ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00017993
Health Services Provider
Jason O'Sullivan Solicitors
Comyn Kelleher Tobin Solicitors
Complaint 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
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014
Date of Adjudication Hearing: 12/06/2019
Workplace Relations Commission Adjudication Officer: Marie Flynn
In accordance with Section 41 of the Workplace Relations Act, 2015following 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.
Both parties made supplementary submissions following the hearing. The final submission was received by the Workplace Relations Commission on 12th July 2019.
The Complainant has submitted complaints under the Safety, Health & Welfare at Work Act, 2005 and the Protected Disclosures Act, 2014 alleging penalisation as a result of raising certain matters with the Respondent.
Preliminary Issue: Time Limits
Summary of Respondent’s Case:
The Respondent submits that, in accordance with the provisions set out in Section 41 of the Workplace Relations Act, 2015, the herein complaints must be presented to the WRC within six months of the alleged contravention or an extended time limit of up to 12 months for “reasonable cause”.
The Respondent submits that the Complainant alleges that he made disclosures and/or complaints in or about October 2014 and that he was penalised as a result of same.
The Respondent submits that the herein complaints were presented to the WRC on 14th November 2018 and, therefore, the cognisable period is the 6 month period to that date i.e. 15th May 2018 to 14th November 2018.
The Respondent submits, therefore, that the herein complaints are out of time and the Adjudication Officer does not have jurisdiction to deal with same and the complaints should be dismissed.
Additionally, the Respondent submits that there is an element of duplication in the Complainant’s claim and it is the Respondent’s position that the Complainant cannot maintain and succeed under both of the heads of claim as this would amount to double recovery and double litigation of the same issues. In this regard, the Respondent relies on Henderson v Henderson 3 Hare 100.
Without prejudice to the preliminary issued outlined above, the Respondent submits the following chronology of events relating to the Complainant’s employment since October 2014:
On 23rd October 2014, the Complainant wrote a letter to the Respondent asking to be relieved of his duties as a Grade 4 Supplies Officer and effectively sought a demotion to a Grade 3 post (a lower grade) in the Supplies Department of Hospital A. This correspondence stated only that there were "several reasons" for his decision but did not elaborate on same.
On 30th October 2014, the Complainant wrote a further letter seeking to retract that resignation from his Grade 4 position. He suggested that "stress levels of the job played a big part" in his decision to "take a step back”.
The Complainant was referred to the Respondent's internal Occupational Health Department on 3rd November 2014. The Complainant was absent from work due to illness from 5th November 2014 onwards.
A letter from Occupational Health dated 24th November 2014 certified the Complainant as "unfit for work” at that time. It was indicated that there were a number of work-related stressors that were impacting on his health and well-being. The Complainant remained on sick leave.
The Respondent wrote to the Complainant on 12th December 2014 advising that as the Complainant was attributing his absence from work to stress, a process of engagement would have to occur in relation to his return to work. It was indicated that the Respondent was not in a position to commence that process until January 2015 and therefore, in the event the Complainant was certified as fit to work prior to January 2015, as a temporary protective measure, he was being assigned to the procurement team based at Hospital B. It was stated that this was an interim arrangement only pending completion of the review process with the Complainant and other members of the Hospital A procurement team.
The Complainant advised the Respondent, by letter of 16h December 2014 that he did not want to take up the re-assigned role in Hospital B.
On 12th January 2015, the Complainant wrote to the Respondent enquiring about the commencement of the review process on the basis he had at that stage been deemed fit to resume work but had been advised by the Respondent not to return to his post in Hospital A.
On 22nd January 2015, the Respondent wrote to the Complainant and invited him to make a formal complaint detailing the work issues which were causing him stress and indicated that same would be dealt with under the Respondent’s Grievance Policy.
On 26th January 2015, the Complainant replied, enclosing a 13-page document setting out various complaints.
A preliminary screening of these complaints was carried out under the Respondent's dignity at work procedure. On 6th February 2015, the Respondent wrote to the Complainant with a copy of the preliminary screening report. This indicated that in the main the issues which the Complainant had raised were grievances with the exception of two complaints which required further preliminary fact gathering. It was indicated that many of the remaining issues could be resolved through the grievance procedure.
Following interviews with other staff it was determined that no corroboration existed for the Complainant's version of events.
Despite efforts to resolve matters throughout 2015 and 2016, including two unsuccessful attempts at mediation, the Complainant's issues were not resolved to his satisfaction.
Following a formal request from the Complainant's trade union representative for an independent investigation of his complaints, on 14th July 2017, the Respondent wrote to the Complainant confirming that it agreed to an investigation of the matters outlined in his complaint dated 26th January 2015. It was indicated that the investigation would be conducted in accordance with the Respondent’s dignity at work policy. The Complainant was given the investigation terms of reference.
In a letter dated 1st December 2017 from the Complainant’s trade union representative to the Respondent, it was indicated that the Complainant would not be participating in the investigation. It also indicated that matters had become clearer to the Complainant in the fullness of time and the Complainant "recognises returning to Hospital A has become less important to him". It was stated that the Complainant, therefore, withdrew his complaint from consideration of the investigation team.
On 6th December 2017, the Complainant wrote directly to the Respondent contradicting his union representative's correspondence. He stated that he did want to return to Hospital A. He confirmed that he had withdrawn from the investigation hearing as he had issues with the terms of reference and the documentation which had been provided to the investigation team. However, he stated that his complaint “will never be withdrawn”.
On 7th December 2017 the Respondent wrote to the Complainant to confirm that the terms of reference had been sent to him by letter dated 14th July 2017 in which he was advised of the deadline of 1.00pm on Friday 21st July 2017 should he wish to query any aspect of the terms of reference. He was also advised that if the Respondent did not hear from him prior to the deadline, it would then proceed to hand the matter to the investigation team to initiate the investigation. In their letter of the 7th December 2107 to the Complainant, the Respondent stated that “no communication, either verbal or written, was received from [the Complainant] advising of any concerns you may have had”.
In their letter of 7th December 2017, the Respondent went on to take issue with the Complainant’s assertion that not all documentation was furnished to the investigation team and assured the Complainant that all relevant documentation had been furnished. To support this assertion, the Respondent enclosed a copy of their letter to the Chairperson of the investigation team, detailing all the documents which were issued to assist them in their work.
Summary of Complainant’s Case:
The Complainant submits that his claim concerns treatment he has suffered as a result of making certain complaints to the Respondent from October 2014. It is the Complainant’s case that these disclosures were “disclosures” for the purposes of the Protected Disclosures Act 2014 and/or were relevant disclosures for the purposes of the Safety, Health and Welfare at Work Act 2005. It is the Complainant’s case that his treatment, by the Respondent since October 2014 amounts to penalisation for the purposes of the Protected Disclosures Act 2014 and/or the Safety, Health and Welfare at Work Act 2005.
The Complainant submits that the actions of the Respondent in transferring the Complainant from Hospital A to Hospital B in December 2014 were carried out in direct response to the Complainant having raised matters of concern to his employer. It is submitted that the forced transfer of the Complainant amounts to penalisation.
It is also submitted that the actions of the Respondent regarding the investigation of the complaints made by the Complainant amounted to penalisation.
The Complainant submits that it is necessary to ascertain the “date of the contravention” in respect of which a Complainant makes a claim. In the instant case, it is submitted that the ongoing failure and/or refusal of the Respondent to adequately deal with the Complainant’s complaints and/or return the Complainant to his original workplace gives rise to an ongoing contravention.
The Complainant submits that examples of this conduct on the part of the Respondent have occurred within the cognisable period of the within claim.
The Complainant submits that the decision of the High Court in HSE v McDermott  IEHC 331 makes clear that, where there is ongoing contravention of an employment statute, the matter can be properly brought before the WRC, notwithstanding the fact that the original contravention is outside the 6 month limitation period.
Findings and Conclusions:
The first matter I must decide is if I have jurisdiction to hear this complaint. In making my decision, I must take account of both the relevant legislation and the legal precedent in this area.
If jurisdiction is established, I will then consider the Respondent’s preliminary legal point in relation to alleged duplication. If jurisdiction is not established, my investigation will conclude.
The time limits for submitting claims to the Workplace Relations Commission are set out in Section 41 of the Workplace Relations Act 2015 which provides that:
“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 herein complaints were submitted to the Workplace Relations Commission on 14th November 2018. In accordance with Section 41 (6) of the Workplace Relations Act 2018, the cognisable period for the herein complaint is six months from the date of the referral of the complaint which gives a cognisable period from 15th May 2018 to 14th November 2018.
I note the Complainant’s assertion that the alleged contravention on which the herein complaints are grounded occurred when he was transferred from Hospital A to Hospital B in December 2014 after he raised matters of concern with the Respondent. I note that the Complainant further asserts that the actions of the Respondent with regard to the investigation of his complaint also amounted to an alleged contravention. It is the Complainant’s position that the alleged contraventions are ongoing and, therefore, that the herein complaints fall within the cognisable period as defined under Section 41 of the Workplace Relations Act, 2015.
I must now decide if the contraventions as alleged by the Complainant were ongoing during the cognisable period.
I accept that the Complainant has a grievance concerning the manner in which he was transferred from Hospital A to Hospital B and considers it to be an act of penalisation on the part of the Respondent.
I am of the view that, for the purposes of dealing with the preliminary points raised by the Respondent, I am not required to decide on the legitimacy of this grievance.
I am obliged, however, to test the Complainant’s assertion that the continuance of the transfer, and the manner in which his complaints were investigated by the Respondent, constitutes an ongoing contravention which brings him within the cognisable period of the herein complaint.
Regardless of the correctness or otherwise of the behaviour of the Respondent in transferring the Complainant when he raised a number of issues, I am of the view that it would not have been appropriate for the Respondent to have facilitated the Complainant’s return to work in Hospital A without first investigating the matters which led to his transfer given that the Complainant’s working relationship with a number of his colleagues appears to have been a source of stress for him.
In this regard, I find that the Respondent engaged in a comprehensive effort to address the issues raised by the Complainant, initially through a preliminary screening exercise, followed by a number of unsuccessful attempts at mediation, culminating in an independent investigation process which was instigated at the behest of the Complainant.
I find that the refusal of the Complainant to engage with the investigation process in December 2017, despite the Respondent’s attempts to allay his concerns, allied with his refusal to withdraw his complaint, has left the Respondent in an impossible situation.
I find that the Complainant’s actions in stymying the investigation means that the alleged contraventions upon which the herein complaint is based cannot be addressed.
I find, therefore, that Complainant has removed himself from the protections of the Acts under which he has referred his complaints and that the alleged contraventions are not ongoing.
Accordingly, I find that the herein complaints do not fall within the cognisable period as prescribed under Section 41 of the Workplace Relations Act, 2015.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Having considered the submissions of both parties, and the evidence adduced at the hearing of this complaint, and based on the findings set out above in relation to the preliminary issue of time limits, as raised by the Respondent, I find that the Complainant's complaints are out of time and, as a result, I have no jurisdiction to investigate the herein complaints.
Dated: 1st August 2019
Workplace Relations Commission Adjudication Officer: Marie Flynn
Time limits – out of time