ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00022781
A Clerical Officer
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
Date of Adjudication Hearing: 23/10/2019
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
This case relates to a claim made by an employee (the complainant) against her employer, a Hospital (the respondent), under Section 28 of the Safety, Health & Welfare at Work Act 2005. The claim form was lodged with the Workplace Relations Commission on 19th June 2019. It is the claimant's contention that she was penalised for making a complaint under the Act. Specifically, she states that this penalisation involved her being moved to a different department and mistreated in her role there.
Summary of Complainant’s Case:
The complainant states that further to her department moving to a new building in the hospital in 2012, there were a number of difficulties which arose. She stated that she made management aware of these issues and that as a result of this, she became subject to a much more hostile and aggressive attitude. Specifically, she alleged that it was said to her that if she couldn’t manage, she should look for a transfer. She further alleged that management stated that there were no issues or difficulties when either she or her colleagues were replaced by others and added that that this was very undermining.
She claimed that following her return from stress leave on 26th March 2019, she was transferred to a new role where she has been isolated and excluded. She said that she should not have been transferred from her position and added that another colleague who was also off on work related stress leave was allowed to return to her position in the same department, unlike her.
She claimed that while the role she is doing is a grade 3 clerical officer role, it should be reclassified as a grade 4 position given the complexity and level of responsibility involved.
Summary of Respondent’s Case:
The respondent’s representative stated at the outset that the complaints submitted by the Complainant date back to 2012 and highlighted the provisions of the Act which state inter alia that any alleged contravention must have occurred in the six month period prior to the complaint being made.
The respondent stated that while the move to the new building brought with it a number of difficulties, all of the issues were addressed as they arose. It was also added that this continues to be the case. It was also contended that the difficulties encountered by the complainant were at all times operational only and that every reasonable effort was made to resolve any such difficulties.
The respondent also stated that it did what any reasonable employer would be expected to do to ensure the safety and health of a member of staff. It was claimed that the transfer of the complainant was purely and only for that reason, given that she had been medically certified as suffering from stress and that she had ongoing complaints relating to the role for a period in excess of 6.5 years at the time of her transfer.
The respondent also stated that a causal connection must be established between the employee exercising their rights and the employer’s alleged subsequent penalisation actions, if any, in order for her claim to succeed.
Findings and Conclusions:
S 28 of the Safety Health and Welfare at Work Act, at Subsection 4 provides that the WRC:
' shall not entertain a complaint under this section unless it is presented to him or her within the period of 6 months beginning on the date of the contravention to which the complaint relates or such further period not exceeding 6 months as the rights commissioner considers reasonable'.
In light of this, and given that the complainant did not present any evidence to support an extension of this period, I must confine my investigation to any contravention that may have occurred during the six month period prior to the complaint being made, namely the period from 18th December 2018 to 19th June 2019.
It is clear from the complainant’s evidence that the alleged penalisation during the relevant period was her transfer from one section of the hospital to another. The respondent contends that this decision to transfer her arose following receipt of a report from the company doctor, issued as a result of the complainant being on stress leave.
It is also worth highlighting that as well as meeting both with the complainant on her return to work to informed her of the transfer and attending another engagement with her union representative three days later to explain the rationale behind the decision, a further meeting was held with a member of the management team just over two weeks later to agree working hours that suited her. Moreover, the email sent following this meeting states that these working hours could be changed at the complainant’s request.
While there was additional email correspondence from the complainant submitted to line management in the second half of April 2019 outlining concerns she had with the work performance of other colleagues and members of management in her new department, I consider, having reviewed these emails, that there is no evidence of any penalisation contained therein and that the issues raised had little to do with the claimant’s role but consisted largely of complaints about how other staff members worked, which were matters for management to address. While further allegations were subsequently made on 16th June surrounding bullying in both departments where she worked, I am satisfied, having reviewed the report, that none of these complaints either fell under the definition of bullying under the hospital’s Dignity at Work Policy or showed any evidence of penalisation of the complainant. Rather they comprised of concerns and complaints about ways of working within the hospital.
In conclusion, I am satisfied that the reason behind the decision to transfer the complainant to a different department arose from the work related stress in her previous role which the company doctor highlighted in his report and that she was not penalised for complaints she had made prior to this. While I recognise that the hospital could have chosen to retain the complainant in her previous role and attempted to further address the underlying issues that she believed caused her stress, I believe that such efforts had been already made, namely that the department was leaned twice, and was surveyed as well as monitored as highlighted by the complainant herself, even if such efforts were ultimately not to her satisfaction. I also believe, as highlighted above, that adequate support was provided to her in the period post transfer, including flexibility on her working hours and the provision of a detailed work list plan, clarifying her daily duties. Moreover, I also consider that the nature of the complaints she made following the transfer fail to suggest that she was subject to any penalisation afterwards.
Accordingly, I consider that this complaint is not well- founded.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I find that this complaint is not well founded.
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill