ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00024043
Private care home
Edmond Smith Independent Workers Union
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 23/01/2020
Workplace Relations Commission Adjudication Officer: Gene Mealy
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 13 of the Industrial Relations Acts 1969] 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).
The claimant made a complaint to the workplace relations commission under section 13 of the industrial relation act 1969
The claimant works for the respondent as a carer.
She works two (2) nights per week with a duty nurse who is a smoker.
The duty nurse in question smokes outside the door of the premises, but on going back inside the building, the claimant can smell the smoke from her clothing and, on inhaling same, feels out of breath and has chest problems.
The claimant claims that she made a complaint to the respondent regarding the smoking issue and the effects on her health.
Following the complaint, the issue remains unresolved.
The respondent rejects the claim that the claimant is the victim of passive smoking on the campus in which she is employed. They submit that the nurse in question joined the respondent company in October 2017 and there were no difficulties until late 2018 when the claimant was spoken too by the nurse in question regarding an issue. The respondent submits that they have tried to resolve the issue but to no avail.
They further submit that they comply with the law and have a derogation under the terms of the No Smoking Act.
Summary of Complainant’s Case:
The claimant has worked for the respondent company since 2006.
She works as a carer under duress as a result of a problem with health and safety while working for the respondent. She submits that her health is being compromised and that the respondent has failed to deal with her complaint.
The claimant submits that she works two nights per week with a duty nurse who is a smoker. The nurse smokes outside the building and, on her return, the claimant submits that she can smell smoke from her clothing and on inhaling same feels out of breath and experiences chest problems.
As a result she requested a swap from her existing roster.
In January 2019 the claimant made a written complaint. The respondent requested the claimant to see their doctor. Thereafter the full doctors report was never communicated to the claimant.
The claimant, through her representative, submits that she was a caring and diligent employee whose health has now been compromised.
The claimant also submits that another nurse employed by the respondent smokes inside the facility in the toilet.
The claimant submits that both nurses are putting the health of the claimant at risk by their actions and are subjecting her to passive smoking thereby causing her health problems as well as breaching the safety protocols, whereby the policy of having two people on duty inside the premises is being breached.
The claimant submits that the issue can only be resolved by a change of roster and or a complete ban on smoking in the entire campus.
Summary of Respondent’s Case:
The respondent submits that the claimant joined the respondent organisation in October 2006 and from 2006 to late 2018 there were no problems.
The nurse, who is central to the issue, commenced work there in late 2018.
In December 2018 the nurse called the claimant to task (raised issues).
The claimant went to her doctor suffering from a chest infection, following which the doctor issued a medical certificate in which she referred to a smoky atmosphere in circumstances where she had never visited the claimants place of employment.
The issue remained unresolved and on 24th February 2019 the claimant was requested to put her complaints in writing which she did on 24th February 2019.
In the letter of complaint the claimant stated that she also worked part-time with a cleaning company and concluded by stating that “all she needed was a swap”.
The respondent submits that a number of exchanges took place between the claimant and the nurse involved in the smoking claim. They further state that the nurse was subjected to the claimant standing over her and “shouting at her”.
On 1st March 2019 the nurse requested the Sister in charge to speak to the claimant regarding her work and in particular to make it clear that there was to be “no sleeping while on duty”.
The conversation took place at 11.40pm and at 5am the following morning the claimant complained of panic attacks. She was told to rest and was later driven home.
The respondent spoke to the remaining staff to seek agreement on a roster swap but to no avail.
On 25th March 2019 the claimant was referred to a medical practice by the respondent. He declared that the claimant was fit for work, but he did refer in his letter to making the campus a smoke free zone.
The respondents position is that they comply with the law and have a derogation under the terms of the No Smoking Act.
The respondent rejects the claim that a second nurse employed by the respondent smokes inside the facility as there are smoke alarms in the toilet area.
The respondent submits that they have made every effort to arrange a change of roster and cannot do any more.
They submit that the claimant works 1.75 days per week at the facility and, by her own admission, has other work elsewhere.
The issue, they submit, is interpersonal in nature.
Findings and Conclusions:
I have considered the submission of both the claimant and the respondent.
I have considered the medical certificate submitted on behalf of the claimant and the medical evidence which was submitted following an examination of the claimant by a medical practitioner appointed by the respondent.
I believe it is appropriate to have the issue of passive smoking and its effects or otherwise on the claimant investigated by an agreed third party qualified to do so.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I recommend the appointment of an agreed qualified third party to investigate the effects of passive smoking or otherwise on the claimant.
The Terms of Reference of such an investigation should be agreed by both parties before the investigation.
I further recommend that this investigation should be completed, and findings issued within two (2) months from the date of this recommendation
Dated: 30th June 2020
Workplace Relations Commission Adjudication Officer: Gene Mealy