Worker

Employer

Anonymised Parties

A worker

A health, social care & education service provider

Representatives

Niall O Sullivan Psychiatric Nurses Association (PNA)

 Non-attendance

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00000753

12/10/2022

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The employer did not attend the hearing of the matter.  I am satisfied that the appropriate notice was sent out to the employer and consequently the hearing proceeded as scheduled.

The worker was subjected to an assault by one of the patients in her employer’s facility on 29 March 2021. She was assaulted during the hour that she was rostered to work on her own full she was normally rostered to work on her own during that. However, the employer was aware that this patient was a difficult patient as additional staff were assigned to that patient from 9:00 o'clock onwards. As a result of the assault the worker was out on sick leave for 12 weeks.

Arising from the assault she incurred GP expenses of €90 and counselling expenses of €720. The employer indicated that it was willing to pay for two weeks expenses in an e-mail that they sent to the worker but ultimately paid nothing to her.

The worker raised a grievance regarding the assault and although there was a meeting regarding stage one of the grievance procedure in July of 2022, the employer never came back with a decision and never responded to further correspondence.

The worker seeking loss of earnings for the 12 weeks amounting to €6523 and her medical expenses totalling €810.

The employer did not attend the hearing.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

The worker outlined how she was engaged to work directly with her employ on an “on-call contract” basis, this appears to be a Zero Hours contract.

The employer did not engage with the WRC process and despite numerous calls on the morning of the hearing were unavailable.  However, I am satisfied that the employer was on notice of the hearing and or the proceedings.

The worker came across as a very capable person who is well able to express herself and was a very credible witness although understandably somewhat emotional when describing the assault and the events surrounding her difficulties in engaging with the employer.

She outlined that for a long time she still wanted to work with the organization and that she had no interest in taking a personal injuries claim, she just wanted the wages she was owed and she didn't want to take it any further. The worker noted that she wants her employer to listen to staff and to change the way they deal with people.

The worker outlined how she has not been employed since the assault as she was trying to resolve matters with her employer, hoping to return to work with them but has in the intervening 2 years returned to pursue studies.

Having regard to the wishes of the worker I am satisfied that a recommendation regarding the claimant's loss of earnings is appropriate.  Similarly, I am satisfied that a recommendation regarding payment of the medical expenses incurred is also appropriate.

Having regard to the lack of meaningful engagement on the part of the employer with the worker which has resulted in her being out of work for more than two years and in circumstances where the employer was aware of a risk to its staff (whereby they had assigned additional personnel to deal with this troubled patient, but only from 9am onwards), I am satisfied that a recommendation that the employer pay the worker a year's salary is also appropriate.

Furthermore, I recommend that this recommendation issue to the group head office who should seek to engage with the worker.  

I am also satisfied that a recommendation governing the operation of the HR department is appropriate. I note that the employer on its website has listed various policy and procedures for the benefit of its patients and recommend that the employer draft a policy governing its engagement with it's staff and in particular outline in writing its undertakings regarding engagement with the grievance procedure.  I recommend that this issue to all staff and the worker in writing.

IR complaint – grievance procedure – lack of meaningful engagement – aware of risk - compensation