Complainant

Respondent

Parties

An Individual

A Healthcare Provider

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00051585-001

07/07/2022

At the request of the Complainant I agreed to anonymise my decision in this matter.  I took this decision as I was satisfied that private medical information might be discussed in the course of the hearing. During the hearing it became clear that previous Labour Court and WRC determinations concerning the parties which had been cited by the Respondent and would necessarily feature in my decision. The WRC decisions were issued pre-Zalewski and as such do not identify the parties, but the Labour Court decisions were not anonymised. As such I have sought to refer to these decisions by way of the dates at which they were arrived rather than by the associated reference numbers. I note that this does result in some risk that the parties can be identified however I am of the view that I have no alternative.

The Complainant worked for the Respondent from in March of 2003 until 20th May 2019 when she was placed on ill health retirement.

The Complainant subsequently brought a number of complaints to the WRC under a variety of acts, namely the Industrial Relations Acts, the Employment Equality Acts, the Payment of Wages Acts and the Minimum Notice and Terms of Employment Act.  These complaints alleged that a number of workplace grievances had not been addressed by the Respondent as well as  allegations that she had not received adequate notice upon the termination of her employment, further complaints regarding her payment during a period of illness absence, complaints regarding disciplinary processes, complaints regarding the secondment of another staff member within the organisation, complaints regarding the training received by another staff member compared with her own, complaints regarding the advertising of new roles within the organisation, health and safety issues regarding her working area and complaints regarding the manner in which internal meetings were held.

The Workplace Relations Commission issued decisions in the above matters on the 30th of September 2019 and the 18th of November 2020. The Adjudication Officer did not uphold any of the statutory complaints and opted to make no recommendations regarding the industrial relations cases.

The Complainant then appealed two Employment Equality Act complaints to the Labour Court and brought a Section 20(1) complaint under the Industrial Relations Act.

One of the Employment Equality Act complaints was appealed outside of the 42 day appeal window and the Court determined it was not a valid appeal. This decision issued on 13th of December 2021.

The other set of Employment Equality Act complaints the Court found in favour of the Complainant on one issue. While the Respondent had obtained medical advice which supported retiring the Complainant on ill health grounds they had failed to show that they had considered whether reasonable accommodations could retain her in her role. As such the Respondent was found to have discriminated against the Complainant on the disability ground and was directed to pay the Complainant a sum of €10,000 in compensation. This decision issued on 4th of July 2022.

The Labour Court also issued a recommendation concerning the Complainants Industrial Relations Act complaint by way of Section 20(1). The Court determined that as a result of Section 26A it could not consider the matter as it had been referred to the Court more than a year after the Complainant’s retirement.

The Complainant began referring the complaints shortly after the second set of Employment Equality complaints were heard by the WRC in October 2020. These complainants were listed under ADJ-00030360.

In 2021 and 2022 the Complainant submitted further Employment Equality complaints, some of which were joined with ADJ-00030360 and others which were placed under ADJ-00032093, ADJ-0032418, ADJ-00040029, ADJ-00037341, ADJ-00037340, ADJ-00037339 and ADJ-00035260. 

The Complainant also submitted complaints under the Safety Heath and Welfare at Work Act in 2021 and these were listed under ADJ-00036391. The Complainant submitted a further Safety Health and Welfare at Work complaint in 2022, which is this matter, listed under ADJ-00040031.

A hearing was held to consider all of these matters together on the 19th of January 2023. On review of the correspondence I am satisfied that the parties were notified of all the matters to be considered by reference to each ADJ number in an appendix to the notification letter which listed this case.

The Complainant attended the hearing unrepresented. The Respondent attended represented by Ms Aisling McDevitt of IBEC. In advance of the hearing the Respondent indicated that they wished to raise a number of preliminary issues.

These preliminary issues were that the WRC did not have jurisdiction to hear these complaints for a variety of reason and are outlined in more detail below.

As a result of the preliminary which were raised I gave the Complainant the opportunity to issue further submissions on the preliminary issues by the 3rd of February 2023 date.

I have received the following from the Complainant:

·         A email submission regarding ADJ-00030360 dated 27.01.2023

·         An email submission regarding ADJ-00030360 CA-00050723 (EQUALITY COMPLAINT GENDER AND DISABILITY GROUNDS) dated 27.01.23.

·         An Email submission concerning ADJ-00035260 CA-00046349 &  CA-00052851 (Document 1) dated 27.01.23

·         An Email submission concerning ADJ-00035260  CA-00054386 (Document 2) dated 27.01.23

·         An Email submission concerning ADJ-00032093  CA-00042135 dated the 30.01.23

·         An Email submission titled Burden of Proof Document Re:  Gender Pay since May 2019 dated 22nd December 2022

·         An Email Submission concerning CA-00050974 ADJ-00030360 dated  30.01.2023

·         An Email Submission concerning ADJ–00036391, CA-00047539 and CA-00047671 dated 31.01.23

·         An Email Submission concerning ADJ-00037340 CA-00048625-001 dated 25.01.23

·         An Email Submission concerning ADJ -00030360 CA-00050527 CA-00051127  CA-00053092 marked document 1 of 5 and dated 02.02.23

·         An Email Submission concerning ADJ-00030360 CA-00050527 CA-00051127 CA-00053092 marked document 5 of 5 and dated 02.02.23

·         An Email Submission concerning ADJ-00037399 CA-00048619 dated 03.02.23

·         An Email Submission concerning ADJ- 00030360 CA-00050527 CA-00051127 CA-00053092 marked document 2 of 5 and sent on the 09.02.23

·         An Email Submission concerning CA-00051498 dated 09.02.23

·         Hard copies of a number of these submissions were received by the WRC on 13.02.23 including a booklet marked ADJ-00035260/ CA00046349 Equality Gender and (facet Imputed Disability) dated 12th of October 2021.

·         An Email Letter to the Adjudicator concerning ADJ-00030360 and Associated Claims dated 03.03.23

When I adjourned the hearing I was clear that I would consider the preliminary issues further and if I do not have jurisdiction to consider any complaint further I would issue a decision to that effect. I also outlined that if determined that I did have jurisdiction to consider any complaint further I would list the matter again for a resumed hearing and consider the substantive issues.

CA-00051585-001

This complaint was submitted on the 7th of July 2022 and relates to the failure of the Respondent to deal with a complaint submitted to it in January of that year. The complaint concerned a risk assessment conducted by the Respondent in 2017.

The act of penalisation was that the Respondent has argued that the Complainant had no jurisdiction to bring a complaint as she was no longer an employee but retired on ill health grounds and that it submitted medical evidence concerning the Complainant.

Following the Respondent having raised a number of preliminary issues I invited the Complainant to respond to these in the hearing.

On the issue of time limits the Complainant argues that she is still an employee of the Respondent. In 2019 she was suspended from work on pay. A disciplinary process was initiated but never concluded. The Respondent subsequently purported to place her on ill heath retirement. However this process is governed by national procedures and the decision to place a person on ill health retirement lies with the CMO and no one else. The Respondent failed to properly place the Complainant on ill health retirement and as such her employment has not been terminated. She remains on a form of paid suspension.

The Complainant argues that any termination would have been in contravention of the European charter of fundamental rights. As a result of the actions of the Respondent she has been moved from class A to class M for PRSI purposes and this has significantly effected her access to benefits including illness benefit.

The Labour Court ruled that reasonable accommodation was not provided to the Complainant when she was put on ill health retirement. As a result of this she believes she cannot lawfully claim or accept the pension being paid by the Respondent. Furthermore the Pensions Act of 2012 states clearly that public service employees need to consent to being placed on ill health retirement. The Complainant has never consented to this.

The Complainant refers to Labour Court determinations in PAT192 and PAT 211 brought under the Pensions Acts 1990 to 2014. She suggests the central finding of both these cases was that if the employee ignores the relevant medical advice, then they cannot claim entitlement to be granted early retirement. The Complainant suggests that the reverse also applies, that the Respondent cannot lawfully place someone on early retirement if they have failed to follow the appropriate medical advice. 

The Complainant argues that a mental disability diagnosis was imputed on her by the Respondent.  The Complainant referred to UN General Assembly resolution 46/119, Principles for the protection of persons with mental illness and the improvement of mental health care. As per this resolution the Respondent were obliged to provide a legal representative to her but this was not afforded to her. 

The Complainant argues her discrimination at the hands of the Respondent has been continuous. In January 2020 she asked them to send her a P45 but they did not do so. The declaration form regarding her pension must be signed every year.  The Complainant does not consent to her pension being paid to her but it continues to be paid.  The Respondent in doing so disregards Section 51 of the Public Service Pension Act. 

The Complainant argues that the Respondent has failed to provide suitable particulars specifying their case and in the circumstances she is entitled to summary judgment against them.

The Complainant is being harassed by the Respondent in their continuous submission of the private medical information to the Labour Court and WRC.

She argues that if the Respondent relying on her retirement being a termination they needed to provide her with the law relating to that. Article 9 of the EU Disability Directive 2000/78/ec provides that the employment equality rights exist post employment.

At the hearing I offered the Complainant until the 3rd of February to provide supplemental submissions on the preliminary issues. In the hearing the Complainant attempted to submit a document on the basis that it couldn’t be shared with the Respondent side. I explained that I could not accept any document I cannot share with both parties. The Complainant asked that I note my refusal to accept this document in this decision.

The Complainant lodged extensive documentation in response to the Respondent’s preliminary issues. Large parts of these submissions stray far from the preliminary issues identified by the Respondent and indeed from the relevant legislation. I have sought to focus on the parts that a relevant to the preliminary issues raised by the Respondent.

With regard to the above complaint the main argument regarding the preliminary issues raised by the Respondent is that the Complainant remains an employee of the Respondent, suspended and that the acts of the discrimination are ongoing and within the relevant time limits.

The Respondent refers to the complaint form. In it the Complainant alleges that she was penalised for having lodged a trade dispute and specifically referred to the evidence presented by the Respondent in defending other claims made by the Complainant.

The Respondent is entitled to rely on whatever evidence they consider pertinent to their own defence in legal proceedings.  

This complaint concerns failures on the part of the Respondent to conduct risk assessments in 2017, 2015 and 2019. These are well outside the statutory time frames.

The alleged penalisation occurred some three years after the Complainant ceased being an employee of the Respondent. Any claim under this act is well outside the cognisable period.

The Date Complainant’s employment with the Respondent Ended

The Complainant has suggested that as a result of either the Labour Court finding in their favour of the decision of 4th July 2022 or the terms of the 2012 pensions act not being complied with by the Respondent, she remains employed by the Respondent and suspended. On review of the Labour Court decision on the 4th of July 2022 and the Labour Court recommendation on 10th June 2022 it is clear that two separate divisions of the Court have clearly determined that the Complainant’s employment ended on the 20th of May 2019 when the Respondent forced her retirement on ill health grounds. While the Labour Court decided that the Respondent’s did not comply with their obligations to consider reasonable accommodation to retain the Complainant in her role they chose to award her €10,000 rather than order reinstatement. I note the issues the Complainant raises regarding her retirement and the Pensions Act. These issues may or may no be well founded however they do not change the fact that her employment was terminated on the 20th of May 2019. In general the Complainant appears to hold the view that the if an employee is unlawfully terminated that the termination did not happen in some legal sense. This is not accurate. The Complainant’s date of dismissal was 20th of May 2019.

Scope of Act

Section 41 of the Workplace Relations Act 2015 gives the Workplace Relations Commission jurisdiction to consider complaints of penalisation under the Health Safety and Welfare at Work Act. Section 41 subsection 6 states that 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. This can be extended to 12 months in exceptional circumstances.

Section 27 of the Health Safety and Welfare at Work Act prohibits penalisation and defines it as 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.

The Complainant had ceased being an employee of the Respondent at the time of the alleged penalisation. Furthermore she had ceased being an employee of theirs more than 12 months before the date this complaint was lodged.

As such, I am satisfied I have no jurisdiction to consider the complaint further.

The complaint is not well founded.