Worker

Employer

Anonymised Parties

Worker

Employer

Representatives

Michelle Connaughton Forsa Trade Union

 H.R. Manager

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 - 00001577

24/07/2023

The claimant has been in the employment of the respondent since 2000 as a Clerical Officer. Following treatment for cancer she alerted her employer to the long term after effects arising from her cancer treatment and having attended Occupational Health she was issued with 3 recommendations regarding alternative working arrangements to facilitate her continued employment with the respondent. She first raised the matter in 2020 but asserted that no progess was made in giving effect to the recommendations and consequently pursued a grievance that was ultimately upheld . The outcome of the grievance process was that the Head of HR recommended that an alternative work location be facilitated at Centre X , at home or through a combined blended working arrangement to facilitate the claimant in rendering effective service into the future. The claimant submitted that she and her representative   had  exhausted all internal processes in endeavouring to have the outcome of the grievance implemented. The responded submitted that they had now created an alternative job at Centre X that was consistent with the Occupational Health recommendations , that the substantive complaint was now resolved , that the time taken to resolve the complaint was necessary and that the complaint was  now moot.

The case before you today relates to our member Ms.G, who is an employee of the  respondent  as a clerical officer. It relates to an alleged breach by the respondent of their own grievance procedures, during which Ms. Gs grievance was upheld at Stage III. It is our member's view that the respondent  has failed in its commitment to put in place measures which would assist Ms. G in her working environment to alleviate challenges that she has been experiencing following cancer treatment, which are acknowledged in 3 separate occupational health reports and recommendations. Ms.G sought the assistance of the Workplace Relations Commission through a referral made on 24h July 2023.

1.      Background to the Dispute

 Ms. G has worked for the respondent  since June 2000, and is a Clerical Officer who works a reduced working week of 19 hours. Her gross monthly salary is €1655.46, pro-rata to the Clerical Officer pay scale. Ms. G's current work location is in location Y , where she works on a reception desk on the upper floor, providing cover for switchboard and carrying out other administration work .

Ms.G  is a cancer survivor, having been off work for  receiving treatment. However that treatment has left Ms. G with long-term effects that include difficulty in memory and concentration in a busy environment, as well as issues with her eyesight that cause difficulty both in work and in driving to and from work.

 September 2020 - Ms. G had brought this matter to the attention of her Line Manager and the  Industrial Relations Manager (since retired) as far back as September 2020. 27th September 2021- Ms. G was reviewed by the respondent’s  Occupational Health Service. While the Occupational Health Physician stated that Ms. G was fit for work, her comments include the following:

 "In my opinion, Ms.G is medically fit for work. In view of Ms. G's continuing medical difficulties, I recommended that she is facilitated with an alternative role in a quiet work environment, if this can be reasonably accommodated. If such a role cannot be facilitated locally, I recommend that you liaise with HR to explore the options which may be available within the wider  employment . (Appendix 1).

The Occupational Health Physician also stated that she would seek medical reports from Ms. G's GP, treating Oncology Consultant, and Ophthalmologist. These reports are attached as Appendix2-4.

21st October 2021- The claimant’s line manager met with Ms. G  on the 1st.December 2021, to discuss the above Occupational Health Recommendation and to carry out a Risk Assessment (Appendix 5). During that meeting Ms. G was open and honest about the difficulties that she was experiencing with her memory and concentration, in an environment where there was a lot of background activity and where she was carrying out several roles at once. Her role entailed answering the switchboard and providing administration support to Health professionals  as well as dealing with members of the public .

 Ms. G also discussed the difficulties that she was experiencing in driving to and from work, due to the deterioration of her eyesight following chemotherapy. During this conversation the Line Manager  asked if Ms. G could avail of a bus or public transport to get to work. Given the remote location of the workplace and Ms. G's home, and the lack of public transport available in this rural area , this was simply not an option and in fact was a unrealistic recommendation/request to make. An action from that meeting on 21st October 2021  was that the Line Manager  would contact Ms.B , HR Manager, regarding an alternative post for Ms. G. (Appendix 6)

 8th December 2021- The Line Manager  wrote to Ms. B. A response from Ms. B dated 22"d December  202 1 states :

 "Unfortunately, at this time, there is no vacancy available but should something arise Ms.G  will be considered'. (Appendix 7)

 10th January 2022 - Ms. G was further reviewed by Occupational Health. The Occupational Health Physician states in her comments: "Ms. G's medical difficulties remain active. She reports ongoing difficulties managing her symptoms in the context of her current role"....."I understand that an alternative role cannot be accommodated at this time. As an alternative position cannot be accommodated, I recommend that consideration is given to allow Ms. G to work from home, if this can be reasonably accommodated'. (Appendix 8)

 28th January 2022 - Having received a request for representation from our member, Forsa made contact with  the Employee Relations Manager on 25th. January 2022, to seek her intervention in supporting Ms.G. An email with all supporting documentation was sent on 28th January 2022. This email is attached as Appendix 9

. 4th April 2022 - Ms. G was reviewed again by Occupational Health. Again this report recommended remote working and states "This would help to support Ms. G to remain in work successfully in my opinion". (Appendix 10)

21st April 2022 - Forsa wrote again to the Employee Relations Manager , having received no response to previous correspondence. Forsa states: *While I note that there is no suitable vacancy currently, it is Forsa's view that alternatives need to be examined to resolve these issues for Ms.G  in the meantime. Forsa is seeking that she be accommodated to work from home even on a trial basis, based on the occupational health recommendations and the recommendation from her GP.....l believe that if we are solution focused, we should be able to find some reasonable accommodations that will assist this employee, without having to put her through the ordeal of having to raise a formal grievance". (Appendix 1 1).

 Formal Grievance Procedure and timeline:

 16th May 2022 - Ms. G subsequently lodged a formal grievance under the  respondent’s 'Grievance Procedure, and the Stage I hearing took place on 16ft May 2022. Ms. G was accompanied by our local union representative. During this hearing, both Ms. G’s and  her representative made suggestions of how remote working could be facilitated for Ms. G even on a trial basis. All of these were rejected out of hand by her line manager. The outcome of this hearing is attached as Appendix 12

 5th July 2022 - Ms. G appealed the outcome to the  Acting General Manager, as per Stage II of the Grievance Procedure. This hearing was held on 5th July 2022. Ms. G's grievance was not upheld and the outcome is attached as Appendix 13.

 8th August 2022 - Ms. G appealed to Stage III of the Grievance Procedure to  the  Head of HR .

 9th February 2023 - Following a number of engagements with the HR Manger, the Stage III hearing eventually took place on 9th February 2023. At Stage III, the Head  upheld  Ms.G’'s grievance, and in her outcome she stated:

 "... an alternative work location at location X , at home or through a combined blended working arrangements of both, is identified  for Ms. G, to ensure that she can continue to render effective service both now and into the future. I would ask that a maximum period of 4 weeks from the date of this decision is provided for consultation to occur to identify alternative work locations for Ms. G" Appendix 14.

 23rd June 2023 - Forsa wrote to Head of HR , and  the General Manager, on 23 June 2023 due to lack of implementation of the accepted outcome as described above. In this correspondence Forsa states "/this inertia on the part of management is extremely disappointing based on the very positive engagement with you during the Stage III grievance, when Ms.G  felt that at last, the issues would be resolved'. This correspondence is attached as Appendix 15.

12th July 2023 - A response was received from the General Manager,. She  acknowledged the delay in implementing the recommendations of the Stage III hearing, and states "we are in the process of getting the accommodation fit for purpose for Ms.G . We hope to have this completed before 1st. September". Appendix 16

24th July 2023 - Forsa wrote again to express our member's disappointment at the 6 month delay, and put the employer on notice of our intention to refer the matter to the Workplace Relations Commission, as per the Grievance Policy. Appendix 17

 24th July 2023 - Ms. G made her referral to the Workplace Relations Commission on 24th.July 2023.

 24th July 2023 – The GM responded on 24th July 2023 to state that a room would be ready for the claimant on 4th September 2023. (Appendix 18)

A decision was made to go ahead with the referral to the Workplace Relations Commission until such time as the recommendations had been implemented in full.

 Upon receipt of the invitation to the Adjudication Hearing, which was received on 17th November 2023, Forsa made contact with Ms. G to seek an update, and to ensure that she was now working out of  Location X  as per the commitment given by the GM  on 24th. July 2023. Much to our disappointment, it transpired that Ms. G at that stage was still not working out of  Location X as agreed.

 30th November 2023 - Forsa wrote to the GM and the Head of HR   on 30ft November 2023 outlining the dissatisfaction and disappointment that the matter was still not resolved despite commitments given by both of them  and indicated our intention to proceed with the Adjudication hearing scheduled for 8th. January 2024. This correspondence is attached as Appendix 19.

 UNION ARGUMENTS

 It is this union's position that the unnecessary delays in addressing the issues that Ms. G has been raising since 2020, and through her union since 2021, have greatly added to her stress and anxiety levels in the intervening period. It is beyond belief that an employer of this magnitude  was unable to provide reasonable accommodation for Ms. G, as recommended in three separate reports from the Occupational Health Physician, and in reports from her GP and Consultants.

 Ms. G is a cancer survivor, and a long time employee of the respondent . The lack of empathy shown to Ms. G upon her return to work, and the lack of willingness to do anything to try to relieve her difficulties is shameful and unacceptable.

Three recommendations by the respondent's own Occupational Health Physician have suggested a quieter work location, or remote working to alleviate some of these difficulties. The Employee Relations Manager who was in post at the time that Forsa raised the issue, stated that this is simply a recommendation and therefore the employer does  not have to implement it. One wonders then why the respondent  have an Occupational Health Department at all if this is the case.

The supporting documentation shows a continued attempt by both our member and this union to address the issues. As previously stated any suggestions put forward by our member or by the union were rejected out of hand by Management, and there seemed to be an unwillingness to make any effort to address the issues being raised, which in our opinion could have very easily have been resolved had there been a desire to do so.

 Even as late as September to December 2023, unnecessary obstacles and red tape, such as a debate over whether Ms. G  could bring her  issued laptop with her to Location X for example, prevented the move even when the General Manager had put all arrangements in place. The respondent’s  Staff Census for November 2023 (Appendix 20) states that there are 644 wholetime equivalent posts in the lower administration Grades III and  IV in the region . Therefore it is hard to accept that in the intervening period since this issue was first raised by our member back in 2020, no suitable vacancy has arisen that Ms. G might have been considered for, and that no alternative work could be identified to allow her  to work remotely. This was also in the midst of the covid pandemic when a large number of staff within the employment were facilitated to work from home successfully.

 A study carried out by Ms. Naomi Algeo, Researcher at the School of Medicine, Trinity, examined women living with and beyond breast cancer diagnoses, who were unaware of their entitlements and rights, mainly because they were not being made aware of same. Ms. Algeo states:

 " Under Irish legislation, any employee with a cancer diagnosis has the right to reasonable accommodations to complete their job role and enjoy equal employment opportunities. This could be anything from a phased return to work after a cancer diagnosis, ergonomic changes to the workspace, or facilitating working from home, if feasible within the job description. Reasonable accommodations are typically put in place to manage side-effects such as cancer-related fatigue, cognitive dysfunction, or reduced activity tolerance". (Reference: Algeo N., Bennett K., ConnollyD. Breast Cancer Sur-tivorship and Employment in Ireland: Legislative Systems and the Return to Work of Women with Breast Cancer. Work. 2022;71:927-939. doi: 10.3233/WOR-205044. - DOI - PubMed)

 As referred to in the above article, the Employment Equality Act 2015 requires employers to take reasonable steps to accommodate the needs of employees with illness and disabilities.

It is Forsa's view that any reasonable employer, the size of the respondent and given that , would be cognisant of the needs of one of their employees and would do their utmost to address those needs. However they have failed to do so.

At the time of finalizing this written submission, Ms. G informed Forsa on 11th. December 2023 that she was finally working from location X.

SUMMARY & Conclusion

Even if one is to examine this case from the time that the formal Grievance was lodged with the employer under their Grievance Procedures, in May 2022, and set aside the failed attempts to have the issues addressed under an informal process from September 2020, it is obvious to see the failure by the  respondent to follow their own procedures, to take the recommendations of their own Occupational Health Department, and to implement their own recommendations following the Stage III hearing.

 There appears to be a complete disregard for the further distress that this has caused Ms G, who continued to attempt to work in the unsuitable work environment, and who experienced near miss incidents in her car when travelling to and from work, due to her ongoing eyesight problems. Even at the latter stages of the process when the General Manager actioned the work necessary to provide an alternative role and work space for Ms.G in Location X , bureaucracy and red tape continued to result in further delays.

Therefore we ask, with respect, that having considered the contents of this submission that the Adjudicator recommends in favour of our member and that consideration be given to redress in the form of compensation, in an amount that the Adjudicator would deem fair and reasonable given the merits of this case.

At the hearing the representative emphasised that the claimant was occupying a generic grade and she acknowledged the involvement of the GM and the Head of HR in bringing the matter to a conclusion..

The claimant said that when she pursued her grievance to the second stage , she felt she was doing something wrong and remained aggrieved with the manner in which the laptop issue was handled.

The respondent’s representative submitted as follows :

Introduction.

 This is the complaint of Ms. G , employed as a Receptionist at  Locacation Y.    During the course of her employment Ms G became unwell and was provided with an OH Recommendation to the effect that she was fit for work and as opportunity arose over time she should be facilitated with a quieter place of work or work from home or a place of work closer to her home at Location X.  

The employee processed a complaint through the employers Grievance Procedure.     The employee complaint was not upheld at Stages 1 & 2 of the Grievance Procedure due to the requirement of the Receptionist job to be performed at location Y and the alternatives sought by Ms G were not available.    At Stage 3 a recommendation was made to identify an alternative job at a work location X.

The employee raised a complaint with the WRC in the absence of progress to a resolution to her grievance.   

The employee complaint is that she wasn’t provided with that Stage 3 Recommendation.    The employee details the period of time over which her grievance hearings took place.

The employer response to the complaint

The employer has created a different job for the employee at location X.    The job is that of a clerical support person to a specialist service.     It is a necessary job that did not previously exist and will enable clinical staff to better apply their time.   That job is consistent with the recommendation of OH, the Stage 3 grievance hearing and the employee preference to work close to home.    

The substantive complaint is moot at this stage.

With respect to the time taken to make this employee accommodation available, it should be noted as follows

v  The work location required renovation to be made a safe place of work.   That renovation work required the involvement and support of another part of the respondent’s services .    The building space was in use for non office purposes and consultation took place on existing user alternative arrangements.

v  The Employer expedited the building work by channelling the job through its in-house maintenance staff rather than putting the job out to tender.

v  A job description for the new role had to be drawn up in conjunction with clinical staff and Ms G.

v  The work location required computer hard wiring work and computer points installed before it could be used for the intended purpose.     The necessary connection to the respondent’s Computer Network also took time.     A new laptop was provided to which the employee was registered on the respondent’s network and as a consequential affect de-registered from a shared computer assigned to location Y.

v  Funding had to be identified for the new job and the necessary work to the location, at the time of a recruitment pause and expenditure control.     It is to the credit of the all the parties involved that progress was made in a difficult time period.

In summary, all of the time taken was necessarily incurred, to establish the newly created job in location X

Summary

The substantive complaint is resolved.

The time taken to resolve the complaint was necessary.

As the complaint is moot, the Employer respectfully says the complaint should not be upheld.

 At the hearing, the respondent’s representative submitted that it was the employees responsibility to make arrangements to travel to  and from work  and that it was not an employer’s liability to mitigate risk. It was advanced that there were limits to the obligations on an employer under equality legislation and invoked the provisions of Nano Nagle in support of their contention that employers were not expected to provide a different job or create a new job. It was advanced that the accommodations extended to the job for which the claimant had been employed. It was submitted that employers were not required to create a job that did not previously exist and the respondent had gone over and above what was required of them. The representative asserted that IT challenges were a factor in the delay and that the delay involved a time frame of 9 months.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties. Having reviewed the respective position of both parties, I note that the respondent did acknowledge the delay in implementing the move for the claimant as far back as July 2023.While I appreciate that the respondent has put forward explanations for that delay, I accept the union’s contention that this gave rise to considerable distress for the claimant and accordingly I am upholding the complaint.

Recommendation

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

I recommend in full and final settlement of this dispute that the respondent pay the claimant a compensatory sum of €1,750 within 4 weeks of the date of this recommendation.