ADJUDICATION OFFICER RECOMMENDATION
An IT Systems Support Officer
Complaint/Dispute Reference No.
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Between February 6th and June 10th 2019, this complainant submitted six complaints to the WRC under various pieces of legislation. In accordance with Section 41 of the Workplace Relations Act, 2015, Section 79 of the Employment Equality Acts 1998 – 2015 and Section 13 of the Industrial Relations Acts 1969, these complaints and disputes were assigned to me by the Director General. From a scheduling perspective, the complainant agreed that all six complaints could be dealt with together, but she requested that her complaints under the Employment Equality Acts be considered first. On August 14th 2019, I heard submissions from the complainant and the respondent in relation to the complaints of discrimination. The grievances under the Industrial Relations Act were considered on September 23rd 2019.
On the forms she submitted to the WRC, the complainant did not indicate that she would be represented at the hearing of her complaints. On one form, she said that it is very difficult for her to write about her complaint without getting distracted. On another, she referred to the fact that in 2015, she was absent from work due to stress and in 2019, she was absent again because of stress. She said that she has a difficulty hearing, particularly when people talk over her.
Considering these challenges, and, because of the complexity and number of complaints, in advance of the first hearing, I instructed the case officer to write to the complainant to encourage her to bring someone with her who has experience of attending hearings at the WRC, or who is familiar with industrial relations and employment law. In his letter, the case officer explained to the complainant that the hearings will involve her being cross-examined by the IBEC executive representing the hospital, and she will have the opportunity to cross-examine their witnesses. The complainant was advised that she could be accompanied by a relative or a friend, or both; however, to help the process to run as smoothly as possible, and to give her the best chance to make her case effectively, she was advised to be represented by a trade union official, a solicitor or someone from her local Citizens Information Centre.
On August 14th 2019, the complainant attended the hearing without representation. At the opening of proceedings, I asked her to re-consider her decision, but she said that she didn’t want to be represented because it would take too long to explain her case to someone. I am satisfied that, while she could have been represented at the hearing, the complainant chose not to be. I regret her decision in this regard because she was disorganised and there was no chronological order in the way she presented her complaints.
September 23rd 2019 was the second of two days of hearings at which I enquired into the six complaints submitted by the complainant. The hospital’s Human Resources Manager and the complainant’s line manager, who is the Manager of the Clinical Activity Reporting Unit attended and gave evidence. They were represented by Ms Aisling McDevitt of IBEC. Ms Sinéad O’Connor from the WRC Secretariat attended the hearing to ensure that the proceedings were manageable for the complainant.
The subject of this recommendation is the complainant’s fourth complaint, submitted on April 26th 2019. At the hearing, the complainant informed me that she was absent due to illness from the middle of January 2019 and, on May 20th, she was compulsorily retired because of incapacity. She is entitled to an early pension on the grounds of ill health.
The complainant commenced employment in the hospital in March 2003. By the time of her retirement in May 2019, she was in a Grade V role of “Data Informatics and Reporting Officer” and she reported to the Manager of the Clinical Activity Reporting Unit (“CARU”). In her job description, her role is described as “report-writing, data extraction and statistical compiling throughout the hospital to inform business intelligence as required by the Clinical Activity Reporting Unit”. The complainant said that her job involved the maintenance of data quality, data governance and checking, the extraction of data for reports, staff training, answering telephone queries, drawing up organisation charts and attendance at project meetings and teleconferences. At the hearing, the CARU Manager said that the complainant had considerable expertise in IT systems and data management.
In 2014, the complainant was working in the Patient Services Department and, around the time of an IT systems upgrade, she said had several grievances related to her job. She said these grievances involved her requesting “tools to do the job that I had been assigned” and “requests for processes as to how things were done.” Following a meeting with her Department Head and the Human Resources Manager, she got a letter confirming that “improved work flows would be worked on,” but, she said that this didn’t happen.
In August 2015, the complainant said that she was sent home from work. She said that she remained absent until January 2016 because of workplace stress. An advertisement was posted for a temporary Systems Officer to cover her role during her absence. The person who got the temporary job was the brother of her line manager at the time and the complainant alleged that he got the job as a result of canvassing. When she returned to work, the complainant was concerned at the access he had been given to the e-mail account for the job and to various IT systems.
The complainant said that between 2014 and 2017, her post was “split and splintered by the introduction of various new posts.” She said that one job was to communicate with and to represent senior management and this was assigned to a person at a higher grade than her. The second job was to improve communications about processes and this was given to a less senior manager. The complainant said that there was no improvement in her work processes because, in March 2016, her manager told her not to contact the person in the process role. The complainant said that she submitted a formal grievance about this on three occasions, but she got no response.
In April 2016, the complainant was moved to report to the manager of the Clinical Activity Unit, while still carrying out some work for the Patient Services Unit.
In February 2017, the complainant said that, following a meeting between two departments, her former line manager, the Head of Patient Services, made a complaint about her. She made a counter-claim about her manager and about her working conditions, which, she claimed were very difficult. An investigation was carried out by an independent consultant, but the complainant said that her own complaints were not considered. She believes that the manager who complained about her counselled two witnesses about the evidence they gave to the investigator. In her submission she said, “the Investigation Findings were that I was found to be of a bullying behaviour, albeit unintentional.” The complainant appealed against this outcome; however, the hospital did not accept her appeal because it was submitted too late. A disciplinary investigation arising from the findings of this report resulted in the complainant being issued with a written warning on January 18th 2018.
At the hearing of her grievances on September 23rd 2019, the complainant said that she did not consent to me reading the report of the independent consultant which was submitted in evidence by the hospital and I returned the document to Ms McDevitt.
In July 2018, the complainant said that she was listening to the radio at work and she heard a feature about the new General Data Protection Regulations. She said that she thought that using the Regulations might be one way of getting her issues resolved. On one day, she sent 33 e-mails to the Human Resources Manager, requesting specific information and a designated reference number for each item, to assist her “to raise the issues with the Data Protection Office in relation to the fair processing of data about me.” In August, the complainant sent a 50-page submission to a consultant gynaecologist / obstetrician at the hospital by way of an appeal against the disciplinary warning of January 2018. These communications and what were referred to as “the excessive number of complaints / grievances / correspondence you have been sending to senior management since January 2018” resulted in a second disciplinary investigation. On October 18th 2018, the complainant was issued with a final written warning. Her appeal against this warning was rejected.
On January 3rd 2019, the complainant refused to attend a meeting with her manager unless she had a witness present. The purpose of the meeting was to discuss an operational matter. On January 14th, she was suspended, pending an investigation into her failure to carry out a reasonable instruction. On February 6th 2019, in her complaint form in relation to this complaint, she said, “I am currently on sick leave for stress.” On August 14th, at the WRC, the complainant said that she had suffered an injury at work and she consulted a psychiatrist. At some point during her absence, she was examined by the hospital’s occupational health physician. Following a discussion by telephone with her consultant, the occupational health physician wrote a report in which he concluded that that the complainant is permanently incapable of carrying out her duties at work and he recommended that she would be permitted to retire on medical grounds.
Summary of Complainant’s Case:
This dispute relates to the investigation into the complainant’s behaviour that commenced in February 2017. The complainant claims that she suffered anxiety and stress because of “misinformation being recorded and left uncorrected.” The complainant said that she thinks that this grievance should be considered as a breach of the General Data Protection Regulations. She made a complaint to the Data Protection Commissioner, but she was advised to have the matter investigated by her employer first. She has decided instead to request an investigation by an adjudicator.
In relation to the information gathered in the course of the independent consultant’s investigation, the complainant has the following concerns:
§ Before the investigation commenced, her employer failed to carry out a data impact assessment.
§ Breaches of her personal data occurred.
§ Data used in the report was not anonymised or encrypted and a virtual private network was not set up.
§ The terms of reference for the investigation were not precise or clear.
§ Her employer’s refusal to correct the data resulted in unsafe working conditions for the complainant, which, she claims, was a breach of the Safety, Health and Welfare at Work Act 2005. The complainant referred to Michael Collins v FBD Insurance  IEHC 137 to support her contention in this respect.
§ Her employer did not provide the participants and witnesses in the investigation with separate e-mail accounts.
§ The data sent to the investigator by e-mail was sent using a work e-mail address which, the complainant said, is now an e-mail account used in the department of the person who made the complaint about her.
§ The complainant said that she was not given any assurance in the terms of reference as to how the controller of the data used in the investigation adopted internal policies and implemented measures that meet the principles of data protection. She also said that she does not know who the controller is of the data used in the investigation.
In my role as the adjudicator of this matter, the complainant said that she would like me to “check if the employer was careless of what rights I have in the terms of reference of the investigation and due to the disregard for my health and safety by disregarding basic security and basic data protection rights.”
Summary of Respondent’s Case:
The outcome of the investigation into the complainant’s conduct was confirmed in the report of the independent consultant in October 2017. The complainant took no action and did not submit an appeal until seven months later. During the summer of 2018, the complainant submitted several grievances in relation to statements made as part of the 2017 investigation. She also submitted complaints to the HR Manager regarding the investigation, internal policies and operational issues and she made six appeals to the Secretary General Manager of the Hospital involving processes that were already finalised.
The hospital’s position is that a complaint about a breach of data or issues related to confidentiality, data security or privacy is not a trade dispute and must be investigated under the provisions of the Data Protection Acts.
Findings and Conclusions:
In her evidence, the complainant said that in July 2018, when she was listening to the radio at work, she heard a feature about the General Data Protection Regulations and she thought that she may be able to resolve her difficulties with the 2017 report by recourse to that legislation. I am concerned that a report that was finalised in October 2017, should, months later, be the subject of an appeal prompted by the serendipity of listening to a radio programme.
Section 13 of the Industrial Relations Act 1969, under which this complaint has been submitted, requires me to investigate a trade dispute between the complainant and her former employer. The Industrial Relations Act 1946 defines a “trade dispute” as “any dispute or difference between employers and workers or between workers and workers connected with the employment or non-employment, or the terms of the employment, or with the conditions of employment, of any person.”
It seems to me that the Data Protection Acts 1988 and 2003 are specifically enacted to deal with data security and privacy issues and that these were not envisaged as “trade disputes” connected with terms and conditions of employment as comprehended by the Industrial Relations Acts. The precedent referred to by the complainant, that of Michael Collins v FBD Insurance, resulted from a finding in Mr Collins’s favour by the Data Protection Commissioner.
Having considered the complainant’s concerns about the data security aspects of the 2017 report, I find it strange that, as an IT professional, she did not raise these concerns when the terms of reference for the investigation were presented to her in 2017. It appears that the referral of this matter as a trade dispute in April 2019 is at the end of a long sequence of failed attempts to challenge the report’s findings. I find this latest approach to be disingenuous and wasteful of the resources of the WRC.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I have concluded that the subject of this dispute is not appropriate for adjudication under the Industrial Relations Act and I recommend that no further action is taken in relation to this matter.
Dated: September 30th 2019
Workplace Relations Commission Adjudication Officer:
Data protection, data security