ADJUDICATION OFFICER DECISION CORRECTION ORDER ISSUED PURSUANT TO SECTION 39 OF THE ORGANISATION OF WORKING TIME ACT 1997 AND SECTION 41(16) OF THE WORKPLACE RELATIONS ACT 2015
This Order corrects the original Decision issued on 22nd June 2020.
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00023593
Parties:
| Complainant | Respondent |
Anonymised Parties | Agency Nurse | State detention body |
Representatives | Evelyn Page Coughlan White & Partners Solicitors | Peter Leonard BL Jennifer Murray Solicitor Vivienne Matthews O Neill BL |
Complaint(s):
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-00029661-001 | 13/07/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00029661-002 | 13/07/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00029661-003 | 13/07/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012 | CA-00029661-004 | 13/07/2019 |
Date of Adjudication Hearing: 02/12/2019 and 16/01/2020
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
The facts of this case are unique and can easily identify the parties to the complaint. Pursuant to section 41(13) of the Workplace Relations Act 2015 this case was held in private and the parties are entitled to anonymity in this decision.
I have adopted the direction provided in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 at p.113 where O'Flaherty J. in the Supreme Court noted that minute analysis or reasons are not required to be given by administrative tribunals, that the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given:
“I would reiterate, what has been said on a number of occasions, that when reasons are required from administrative tribunals they should be required only to give the broad gist of the basis for their decisions. We do no service to the public in general, or to particular individuals, if we subject every decision of every administrative tribunal to minute analysis.”
Background:
The Complainant was an agency worker and commenced working in the Respondent’s system in November 2016.
The Respondent is the end user / hiring company.
The Complainant moved between locations operated by the Respondent and arranged her shifts with her agency and also directly with the Respondent sending in time sheets in arrears to the agency. She engaged with her line manager in the agency and her line manager with the Respondent.
The Respondent had a requirement that all nursing staff complete a number of courses before working with them.
The Complainant was sexually assaulted in the workplace on the 27th November 2018.
Her complaint was raised by a TD in the Public Accounts Committee (PAC) on the 17th January 2019.
The Complainant’s engagement with the Respondent ceased on the 18th January 2019. |
Summary of Complainant’s Case:
CA/00029661/001
The Complainant gave evidence that on the 27th of November 2018 she was sexually assaulted in her workplace. This happened when she was dispensing medication. The Complainant’s breast was grabbed by a person in the Respondent’s control and supervision. The assault was witnessed by an employee of the Respondent whose role was to supervise the area.
The Complainant completed an incident report for the Respondent, but she was not informed if an investigation into the assault took place or contacted by the Respondent in relation to same. She was not offered any support from the Respondent arising from the assault.
A week after the incident she was rostered to return to the same area where the assault took place to carry out the same duties. The Complainant was very upset about this. She was unaware of the status of her complaint. No safeguards were put in place to protect her safety. She felt very vulnerable and telephoned an employee of the Respondent and expressed her concerns. Her duties were not changed. The Complainant continued to work under duress.
The Complainant was advised by another employee of the Respondent to report the assault to An Garda Síochána. This conversation took place in an area which the Complainant considered inappropriate and she felt exposed to further harm.
The Complainant advised a further employee of the Respondent that she was afraid to follow up on her report as being only an agency nurse she was concerned that she was not be booked for further shifts if she “rocked the boat”. The Complainant was hoping to be permanently assigned to the Respondent at that location and wished to move from working ad hoc hours to working longer and more certain hours.
At a hearing of the Public Accounts Committee (PAC) of Dáil Eireann a TD raised on a no names basis that an agency nurse working in the Respondent had made a complaint of sexual harassment, but that nurse was afraid to take it further for fear that the agency would not make her available for further work within the Respondent.
The Complainant’s case is that on that same day 17th January 2019, the Most senior Nurse Manager with the Respondent telephoned her line manager within her agency. He told her line manager that the Complainant would not be placed on any more shifts in any location within the Respondent going forward.
The Complainant submitted that this conversation resulted in her summary dismissal as it took place a number of hours after her complaint was raised at the Public Accounts meeting.
The Complainant then relied on a series of emails sent thereafter.
The Complainant met with the Most senior Nurse Manager and a Director of the Agency on the 19th of February 2019. She recorded this meeting on her phone. Neither the Most senior Nurse Manager nor the Agency Director knew of the recording. The recording was provided to me.
The Complainant noted that two alternative reasons for her dismissal were given to her namely - her missing training courses and - a minor incident in another location of the Respondent seven months previously.
The Complainant submitted that the primary if not the sole reason for her dismissal was that of her complaint of sexual assault and the raising of the Respondent’s handling of same at the Public Accounts Committee (PAC) meeting. She submitted that her dismissal occurred on the same day as the PAC meeting via an outside normal working hours telephone call. She submitted that the proximity of the two was indicative that it was triggered by her complaint.
The Complainant submitted that the decision to dismiss her was linked to her health safety and welfare at work complaint. She relied on Section 27 of the Safety, Health and Welfare at Work Act 2005. She submitted she was penalised. She relied on the cases of Stobart Ireland Drivers Services Limited –v- Keith Carroll (2013) IEHC 581 and a Female Teacher –v- Board of Management (DEC-E/2012/103).
The Complainant submitted that her complaint of sexual assault to her employer fell under Section 27 (3) (c). She submitted that her complaint should have been considered by a degree of importance by initiating an investigation. This was particularly when an allegation of sexual assault was made. She submitted that no attempt was made by management within the Respondent to consider their policy during which the assault occurred. No steps were taken to identify any ongoing risk for her or indeed any other employee. The Complainant was reluctant to raise the matter again for fear of penalisation.
CA-00029661-002
The Complainant’s case is that she was dismissed by the Respondent.
The Complainant relied on telephone calls and emails that she had received from her line manager with the Respondent. She received an email on the 17th of January 2019 advising her
“apparently there is a problem. I’m only back today but all your shifts have been advised by (agency) following instructions from care and rehab. Not exactly sure what is going on, but they informed me only a while ago that they are cancelling your shifts. I won’t know anymore until [nurse manager] comes down here next Tuesday.”
This was in response to an email from the Complainant to her line manager saying that she had received a call to say that she was “cancelled over the weekend”.
The Complainant further relied on an email from the Most senior Nurse Manager to her line manager in the Respondent dated the 18th of January 2019. She received this under a data access request. It stated
“I spoke with [agency] last evening. [Complainant] will not be reengaged by [Respondent] for any location……”
The Complainant relied on Section 6 (1) of the Unfair Dismissal Act advising that there must be substantial grounds in justifying the dismissal of an employee.
Her case was that she encountered a wall of silence when she enquired for the reason for her dismissal. Her case was that her supervisor in [agency] was unaware of the reason and so she contacted the Respondent on a number of occasions to ascertain same. It took a number of weeks before she was offered a meeting with the Most senior Nurse Manager to discuss her dismissal. The Complainant submitted that if there was a genuine and substantial reason for her dismissal then there should have been no delay in supplying this.
The Complainant submitted that the main reason put forward for her dismissal during this meeting was a minor incident which occurred many months previously and which the Most senior Nurse Manager seemed extremely vague on the details of.
At the end of the meeting reference was made to the Complainant’s training and she informed the Most senior Nurse Manager that she was due to undergo the relevant training that month.
The Complainant submitted that neither of the reasons were sufficient to warrant the summary dismissal of her. She submitted that she was entitled to have fair procedures followed if a decision was made to discipline her. In her case no such procedures were followed. She was not informed of any difficulties in relation to her employment prior to being dismissed.
CA-00029661-003
The Complainant worked for 2 years and 3 months with the Respondent before her dismissal. She was not provided with notice on the termination of her employment with the Respondent. Neither was she provided with a payment in lieu.
CA-00029661-004
The Complainant relied on Section 6 (1) of the Protection of Employees (Temporary Agency Work) Act 2012. Under this section she was entitled to the same basic working and employment conditions as direct employee of the hirer under a contract of employment. The Complainant submitted that she should have been entitled to the same HR support and assistance as would have been afforded to any other employee of the Respondent. If these conditions had been available to the Complainant she would have had a clear route to make enquiries regarding her complaint of sexual assault and been afforded the benefit of a disciplinary process in the termination of her employment.
The Complainant was treated differently as a result of being an agency worker and suffered due to same.
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Summary of Respondent’s Case:
The Respondent explained that the Complainant was at all times an agency nurse and employed by the employment agency.
CA-00029661-001 and CA-00029661-002
The Respondent refuted that the Complainant was penalised for making a complaint pursuant to the terms of the Safety, Health and Welfare Act 2005.
The Respondent strongly rejected the Complainant’s contention that she was unfairly dismissed. It rejected that any dismissal in respect of the Complainant took place.
The Respondent explained that the Complainant was an agency nurse and the agency nurses make up approximately 5% of the Respondent’s nursing cohort at any particular time. Agency nurses a were employed by the Respondent on an “as required” basis. The Complainant’s working pattern varied, and she was employed on a roster of one to three to five shifts per week depending on the Respondent’s requirements.
The Respondent accepted that the Complainant was a capable and experienced nurse and it did not have any difficulty with her clinical performance while she worked within its system.
The Respondent accepted the Complainant was inappropriately and unacceptably touched on her breast by the person in the control and supervision on the Respondent while she was working. The Respondent accepted this was an assault. The assault was reported to management of the Respondent at that location. The employee who spoke with the Complainant advised her to report matters to An Garda Síochána. This witness attended at the hearing. He gave evidence that the Complainant replied
“I don’t want to go to Gardai”.
Details of the Complainant’s reporting to the Respondent was presented to me. Evidence was presented how the complaint was dealt with internally by the Respondent and the sanction imposed. The Respondent submitted that the decision maker dealt with the matter in a timely manner and had a full understanding of what had happened. It advised that the sanction imposed was appropriate in the circumstances.
The Respondent submitted that they did not have any further contact with the Garda Síochána in relation to the Complainant’s complaint of sexual assault.
The Respondent accepted that the issue of sexual assault on a member of the staff was raised by a TD at the Public Accounts Committee (PAC) meeting. The Respondent strongly submitted that the reference at the PAC meeting had absolutely nothing to do with the fact that the Complainant was ineligible to carry out shifts for the Respondent at that time.
The Respondent advised of an earlier incident with the Complainant and a nurse manager on the 28th of June 2018 at a different location within the Respondents service. The Respondent submitted that the Complainant’s nurse manager involved in that incident had contacted the Most senior Nurse Manager to make a complaint about the Complainant’s behaviour. The Most senior Nurse Manager subsequently contacted the Complainant’s Agency who confirmed that they would investigate the matter and the Complainant would not be assigned to the location in which the incident occurred until the matter had been fully investigated.
The Respondent explained that the Complainant herself made direct contact with a line manager of the Respondent in a different location to advise that she was available for work and that line manager assigned the Complainant shifts and continued to have a “local arrangement” with the Complainant booking nursing shifts directly. This essentially side tracked the normal agency procedures.
In January 2019 while the Most senior Nurse Manager was reviewing time sheets, he recalled that he had not received any update from the agency in relation to the incident of the 28th of June 2018. He contacted the agency to enquire as to same. In the course of the conversation, he was informed by the agency manger that the Complainant had not completed two training courses which were required under her contract of employment. Accordingly, the Respondent’s Most senior Nurse Manager was informed that the Complainant could not be made available for any further shifts with the Respondent until she had satisfied this training and was in a position to meet the necessary standard.
The Respondent submitted that it was this intervention by the agency which resulted in the Complainant not being provided with further shifts in the month of January 2019.
The Respondent Most senior Nurse Manager and the Agency director did meet with the Complainant in February 2019 and at the meeting the Most senior Nurse Manager confirmed that the Respondent had no difficulties with her clinical performance and advised her that once she had completed her training requirements he was happy for her to return to the agency nursing roster.
The Respondent’s case is that the Complainant did not make herself available for any further agency shifts. It submitted that the Complainant was not dismissed from her position as an agency nurse and the fact that she has not returned to the agency shift roster was not as a result of any action taken by the Respondent.
Evidence was produced of a series of emails between the agency and the Complainant commencing with her initial engagement and advising her as to the requirement to do the courses, the cost of the courses, the dates when the courses would be available. These were dated May 2018, June 2018, 2nd of January 2019, 3rd of January 2019, 6th of February 2019.
CA-00029661-003
The Respondent disputed that the Complainant was entitled to a notice payment as she was not dismissed.
CA-00029661-004
The Respondent refuted that the Complainant was treated less favourably than permanent colleagues while working in accordance with the terms of her agency nurse contract with the Respondent.
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Findings and Conclusions:
I have taken time to consider the evidence produced to me at the hearing both orally and written.
The parties were very capably represented on both sides and the witnesses that appeared were all courteous to me and the process. It would have been of preferable had the Complainant’s agency line manager been available to give evidence. However, he was not, and I have made my decision on the information provided to me.
I have noted that there was an undercurrent of discontent throughout the working relationship between the three parties. This was apparent at the hearing also.
There was no dispute as to my jurisdiction. These complaints were brought against the end user only. The triangular relationship of agency worker, agency and end user added to the complication of the case and problems that arose for the parties. This has been documented in many employment law cases.
The communication between the parties was not as best practice would suggest. The agency should have been notified of the assault by the end user/ Respondent and better reporting structures should be put in place to prevent such a shortfall in the future. I note that this lack of communication was used by the Complainant to her benefit as she was able to move from one of the Respondent’s centres to another and she arranged her own shifts directly with her line manager in the Respondent.
CA-00029661-001
The burden of proof in this case is on the balance of probabilities. The Safety Health and Welfare at Act 2005 (the Act) is silent on the question of who the burden of proof should be allocated to as between the parties.
In O’ Neill -v- Toni and Guy Blackrock Limited [2010] ELR 1, the Labour Court held:
“In the instant case what is at issue is the motive or reason for the Claimant’s dismissal. That is to be found in the thought process of the decision-makers at the time the decision to dismiss the Complainant was taken. That is something which is peculiarly within the knowledge of the Respondent. It would be palpably unfair to expect the Claimant to adduce direct evidence to show that the Respondent was influenced by his earlier complaints in deciding to dismiss him. Conversely, it is perfectly reasonable to require the Respondent to establish that the reasons for the dismissal were unrelated to his complaints under the Act. 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.”
I have applied this process to come to my decision on this complaint.
I accept that the area the Complainant worked in was a difficult one. The Complainant’s evidence was that her breast was grabbed on the 27th November 2018. The Complainant made a complaint in relation to this assault. This was a complaint relating to her safety. I find that this complaint was a protected act under the provisions of the Act. I understand that the workplace in which she worked could be highly charged, but I find the response from the Respondent to her assault and reporting of it seriously lacking. The Complainant should have been advised as to what actions were being taken on foot of her complaint and kept informed of the process being undertaken. That was especially important taking into account that the Complainant was rostered to work in the same area again a week later. I note that the Complainant continued to work in the same area after the assault under duress.
Section 27 of the Safety, Health and Welfare at work Act 2005 sets out
27. Protection against dismissal and penalisation. (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.
The fact of the Complainants assault and complaint was known in the workplace. I was advised that a whistle-blower (not the Complainant) brought it to the attention of the TD who raised it with the PAC. I hold that the raising of the complaint at the PAC was linked to the protected act made by the Complainant.
On the same day that the case was being raised at the PAC, the complainant’s shifts with the Respondent were cancelled. The Respondent relied on the exact timing of the reference before the PAC as one of the main strands of their response to the complaints. I don’t accept that what time on the 17th January 2019 that the matter was raised before the PAC was of detriment or benefit to either side. It is impossible to know who was aware that the matter was going to be raised. Also liability under the Act is not dependent on a subjective intent on the part of the Respondent.
It is clear from the language of Section 27 that in order to make out a complaint of penalisation, it is necessary for a Complainant to establish that the detriment which is complained of was imposed “for” having committed one of the acts protected by subs. (3). Thus, the detriment giving rise to the Complainant 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 a 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 Complainant having committed the protected act, she would not have suffered the detriment.
I was given two very diverse submissions as to the cancellation of the complainants shifts on the 17th January 2019. Having examined and reflected on both explanations, I prefer the evidence of the Complainant. The concurrence of the date, the urgency of action and the tone of the email of the 18th January 2019 from the Most senior Nurse Manager to the Complainant’s line manager with the Respondent were the primary reasons for my finding.
The Complainant had been working for the Respondent since April 2018 without the required courses and while several strong emails were sent to her by the agency requesting that she complete the course, her shifts were not cancelled except on the day that her case was raised by the Public Accounts Committee. The Director from the agency gave evidence that it was not unusual for courses to be out of date.
Therefore, I am satisfied, as a matter of probability, that, were it not for her complaint regarding her assault being raised before the Public Accounts Committee, the issue of her courses or the incident which occurred in June 2018 would not have resulted in her shifts being cancelled on the 17th January 2019.
CA-00029661-002
The chain of communication between the Complainant and the Respondent commenced with the Complainants email to the agency after 15.00 pm on the 17th January 2019. She wrote:
“I’ve just heard my shifts in the [location] have been cancelled. Can you give me any reason for this? [Line manager] says she doesn’t know what’s going on that it’s something to do with [national nurse manager]
There were a number of further emails that day with the agency concluding with one from her line manager at the agency which read:
“I am following instructions from [Respondent] to advise that all bookings with the [Respondent] are now cancelled as discussed earlier”
The Complainant on the 23rd of January 2019 emailed the Most senior Nurse Manager directly. She wrote
“I am emailing you on foot of your recent decision to block me from working with [Respondent] location. I have asked [agency] and no one can give me a reason for the decision and asked me to see if there is any chance this issue can be resolved. I have worked consistently and diligently with the [Respondent] since November 2016. I have a great fondness for the work and really enjoy it. I am devastated at this development. If you are of the opinion this cannot be worked through could you at least outline the reasons behind your decision. With kind regards…[Complainant].”
In turn the national nurse manager forwarded this email to the agency. This took place on the 24th of January 2019. On the 24th of January 2019 the Complainant followed up with the agency directly again enquiring whether the national nurse manager had given any reason for stopping her shifts. She also emailed twice on the 1st of February 2019.
The email of the Most senior Nurse Manager dated 18th January 2019 was not provided to the Complainant until late Autumn 2019 under a data access request.
I have made a decision in CA-00029661-001 in relation to the cancellation of the Complainant’s shifts. In doing so I have decided that what took place on the 17th January 2019 was not an out and out dismissal. This is on the basis that the Complainant was not communicated with to the effect that she was dismissed or words to that effect. She was an agency nurse working on an agency basis with the Respondent and for her to be dismissed, the Respondent needed to communicate more to her than just the cancellation of her shifts.
Had I made a decision that the Complainant was dismissed, Section 27(5) of the Safety Health and Welfare at Work Act 2006 applies which sets out
(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.
CA-00029661-003
As the Complainant was not dismissed, she is not entitled to a notice payment.
CA-00029661-004
At the hearing the Complainant accepted that she could not identify a legal entitlement that she didn’t receive as an agency worker. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
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-00029661-001 This complaint is well founded. A finding of penalisation is a very serious matter which should be marked with a substantial award of compensation. The Complainant suffered a financial loss arising from the cancellation of her shifts. She had to arrange other employment. There is no limit to the financial award that can be awarded under this Act. In the circumstances of this case I measure the amount of compensation which is just and equitable at €65,000.00. This is two and a half years gross salary for the Complainant. This award is compensation and is not taxable under the Revenue rules.
CA-00029661-002 This complaint is not well founded.
CA-00029661-003 This complaint is not well founded.
CA-00029661-004 This complaint is not well founded. |
Dated: 22/06/2020
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Key Words:
Penalisation, Safety Health and Welfare at Work Act 2005, protected act |