Complainant

Respondent

Parties

Joanne  Carr

Tallaght University Hospital

Representatives

  Self-Represented

IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00048454-003

22/02/2022

Complaint seeking adjudication by the Workplace Relations Commission under Schedule  2 of the Criminal Justice Act 2011

CA-00048454-004

22/02/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00048454-005

28/06/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015

CA-00048454-006

28/06/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00048454-007

28/06/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00048454-008

28/06/2022

The Complainant swore an Affirmation at the outset of the hearing. The Complainant is a Nurse with the Respondent Hospital since October 2016 but also was a student nurse in the hospital from 2009.

The Respondent was represented by IBEC at the hearing with Ms. Sharon Larking, HR, Mr. Brendan Malone, Assistant Director of Nursing, Ms Kseniha Kiraly, Nursing Bank Manager and Ms. Kay McKeogh, Clinical Nurse Manager Two all swearing an Affirmation.

This decision is a summary of the relevant evidence to the complaints referred in the Complaint Form received 22 February 2022 and 28 June 2022. The jurisdiction of an Adjudication Officer is to inquire into a complaint, but this does not extend to making a case for one party over another. There is an onus on each party to present their evidence in full, an opportunity that was presented to each party in this case. Both parties also availed of the opportunity to cross examine the witnesses.

An objection was raised as to having the matter heard in public and parties named by the Respondent. It was objected to by the Complainant.

It was the Complainant’s evidence that she worked as a staff nurse with the Respondent. After raising complaints about nursing and medical practices in early 2020, her concerns were dismissed by management in the form of negative behaviour, bullying, harassment, alienation, and discrimination, which are ongoing.

The NMBI Code of Professional Conduct and Ethics was referenced during the hearing, along with the Tallaght University Hospital Zero Harm Patient Safety Initiative (Medications), Nuremburg Code, Universal Declaration on Bioethics and Human Rights (UDBHR), Early Warning Score (EWS), and news articles.

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998- CA-00048454-003

It was the Complainant’s evidence that she was unlawfully discriminated against on the grounds of her religion and was treated unlawfully in the conditions of her employment, with harassment and victimization.

In March and July 2020, the Complainant was spoken to behind closed doors by staff members expressing concern about her use of her private social media. The Complainant described feeling intimidated, disempowered, and confused.

In August 2020, the Complainant described an incident when a colleague shouted at her in a public corridor.

It was the Complainant’s evidence that on 12 February 2021, Ms Lynch emailed Mr Malone, Ms Larkin, and Ms McCarthy stating she was uncomfortable with the Complainant working in the hospital.

In March 2021, the Complainant described being berated loudly, angrily, and aggressively by a Registrar in front of patients and staff after questioning his decision around patient care in front of the patient. She subsequently completed an IRF.

In March 2021, the Complainant stated she suffered negative behaviour from two staff members on her social media. This was reported to her Line Manager and Assistant Director of Nursing. She described being supported by management and required to attend unrecorded meetings with no witnesses with management. She stated she declined to do so and consequently; any support she could have been offered was dropped by the management who quoted ‘policy’ reasons.

On 17 June 2021, the Complainant described an incident in the A + E department where a colleague looked her up and down and stared at her before telling her she was not needed in that department. This happened for a second time when she was assigned to the Acute Medical Unit before again being reassigned returned to the A + E where the Complainant described feeling shadowed and corrected unnecessarily. When the Complainant highlighted a concern, she was quickly moved to another ward.

On an undated occasion, the Complainant felt a hostile response from a Clinical Nurse Manager and was told she was not needed on that ward.

In the Stokes ward, the Complainant described the Clinical Nurse Manager (CNM) as being hostile and ignoring her when she raised an IRF. The Complainant stated she was treated less favourably than other staff when the CNM reprimanded her unfairly for something that was not her responsibility behind closed doors in her office. Another occasion was when the same CNM attempted to assign blame to the Complainant for an issue she had raised as a patient safety concern, which was subsequently dropped when challenged by the Complainant.

Another example given by the Complainant was her treatment by an Assistant Director of Nursing (ADON) who displayed consistently hostile, harassing, and intimidating behaviour, along with talking about her, excluding her, and treating her differently and less favourably compared to other staff. On two occasions, the Complainant described being taken into the treatment room, the door being closed, and the DON blocking her way, and berating her for not following directions, which she was uncomfortable with. The ADON reported her to the Director of Nursing who apologised to the Complainant and advised it was not her fault or responsibility.

The Complainant stated she made persistent appeals for HR and Management at the Staff Bank to acknowledge the bullying she was subjected to and assist her in resolving it. Instead, she was repeatedly required to attend meetings behind closed doors. She described the approach as lacking in empathy or flexibility, and they repeatedly quoted policy, procedure, and contractual obligations. The Complainant gave evidence that she was told by HR to cease communicating in what HR deemed to be an inappropriate manner.

Complaint seeking adjudication by the Workplace Relations Commission under Schedule  2 of the Criminal Justice Act 2011 - CA-00048454-004

The Respondent denies the Complainant was penalised as it was not.

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 - CA-00048454-007

The Complainant stated that she received an unknown payment from the Respondent of €40.77. When she emailed her manager no response was received as to what these payments related to. Instead she was referred to payroll.

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 - CA-00048454-008

The same evidence was given in relation to CA-00048454-008.

Preliminary Objection

The Responded raised two objections at the outset of the hearing

1.      Dual complaints

It was submitted by the Respondent that the Employment Equality complaint and a complaint under the Industrial Relations legislation are undisguisable and therefore, dual complaints. The authorises of Henderson v Henderson,  (1843) 3 Hare 100,Cunningham v Intel Ireland Limited, [2013] IEHC 207 and Parsons v Iarnrod Eireann [1997] 2 I.R. 523.

2.      Time

The Complainant failed to identify the most recent date of discrimination. Reference to the dates in which raises complaints relate to 2020 – 2021. The Complaint Form was received by the WRC on 22 February 2022 and therefore the cognisable period under the Act for review is 23 August to 2021 to 22 February 2022. The Respondent relied on Section 41 of the Workplace Relations Act 2015.

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998- CA-00048454-003

The Respondent denies the Complainant’s allegations. It was the Respondent’s submission, further to its objection above, that the Complainant did not identify discrimination for the purposes of the Employment Equality Act 1998. At no stage did the Complainant raise any complaint regarding her religious status or link any grievance to such status. The Respondent submitted it was not aware of the Complainant’s religious status. It was submitted the Complainant did not ground her claim on how she was treated less favourably in respect of her terms and conditions because of her religious status. The Complainant failed to demonstrate how she was harassed because of her religious status and failed to show how she was victimised as a consequence of her religious status. 

Consequently, the Complainant failed to discharge the burden of proof.

Complaint seeking adjudication by the Workplace Relations Commission under Schedule  2 of the Criminal Justice Act 2011 - CA-00048454-004

The Respondent denies having knowledge that it was the Complainant made a complaint to the An Garda Síochana and HIQA. It further denies penalisation.

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 - CA-00048454-007

It was the Respondent’s evidence that there were no deductions. The Complainant received sick pay as she was on certified leave, a covid recognition payment and tax refunds.

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 - CA-00048454-008

The same evidence was given in relation to CA-00048454-008.

Preliminary Objections

Complaints Received

I find that while there was initial correspondence in the form of a letter dated 31 January 2023 from the Complainant, this did not contain any clear details about her complaints. The Complainant duly submitted a Complaint Form signed 20 February 2022 and received by the WRC on 22 February 2022, clearly indicating her complaints. Consequently, the date of receipt of the first set of complaints is 22 February 2022 and not 31 January 2022. I have amended the dates accordingly based on this decision.

Dual Complaints

I do not accept that the complaints under the Employment Equality Act and Industrial Relations disputes are the same. Firstly, the case law relied upon by the Respondent relates to civil and personal injuries proceedings before the civil courts and unfair dismissal complaints before the EAT and equality before the Equality Tribunal. These are not comparable to the remit of the Industrial Relations legislation, which is a voluntary process dealing solely with disputes.

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998- CA-00048454-003

Section 77 (5) (a) of the Employment Equality Act 1998 sets out the time limits for referral of complaints to the Workplace Relations Commission:-

“ Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.”

Section 77 (5) (b) does provide for an extension of time but there was no such application made.

The Complainant delivered detailed evidence and submissions in advance and during the hearing. The most recent date relating to a complaint that was given in evidence was 17 June 2021. This complaint was received on 22 February 2022 by the WRC which is outside the 6-month period provided for in Section 77 (5) (a).

There is no evidence before me establishing that the discrimination is ongoing beyond June 2021.

Consequently, I do not have the jurisdiction pursuant Section 77 (5) (a) of the Act.

Complaint seeking adjudication by the Workplace Relations Commission under Schedule  2 of the Criminal Justice Act 2011 - CA-00048454-004

I asked the Complainant two clear questions at the hearing. Firstly, when did she make the complaint to An Garda Síochana and secondly, when did she make the complaint to HIQA. The answer to both was she could not recall, not even the month.

The Respondent asked, during cross examination, if the Gardaí and HIQA explain that disclosure were confidential to which the Complainant responded; “yes that’s the purpose”.

There are two dates referred to by the Respondent in acknowledging it was contacted by the Gardaí on 19 January 2021 and HIQA on 11 August 2020 however no names were given.

In light of the above together with the Complainant’s own evidence the latest date of a complaint was June 2021, there is no evidence that this matter falls within the 6-month time period provided for in Section 41 of the Workplace Relations Act 2015.

Section 41 (5) deals with the time limits complaints can be entrained

“(6) Subject to subsection (8), 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.”

The Criminal Justice Act 2011 falls within Schedule 6 of the 2015 Act.

Again where no application for an extension of time was sought I find I do not have the jurisdiction in this complaint pursuant to Section 41 (5) of the 20215 Act.

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 - CA-00048454-007

The Complainant confirmed she was paid while on sick leave but was not aware of the policy. Neither was she aware of what she claims was deducted from her wages stating she “was not familiar with that.

It was the Complainant’s own evidence that she received an unknown payment from the Respondent of €40.77. There is no complaint of a deduction or under payment.  Consequently, I find the complaint is not well founded.

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 - CA-00048454-008

Similarly, the Complainant is making a complaint that she was paid €40.77 by the Respondent. There was no evidence of a deduction or non-payment of wages. Consequently, I find the complaint is not well founded.

This decision is a summary of the relevant evidence to the complaints referred in the Complaint Form received 22 February 2022 and 28 June 2022. This decision relates to a complaint by an employee against her employer. The naming and details of patients or parties complained of are not relevant for the purposes of this decision and for that reason I have decided not to divert from the practice of naming the parties.

An objection was raised as to having the matter heard in public and parties named by the Respondent. It was objected to by the Complainant.

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998- CA-00048454-003

I do not have jurisdiction to hear this complaint.

Complaint seeking adjudication by the Workplace Relations Commission under Schedule  2 of the Criminal Justice Act 2011 - CA-00048454-004

I do not have jurisdiction to hear this complaint.

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 - CA-00048454-007

I find the complaint is not well founded.

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 - CA-00048454-008

I find the complaint is not well founded.

Payment of wages – Equality – Time – Criminal Justice Act – Time