Complainant

Respondent

Parties

Paula  Mc Cormack

HSE South East Community Healthcare

Complainant

Respondent

Anonymised Parties

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Representatives

Colm Porter Irish Nurses and Midwives Organisation

Emily Sexton, Comyn Kelleher Tobin Solicitors

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-00055714-001

24/03/2023

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 complainant and two witnesses for the respondent gave their evidence under affirmation. Cross examination was facilitated.

The complainant submitted that she was penalised as a result of raising health and safety matters in contravention of Section 27 of the Safety, Health and Welfare at Work Act 2005.

The complainant is employed as a public health nurse having originally qualified as a registered general staff nurse. In August 2022 the health centre where she worked had a visit from the Area Network Manager. Discussions took place around health and safety issues with the health centre. The complainant was asked to compile a list of health and safety issues for review and follow up. She submitted these by e-mail on 14 September 2022,

In October 2022 the complainant requested a review of her desk space which she felt did not meet ergonomic requirements. The complainant submitted that this should have occurred for all employees as a matter of course but did not take place. Supporting medical documentation recommending this review was supplied to the management from both her General Practitioner and Consultant and was the subject of a subsequent review by an occupational health physician.

The complainant submitted that on foot of this request and further to the e-mail of 14 September, the Director of Public Health Nursing took a unilateral decision to remove the complainant from the health centre effective from 1 November 2022. This was conveyed to the complainant on November 1st, she then raised an objection to moving however the move was enforced.  The complainant submitted that she tried to engage with her manager stating that she could await the ergonomic assessment. The complainant noted that other staff who had been advised that their desk needed to be replaced also were not the subject of redeployment.

The complainant submitted that when she moved to the new location, the manager there raised the base of her computer with printing paper to avoid neck strain, an accommodation that the complainant had made to her own laptop while in the original location. It was submitted that this compounds the argument that the move was not in the interest of health and safety but because she advocated for a review.

The complainant submitted that she lodged a grievance in objection to the move but the decision regarding the grievance was that she was moved for health and safety reasons. The complainant escalated the grievance to Stage 2. The hearing of this took place on 15 December 2022. The complainant was reinstated to the original location with immediate effect and an ergonomic assessment was to be arranged. However, the complainants claim for related annual leave; work related sick leave; and the additional financial burden of mileage cost and time were not conceded by management at the stage 2 or subsequent stage 3 hearing.

The complainant submitted that she returned to the initial location in January 2023 although the ergonomic assessment did not take place until February. In mid-February the complainant went on sick leave until May and because of the earlier period of sick leave she did not have full access to the sick pay scheme.

The complainant submitted that the consequences of the redeployment were that she took six weeks sick leave, half of the possible certified sick leave allowance. It was also submitted that 2 1/2 hours of annual leave were utilised during the redeployment. The complainant submitted that she also incurred additional mileage time and costs, and payment for GP visits.  The complainant submitted that she incurred a total cost of between €8,000 and €10,000 and the continuing financial burden for the loss of access to the sick pay scheme.  Although there are no costings provided for the humiliation and damage to her reputation, she also seeks this be taken into account.

Complainants’ testimony:

The complainant stated that she had previously talked to management regarding the health and safety issues in the center. She noted that in August health and safety concerns were raised during a visit by regional management and she raised a report on the health and safety concerns. She stated that she felt they were nitpicking about the issues that were raised and concentrated only on the less important ones. When she was informed about the redeployment, she was never told that it was only temporary and furthermore there was no communication before the redeployment. She objected to the move and contacted her GP and consultant that day. She noted that the respondent had knowledge of the move before it happened but did not see fit to raise it with her.

Under cross examination it was put to her that she did not copy management in on her e-mail. The complainant noted that she did not think it was relevant and she did not copy the line manager in as this had arisen as a result of the regional visit. The complainant noted that issues had first arisen in July of 2022.  She noted that it was unsafe to face away from patients. She noted that she was aware of her own obligations under section 13 of the act but that she's also raising issues on behalf of other staff. When asked were they aware that she was raising issues on their behalf she said yes that she simply copied out what they had written to her. In relation to the e-mail of 26 October complainant noted that she didn't think that the respondent would do anything as she wouldn't have expected immediate action. It was put to her that she stayed out on sick leave after the stage 2 outcome, but she noted that she was not sure of when the risk assessment was due to take place. In respect of the temporary move, she was never told that it was temporary.

It was put to her that the issue of travel time and mileage was already dealt with by the respondent, but she said that it takes 49 minutes each way with traffic and that this was not fully dealt with.

The complainant confirmed that the ergonomic assessment took place in February but noted that nothing had changed when she originally returned to the original location.

The respondent submitted that in order to make out a complaint of penalisation contrary to the 2005 Act, it is necessary for a complainant to establish that the detriment of which he/she has complained was imposed on him/her “for” having committed the Protected Act. The penalisation will usually comprise an identifiable act or omission on the part of the employer which affects, to his or her detriment the employee. The word “detriment” is given its ordinary and natural meaning of causing harm or damage as held by Hyland J in Conway v. Department of Agriculture [2020] IEHC 665.

The respondent submitted that the Labour Court in the case of An Garda Siochana v. Hazel Delahunt [HSD 1311] noted that the term “detriment” is not defined in the legislation but that it has been considered in some UK decisions which noted that “a detriment exists if a reasonable person/worker would or might take the view that the [treatment] was in all the circumstances to his detriment”.

The Respondent refuted the claim submitted by the complainant who alleges she was penalised for raising health & safety concerns and requests in good faith.

The respondent noted that the complainant submitted 23 concerns/issues under health & safety related to the Health Centre, including 9 which appear to relate only to herself/her own workspace/desk and are not matters concerning the staff of any other department/discipline.

The respondent submitted that it is factually incorrect for the complainant to state that she was redeployed on foot of raising a single request, under health and safety, to have her workstation reviewed. This misconstrues what occurred. The respondent drew the Adjudication Officer’s attention to a clause in the complainant’s submissions referring to an email dated 14 September 2022 as part of the reason for re-deployment decision. The respondent clarified that this email was not sent to management but was brought to its attention by the Area Network Manager.

The respondent submitted that given the concerns/issues raised by the complainant, but primarily due to the specific concerns which the complainant asserted affected her and had aggravated her back injury, and given the complainant’s  assertion that she believed she was coming to work in an unsafe working environment, management took the decision to redeploy, on a temporary basis and by way of protective measure, to a health centre which had scored highly on a recent  Health and Safety audit.  This was done as an immediate protection to the employee to allow time to address/examine the concerns brought to their attention.  This temporary redeployment was to occur from 1st November 2022 to allow for the health & safety concerns to be progressed and addressed.

The respondent refuted that this measure was “a punitive measure” and asserts that the temporary redeployment to an alternative work location was not intended as and was not in fact a punitive measure but was instead a measure taken in an effort to protect the complainant and mitigate against any possible risk to her health and safety.

The respondent submitted that whilst it is the case that another staff member was re-deployed to the health centre in place of the complainant, nursing management did discuss the circumstances with that staff member prior to re-deployment and that the staff member did not have any health and safety objections to being re-deployed there.  No other staff member of the complainant’s grade raised any health and safety concerns regarding the health Centre nor any specific concerns for their own health and safety/work environment.

The respondent submitted that at the time the Stage 2 Grievance hearing occurred (15th December 2022) the General Manager was in a position to return the complainant to the original location once she was certified fit to resume duty.  This followed a period of certified sick leave. Unfortunately, the complainant was not certified fit to resume duty by her GP and submitted further medical certification up to and including 31st December 2022.

It is the employer’s position as the original grievance pertaining to the redeployment was upheld at Stage 2 that the only residual outstanding request is pertaining to her sick leave reinstatement request.

The respondent submitted that the “setting aside” of sick leave the Public Service Sick Leave Scheme and any associated social welfare deductions and payments are governed by prescriptive legislation around eligibility for payment, disqualification for payment etc. while an employee is absent from work. This legislation is silent on causation in relation to payment for sickness absence nor is there any obligation on an employee to provide cause of absence in order to avail of the terms of the Public Service Sick Leave Scheme. The respondent is not in a position to alter the terms of this scheme by setting aside the complainant’s sick leave as she had been paid in full in accordance with the provisions of this scheme.  For the avoidance of doubt, the respondent’s position is that the complainant’s sick leave was dealt with entirely in accordance with the statutory scheme and relevant Circulars and there is no question that the respondent’s management of that aspect constitutes or can constitute a detriment to her.  The respondent submitted that the re-deployment of the complainant to another health centre was not and cannot be considered an act of detriment. It was never intended to be a punitive measure, nor did it cause any detriment to her on any objective assessment. In fact, the decision was a decision taken to support the complainant and to mitigate against risks to her health and safety.

The respondent noted that the complainant referred to the consequences of the redeployment and noted the following:

-          6 weeks sick leave – the complainant was on full pay during her period of certified sick leave. In addition, noting that the complainant’s grievance was upheld at Stage 2 and a decision made that she could return to the original Health Centre, she remained out on certified sick leave for a period of 3 weeks thereafter.

-          2.5 hours of annual leave during period of redeployment – the respondent does not believe that same is in any way relevant to the complaint herein – there was no compulsion on the complainant to take annual leave.

-          Time spent travelling the second location instead of her original location, this matter was dealt with on an exceptional basis as a result of the Stage 3 Grievance procedures.

-          Mileage difference - again this was addressed in the Stage 3 Grievance outcome letter

-          GP costs – such matters are entirely a matter for the complainant.

-          With reference to the “Total cost” - these figures appear to include a speculative loss of access to sick pay: the complainant was on certified sick leave and was paid in full for her periods of certified sick leave.

The respondent referred to the Labour Court’s seminal decision in the case of O’Neill v. Toni and Guy Blackrock Limited [2010] 21 E.L.R which considered in detail the matter of a causative link as follows:

“It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by Subsection 3. Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained the commission of a protected act must be an operative cause in the sese that “but for” the Claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned conduct”.

The Toni and Guy case firmly establishes the “but for” test as it is generally referred to in penalisation cases.

Relevant witness testimony:

The first witness for the respondent was the Interim Director of Public Health Nursing she noted that she received an e-mail from the Area Regional Manager and she looked into the matter to find out the time frame for the schedule of works. It was noted that it was under consideration but that there was no time frame for completion in place. She noted that she was fearful of the complainant sustaining further injury and also noted that this was the first reference to a sit-to-stand desk. She noted that her motivation for moving the complainant was not one of penalisation but was one to protect the complainant for further deterioration of her injury. She said she noted that she was due to communicate the move to the complainant but that she was out sick. She noted that it was always envisaged to be a temporary move as the substantive post remained in the initial location. She noted that she couldn't recall completely but her recollection was that the complainant was not happy with the move.

The witness noted that the complainant had rearranged the move and certain aspects need to be rearranged to eliminate risks that had arisen with the organisation of the office space. These decisions were taken purely on health and safety grounds. The witness noted that the complainant had no remit over anyone else in the building and noted that the employer simply responded to safety issues that were raised. She stated that this ergonomic assessment took place in mid-December and thereafter there were some consultations with the complainant but ultimately that they got the ergonomic report back in April with a revised time frame of June 2023 for implementation.  She noted that the sit- to-stand desk was ordered in November and was delivered in January 2023

Under cross examination the witness was asked whether she was aware of the importance of the complainants move to the original location and she replied that” she was absolutely aware of it”.  She noted that the sit-to-stand desk was noted by the complainant as part of the reason why the location was unsafe but that it was only one issue amongst twenty-three complaints made.  It was put to the witness that there seemed to be a great urgency in moving the complainant but she noted that the complainant was indicating that she was suffering ongoing injury and this gave rise to the need to move her. The witness stated that the second location had recently passed the H&S audit and that was why it was chosen as a location to move the complainant on a temporary basis. The witness stated that the only alternative to moving the complainant was to, as the complainant said in her own words, “leave her where she was suffering”.

The second witness for the respondent was responsible for primary care services for 20 centres. She noted that the centre was expected to close in the next few years and that it was not a high priority for development.

The witness confirmed that she dealt with the Stage 2 grievance and noted that matters were raised within Stage 2 that were not part of the Stage 1 grievance. The complainant advised her that she had gone off pay but the witness noted that this was not the case. She confirmed that break facilities were not mentioned, and that mileage was not raised at the hearing. She also added that the setting aside of sick leave was not raised either.  He noted that she was not aware of any injuries amongst other staff of the health centre and confirmed that she was not in receipt of the most recent report from the occupational health specialist.

Under cross examination the witness stated that she understood that some upgrading works had been carried out and therefore the complainant agreed to the return to the original location. She was asked whether there were any outstanding issues and she noted that the issues of breaks and the issue of the sit-to-stand desk remained outstanding. The witness confirmed that she was not aware as to why the complainant went on sick leave.

Section 27 (1), (2) & (3) of the Act deal with the protections against penalisation of a person who has made a Health and Safety complaint.

(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.

At first glance, the complainant appears to have been redeployed in response to raising concerns regarding Health and Safety matters. No other staff were redeployed to other locations.  However, the evidence presented in the course of the hearing indicates that an issue was raised by the complainant, that her injury was becoming worse as a direct result of remaining in the location.  This suggestion was not contradicted by the complainant and appears to be an agreed fact.  If it is the case that the complainant indicated to the respondent that an injury that she was suffering from, which she had notified her employer of, was being exacerbated by remaining in a particular location, it appears to me that a reasonable employer would be duty bound to act immediately to remove a worker from an environment that was exacerbating an injury.

The Interim Director of Public Health Nursing gave evidence that this was the main reason for moving the complainant and doing so without delay.  This reason for moving the complainant was not challenged by the complainant in any meaningful way, although other reasons were suggested in addition to the ‘exacerbation of an injury’ reason, they did not undermine the validity of the argument being put forward by the Interim Director.  Having considered this fact, I find that once the complainant indicated that an injury was being exacerbated by being present in a named location, there was an onus on the employer to act without delay to reduce the negative impact outlined by the complainant.  As such I find that the complainant was not penalised by the move, although it may have had unwanted consequences, remaining in situ without other accommodations was no longer an option.

Section 27(2)(c) indicated that changing a location of a place of work may amount to penalisation, I find that the respondent has established a reason for the change of location of the place of work that is unrelated to possible penalisation.  I find that it was reasonable for the respondent to move the complainant to another location in all the circumstances and that penalisation has not been established in relation to this complaint.

As I have found that it was reasonable for the respondent to move the complainant and the reason provided was not related to penalisation of the complainant, I find that the complaint is not well founded.

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complaint is not well founded.

Safety, Health and Welfare at Work Act - penalisation – not established – complaint not well founded.