situation became so intolerable as a result of a toxic environment, amid gross understaffing, that he could no longer fulfil his duties a nurse. 

The Complainant further submits that he submitted a protected disclosure under the Health Act 2004, and he was subsequently penalised for doing so.

The Respondent denies both claims. The Respondent asserts that his original complaints are vague and with little reference to facts or law to the extent that it is difficult to make out a case for defence in advance.

Furthermore, the Respondent asserts that the complaints were not submitted within the statutory time frame and should therefore be deemed to have failed for being out of time.

Respondent’s Preliminary Issue – Complaints Out of Time:

The Respondent asserts that the documentation from the Complainant shows that he sent his complaints to the Workplace Relations Commission (WRC) on 17 September 2020, though the Respondent notes that they were only recorded as received in decipherable form by the WRC on 20 October 2020. Taking the referral date as 17 September 2020, and the accepted resignation date of 28 September 2019, the Respondent submits that the adjudicator must take cognisance of the provisions of the time limits in both the Unfair Dismissals Act 1977, as amended, (hereinafter the 1977 Act) and the Workplace Relations Act 2015 (hereinafter the 2015 Act).

CA-00040489-001: Unfair Dismissal

The Respondent cites Section 8(2) of the 1997 Act: where it provides:-

2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015 to the Director General—

(a) within the period of 6 months beginning on the date of the relevant dismissal, or

(b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause,

The Respondent opened the Labour Court decision of Cementation Skanska v Carroll DWTO425 which defined ‘reasonable cause’ as understood by the Court.

The Respondent submits that the Complainant has not identified any reasonable cause for the delay. The Respondent points out that the Complainant signaled that he had engaged the services of Cantillon's Solicitors to assist him in the progression of his complaints. The Respondent further submits that the Complainant had the benefit of the assistance of representative organisations throughout the period under review.

The Respondent argues that in the initial 6-month period, the Complainant had contact with the WRC offices and was made aware of what he describes as the' preliminary' six month period in which he must lodge this claim and others. The Respondent asserts that the Complainant was aware at all stages of the necessity to file a complaint within a period of 6 months as and from 28 September 2019 and did not do so.

The Respondent submits that such as the Complainant alleges that he was in some way disabled from making this referral, and the myriad of other claims and complaints that he has submitted, is that he had no difficulty progressing those matters in this period and there was no medical restriction on him advancing the matters during that period or engaging with the WRC.

The Respondent concludes that on any objective basis it would be irrational, considering those circumstances, to enable the Complainant to extend the period beyond the 6 months identified in the legislation. The Respondent submits the Complainant promotes no reasonable cause to enable the Adjudicator to assume a jurisdiction beyond 6 months to hear the claim.

Complainant’s Response to Preliminary Issue – Complaints Out of Time:

The Complainant submitted written evidence as well as verbal evidence on affirmation, on his reasons for not submitting his complaints within the statutory time period. He is seeking an extension to the original statutory time frame of six months to 12 months on his complaints, on the basis of reasonable cause. The following is a summary of his position:

He resigned from his job in September 2019 and his  mother passed away in November of that year. This affected him profoundly.  He was also severely affected by the treatment and exposure to a toxic work environment, which had an immense effect on his mental health. So much so, that he suffered from anxiety, panic attacks and stress as a result of this. He received treatment from his GP for his illness. He attended for initial consultation in July 2019 for stress induced from work, then he was referred to counselling in January of 2020 and had to start medication for anxiety and stress.

 He asserts that there is no guide in relation to this process and he had to do this on his own. He spoke to many people in different areas and backgrounds and recounted his story in full many times. He liaised with investigators from the Ombudsman’s Office since July 2019. He also spoke in great length and detail with members of the Seanad and the Dail about his disclosures. He was not aware of the details and legal or procedural aspects relating to time frames and submissions.

He spoke to staff at the WRC on a number of occasions and wanted to check that he could still submit this complaint within 12 months. The staff were extremely helpful and emailed him versions of the complaints form. He was told that it shall be up to an adjudicator in the end, and that they could not say. He was informed in certain circumstances, and with reasonable cause that a 12-month timeframe, is a maximum.  He believes this is a requirement he has met and would hope that the foregoing is taken into careful consideration.     

CA-00040489-001 – Constructive Dismissal:

The Complainant stated that he could no longer fulfil his duties as a nurse due to the toxic environment at the Cork University Hospital caused by chronic overcrowding of patients and gross understaffing levels. In his time there he never had a review and was not allocated a mentor.

 He made a complaint of critical failures in medical procedures to a line manager in March 2019 about an incident  whereby he felt he was subsequently  excluded and victimised. He submits that his resignation should be considered as a response to a protected disclosure.

The Complainant submitted no documentation on his efforts to mitigate his loss but contends that he has lost approximately €10,000 in pay since his resignation/dismissal.

The Complainant acknowledged in cross examination that he had never utilised the grievance procedures nor the bullying and harassment procedures. He also acknowledged that he went to work in a GP practice for 2 days a week and that he started work in this position before his official termination date of 28 September 2019.  

CA-00040489-005 Penalisation Under the Health Act 2004:

The Complainant stated that he made a disclosure under the Health Act 2004 to a Ms Siobhan Scannell on 7 March 2007 regarding a failure in critical care procedures. He believes he was penalised in that he was not acknowledged at staff meetings nor were his inputs into online and other discussions considered. He lists the last act of penalisation of this nature pertained to a lack of interaction with him on  12 June 2019.   

CA-00040489-001 – Constructive Dismissal:

Ms. Audrey Moran gave evidence on behalf of the Respondent. She described herself as Assistant Director of Nursing HR.  She recounted a meeting she had with the Complainant on 10 September 2019 when he told her he was resigning from the job. He indicated to her that he was assigned to the Emergency Department in the hospital but required additional flexibility. A diary note from the witness was exhibited stating “Anthony Heaphy – requires flexibility. Going 2 days to GP practice – P45 required.”  

The Respondent submits that the evidence shows that his stated reason for his resignation to Ms Moran were for reasons of a lack of flexibility from allocated shift working , and not for the reasons as outlined by the Complainant. The Respondent further submits that the Complainant admitted that he did not utilise the grievance procedure at any stage in respect of the issues he claimed to have encountered.

CA-00040489-005 Penalisation Under the Health Act 2004:

The Respondent submits that the Complainant was not penalised by the Respondent in the manner described.

The Respondent submits that from a legal perspective it is important to highlight that the Complainant has already claimed that he has been unfairly dismissed by virtue of the making of a Protected Disclosure under the 1977 Act, as amended. The Respondent contends that in this regard the provisions of Section 55M of the 2004 act are of significance insofar as it identifies as follows: -

"If the contravention of subsection (1) was a dismissal of the employee within the meaning of the Unfair Dismissals Act 1977 to 2005 relief may not be granted to the employee both under this Section and those Acts".  

CA-00040489-001 – Constructive Dismissal:

The relevant provision dealing with time limits under the Unfair Dismissals Act 1977, as amended, can be found at section 8(2) which states:

2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015]) to the Director General—

(a) within the period of 6 months beginning on the date of the relevant dismissal, or

(b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause,…

CA-00040489-005 Penalisation Under the Health Act 2004:

The Complainant submitted that he was subjected to penalisation as a result of a protected disclosure made under the  Health Act 2004 Act, section 55M(1) of that Act states:

(1) An employer shall not penalise an employee for making a protected disclosure.

(1A) Subsection (1) does not apply where the protected disclosure is a protected disclosure within the meaning of the Protected Disclosures Act 2014.

(2) A contravention of subsection (1) is a ground of complaint by an employee to an adjudication officer under section 41 of the Workplace Relations Act 2015.

(3) In proceedings under Part 4 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of subsection (1), it shall be presumed, unless the contrary is proved, that the disclosure was a protected disclosure.

(4) If the contravention of subsection (1) was a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2005, relief may not be granted to the employee both under Part 4 of the Workplace Relations Act 2015 and under those Acts.

The 2004 Act is listed in Schedule 5, Part 1 item 14 of the Workplace Relations 2015 Act (2015 Act). Section 41(6) and (8) of the 2015 Act deals with time limits on the relevant complaint in this instant case where they  state:-

(6) 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….

…(8) 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.

The Complainant applied for an extension of 6 months under 8(2) of the 1977 Act, as well as a sections (6) and (8) of the 2015 Act, which mirror the 1977 Act.

The applicable test in relation to establishing if reasonable cause has been shown for the purposes of granting an extension of time is that formulated by the Labour Court in the case of Cementation Skanska v Carroll, (DWT 38/2003) as follows; 

“It is the Court's view that in considering if reasonable cause exists, 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 the 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.”

On the issue of a complainant pleading that he did not know what the time limits were, I refer to the Labour Court Determination in Globe Technical Services Limited v Kristin Miller UD1824. In that case the complainant argued her lack of knowledge on time limits for submitting a claim was based on the fact she was not a resident in this jurisdiction and was therefore unfamiliar with the processes.  The Court stated:

“It is settled law that ignorance of one’s legal rights, as opposed to the underlying facts giving rise to a complaint, cannot provide a justifiable excuse for failure to bring a claim in time.”

The Complainant gave reasons, both in evidence and written submission, that he had suffered stress and anxiety from his experiences in the hospital that left him debilitated and under medical supervision, and that this was exacerbated by the death of his mother in November 2019. He also stated that he found it tough doing it on his own although he did accept that he was getting advice from both his trade union and the WRC on time limits. He also gave evidence that he consulted at least two members of the Oireachtas, the Ombudsman’s Office and HIQA with regard to other complaints at the same time.   The Respondent made an uncontested argument that the Complainant was receiving legal advice from a local legal firm at the material time.

The Complainant argued that he was doing this on his own and suggested that he may not have been aware of time limits. However, outside of the fact that the Labour Court in Globe Technical Services Limited basically re-stated the basic legal principle that ignorance of the law is no defence, I am satisfied that through his interactions with the WRC and his trade union, he was made aware of the importance of time limits when taking a claim.

I have the greatest sympathy for the Complainant on the death of his mother and I have no doubt that he was receiving counselling for stress and anxiety at this period, however, I am not convinced that he was debilitated to such a degree that he lacked the lucidity to submit his complaints within the statutory time period. No medical evidence was submitted to this effect.  Furthermore, he acknowledged in evidence that he was pursuing complaints effectively against the Respondent through other fora, at the material time. I note also that the termination date of his employment was 28 September 2019 whereas the submission date for his complaint of Unfair Dismissal was 17 September 2020, two weeks short of the possible 6-month extension period.

On the complaint of Unfair Dismissal, I am satisfied that the Complainant’s reasons for extension of the time limit were not convincing or rational, as per the test in  Cementation Skanska,  nor did he discharge the burden that the reasons given in his evidence were directly linked to circumstances that pertained at the time of his eventual late, two weeks in advance of the possible 12-month period. Therefore, I find that the Complainant was not unfairly dismissed by the Respondent due to his complaint being out of time under the provisions of the 1977 Act.  

Regarding the complaint of penalisation under the 2004 Act, the Complainant accepted under examination that the last date of purported penalisation was 12 June 2019. However, his complaint was submitted on 17 September 2020., which was considerably over the 12-month period since the last contravention on 12 June 2019, a period that I am not allowed to consider under section (8) of the 2015 Act. Notwithstanding my lack of jurisdiction to consider the application for extension, and for the sake of completion, I must address the issue that even if it had been alleged that a contravention occurred in September 2019, and theoretically be inside the 6-month extension period, the Complainant would have failed in not having established a reasonable cause for an extension. Therefore, I find that the complaint of penalisation under the 2004 act was not well-founded due to being out of time.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

CA-00040489-001 – Constructive Dismissal:

For the reasons outlined above, I find that the Complainant was not unfairly dismissed due to his complaint being out of time within the provisions of the Act.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00040489-005- Penalisation Under the Health Act 2004:

For the reasons outlined above, I find that the complaint was not well founded due to it to being out of time.

Unfair Dismissals Act, Constructive Dismissal, Health Act 2004, Time Limits, Penalisation.