ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference:  ADJ-00040755

Parties:

Complaint:

Date of Adjudication Hearing:  04/04/2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 13 of the Industrial Relations Acts 1969 following the referral of the complaint/dispute to me by the Director General, I inquired into the complaint/dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint/dispute.

Background:

The Worker was employed as a Social Worker.  She experienced severe trauma as a consequence of attending training on child sexual violence.  As a result she had to retire early from her career.  The worker seeks redress for the way in which the issue was handled by the Employer.

Summary of Worker’s Case:

The Worker was initially employed as a Social Care Worker.  She upskilled and went back to third level education and trained as a Social Worker.  She began working in Child Protection in 2010.              She was working without issue until 2018 when mandatory training was organised by the Employer on understanding sex offenders.  As a result of the distressing material on the training, the Worker subsequently ended up out of the workplace on sick leave.  The Worker was affected deeply by the distressing material and did raise the issue on numerous occasions with her line manager.  The Worker went on sick leave, returned to work and then went back on sick leave.  She self-referred to Occupational Health, her own GP and the Employee Assistance Programme to seek support.                       It is argued that the Worker was not supported by the Employer and that the Employer policies in relation to timeframes were not adhered to when she invoked the grievance policy.  Throughout the process, no alternative options were put forward by management which resulted in the Worker having no alternative but to retire on the grounds of ill-health, despite having at least twenty working years left before reaching her contractual retirement age.

The training took place in September 2018.  Around November 2018, the Worker directly contacted EAP for support.  She had a panic attack which stemmed directly from the training she had attended.  She went on sick leave.  At this stage she had received no support from the Employer. On her return from sick leave, management did not follow the required obligations under the Management of Attendance Policy.  No back to work meeting took place.  After attending Occupational Health, a number of accommodations were made by the Employer to support her.  These included reduced exposure to CSA (Child Sexual Abuse) with all but one removed from her.  However, she was informed that she must continue to be available for on-call with duty calls.  She had to avail of psychotherapy which she paid for herself.

In the middle of March 2019 the Worker went out on sick leave again due to the pervasive impact the training had on her health and well-being.  She never returned to the workplace and ended up exhausting her full sick leave allocation, eventually being placed on TRR and ultimately having to retire on grounds of ill-health.  She continued to engage with Occupational Health and EAP with a view to recuperating and returning to work.  In January 2021 she was advised by local management that it was not possible for them to identify any other post.  At this point the Worker was not in receipt of pay and the Employer was to decide at a later stage to deal with the issue of TRR.  In February the Worker followed up and was told that TRR was approved from August 2020 to April 2021.  The Union wrote to management to proactively engage about the prospect of a return to work and sought information on some posts.  In February a meeting was held at which the Union identified a number of roles and sought information.  While a response was pending, the Employer wrote to the Worker advising her that as a result of her reaching the 548 day limit, payment of TRR would only be issued from 19th August 2020 to 25th December 2020 and payment for the reduced period would issue by 15th April. 

The Union heard nothing from the Employer despite following up in March.  In August 2021 they were informed that no immediate roles were available.  No options of posts were ever explored and as payment for TRR had been denied, it was requested if early retirement could be explored.  A standard calculation was applied to calculate how many additional years would be provided despite the special circumstances.       The Worker submitted a grievance which was heard through the stages.  She submitted her grievance seeking to address a number of issues, including:

That she was put forward for the training without any consideration of the impact it would have on her well-being, no formal debriefing being offered after the training in a timely manner, lack of follow through from the Employer on occupational health recommendations in addition to the lack of information on the right to apply for TRR and the delays in processing applications.  There was a delay in progressing her grievance in contradiction of the policy.  Difficulties were encountered in the first stage, and the grievance was then partially upheld at stage 3.  Within the outcome, the Worker was to receive an apology from two management personnel.  No apology was ever issued to her.  It is submitted that the Worker had to retire early as a result of the impact of the training on her, that the Employer failed in their duty of care and ensuring her safety and welfare in the workplace. It is requested that she be compensated for the loss of pay while on sick leave, payment of related medical costs she had to cover due to the training and in order to try and facilitate her return to work, and consideration of an increase in additional pensionable years and recognition of the impact and delays in the process.     

Summary of Employer’s Case:

In September 2018, the Worker was offered the opportunity to attend the training course which dealt with forensic interviewing of sexual offenders.  Prior to the training all participants were provided with information outlining the content and the impact it may have.  Following receipt of this information, the Worker confirmed her attendance at the course.  Notes provided to course participants advises them that the content would be uncomfortable and self-care was advised.  Attendees were advised that they could walk out at any time.   Following the first day of the course, the Worker found the content had an adverse impact on her and she declined to attend the second phase.  There was a debriefing for participants after the training, but the Worker did not attend as she was not attending the second phase.  She did attend counselling via the Employee Assistance Programme.  The Worker went on sick leave in October 2018 until December 2018. During this period she was referred to Occupational Health and the report stated that it would be helpful if a contact number was made available to participants of such training and that with the support of her line manager the Worker ‘would be fine’ if further counselling sessions were provided.  The recommendation also stated that altering the workload and redeployment was discussed but that was not an option.    

On return to work, the Worker’s caseload was modified.  In addition she was assigned to take Duty phone calls and advised that she would not be required to take calls she was not comfortable with.  However, she was advised that it would be difficult to shield her from all CSA content.

She recommenced sick leave in April 2019.  Occupational Health reports were obtained and one stated that she should be referred to a Consultant Psychiatrist.  Unfortunately, outside of a serious physical assault scheme, the Employer has no facility to pay for such a referral.  In August 2020, a further Occupational Health report stated that on return to work any exposure to CSA would have further negative impact on her and consideration should be given to exploring alternative roles, although it was acknowledged that this might be difficult to facilitate.  Meetings were held in December 2020 and February 2021 at which it was outlined to the Worker and her Trade Union Representative that the Employer would not be in a position to give a commitment that the Worker would not be exposed to any discussion in relation to CSA within the departments in the employment.  Job specifications for other departments were requested by the Union.  In August 2021, the Employer wrote to the Union Representative to state that having explored all options, no post could provide the Worker with the required assurances.  Options for retirement on grounds of ill health were commenced in September 2021.  In October 2021, the grievance procedure was invoked.  Following a difficulty encountered by the Worker and her Trade Union Representative at Stage 1, the matter was escalated to Stage 2, following which some of her complaints were upheld.   Some correspondence was exchanged between the parties, culminating in the matter being progressed to Stage 3 in July 2022.  At this stage, 8 complaints were under consideration.  A decision letter was issued on 3 August 2022.  Complaints 1 & 2 were partially upheld, complaint 3 was not upheld, no decision was provided to complaint 4, complaints 5 & 6 were upheld, complaint 7 was partially upheld and complaint 8 was upheld.

It is the Employer’s position that the Worker agreed to attend a training course in September 2018. Full detail of the course content was provided to participants and the potential impact.  In addition participants were advised of their option to withdraw from the course at any time they feel uncomfortable or overwhelmed. 

It is acknowledged that there were some significant delays in the provision of information to the Worker however, it was necessary to explore all avenues and it was not possible to provide the Worker with a post where she would not be exposed to any discussion in relation to CSA.

It was at the request of the Worker and her Trade Union Rep that the option of retirement on ill health was progressed.

It is acknowledged that there were significant delays in the information provided and the processing of the application of TRR following the exhaustion of her entitlement to sick pay.  There were some changes in personnel which attributed to the delays.

Training for Managers with regard to managing attendance policy and sick pay scheme has been rolled out to ensure that all line managers are aware of the policies and to avoid future delays.

There was considerable engagement with the Worker and her Trade Union Rep to conclude and resolve matters.

Findings and Conclusions:

The Worker showed clear signs of deep distress following her attendance at the training course.   She gave clear and cogent testimony at the hearing of the significant impact it had on her career and family life.  From the time of the course to her retirement on ill health, she and her Trade Union Representative made many attempts to resolve the issue.  The grievance procedure was invoked and I note that some of her grievances were upheld. I note that the findings in some were that apologies should be made to her for some shortcomings.  I found no evidence of any such apologies.  The delays in providing her with information and Occupational Health reports, and the delays in processing the TRR payments and the lack of facility to cover a Consultant Psychiatrist referral all contributed significantly to a shortcoming in how the Worker was treated.  I welcome the Employer’s point about rolling out training for Line Managers with regard to Managing Attendance Policy and Sick Pay Scheme in order to avoid delays in the future.  I note the Employer’s point that it is not up to them to approve any additional years to the retirement on ill health pension, but perhaps they could make some recommendation in the matter.

In order to bring closure, I recommend that the Employer offers the Worker a compensatory sum of €10,000 to compensate for the significant delays along the line which includes a contribution to her medical expenses.  I further recommend that they seek two added years to her service for retirement on the grounds of ill health if that is possible.

Recommendation:

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.

In order to bring closure, I recommend that the Employer offers the Worker a compensatory sum of €10,000 to compensate for the significant delays along the line which includes a contribution to her medical expenses.  I further recommend that they seek two added years to her service for retirement on the grounds of ill health if that is possible.

Dated:   12/07/2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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