Complainant

Respondent

Parties

Adelina Soit

St. Vincent’s University Hospital

Representatives

In person 

Mark Comerford IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00055468-001

09/03/2023

The Complainant has been employed by the Respondent as a Clerical Officer Grade 3 since 20th March 2007. At the time of lodging this complaint the Complainant was still employed by the Respondent.

This complaint was received by the Workplace Relations Commission on 9th March 2023.

Dual Claims.

·       The Complainant has previously taken a case under the Employment Equality Act (ADJ- 00026823), lodged with the WRC on 20 February 2020, on the same set of facts as the claim taken under the most recent claim under the Employment Equality Act.

·       From the submission set out on behalf of the Complainant in the WRC Claim forms shown it is clear that her allegations with regard to the claim under both acts arise from the same set of facts; in point of fact the precise wording is duplicated in both claims.

·       The Adjudication Officer is asked to consider the decision in Henderson v Henderson (1843) 3 Hare 100 in which the rule developed which prevented duplication of proceedings and which provided there should be finality to litigation (subject to appeal) and that a party should not be twice vexed in the same manner.

·       The same principle was further developed in Cunningham v Intel Ireland Limited [2013] IEHC207 when Hedigan J noted that the complainant had “attempted to draw an artificial distinction between her Equality Tribunal complaint and her Personal Injury proceedings” and ruled in favour of Intel again observing that as a general rule of law “Thus all matters and issues arising from the same set of circumstances must be litigated in the one set of proceedings save for special circumstances “.

·       In Parsons v Iarnrod Eireann [1997] 2 I.R. 523 the High Court heard that the complainant had been dismissed from his employment by the defendant and brought a claim for unfair dismissal under the Unfair Dismissals Acts. Subsequently he also issued proceedings in the High Court seeking a number of reliefs and in particular damages for “wrongful and/or unfair dismissal”. Having considered the facts of the case before it and the relevant case law the Tribunal determined that both cases were inextricably interlinked with bullying being at the centre of both actions. The Tribunal does not consider that there are “special circumstances” as referred to in the Cunningham case that would permit the High Court action and the Unfair Dismissals action to proceed simultaneously. Indeed, the Tribunal took the view that the complainant was drawing an “artificial distinction” between the two actions. Neither does the Tribunal accept that the facts of the High Court case are “independent” of the Unfair Dismissal claim where a “claim might be pursued at the Tribunal”.

·       It would appear to the Respondent that both cases are inextricably linked with the same facts being at the centre of both actions in the instant case. It is the Respondents view that there are no special circumstances that could permit this case to proceed on the basis that it is linked to the same set of facts as those already adjudicated on in both the WRC and the Labour Court.

Time Limits.

·       Section 77 subsection 5 of the Employment Equality Act states that:

Subject to subsection (6), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.

·       (6) If on an application made by the complainant the Director, the Labour Court or, as the case may be, the Circuit Court is satisfied that exceptional circumstances prevented the complainant's case (other than a claim not to be receiving remuneration in accordance with an equal remuneration term) being referred within the time limit in subsection (5)—

·       The Respondent submits that the Cognisable period for this claim is from 10 September 2022 through to lodging of the claim with the WRC on 9 March 2023.

·       No identified acts of victimisation or penalisation have been noted by the Complainant on either her claim form or her subsequent submissions within this timeframe.

Scope of Claim

·       The Complainant lodged her claim with the WRC on 9 March 2023.

·       The Complainant in her submissions sent to the WRC references actions that occurred from April 2023 onwards.

·       These details occurred after the claim was lodged and are therefore clearly outside the scope of the claim and should not be admissible.

The following is the complaint presented by Ms Soit, in her own words.

In March 2011 I got a position Acting Supervisor in the HSSD Department.

In May 2011 another permanent position came up. My manager chose to advertise this position exactly on the two weeks' time when I was on holiday. My colleagues, from the floor warned me, I sent my application to them and one of them handed it to HR. I went for the interview, and I have been placed in 3rd place on a panel for 6 months.

In August 2011 another permanent position came up. The person who was in front of me on the panel had already gone to another place and I went into my manager, office to express my interest in this position. She agrees and lets me understand that she will get all the paperwork done on this matter.

First week of October 2011, I received a letter from HR letting me know that my acting position come to an end at 30.09.2011. I was OK with this, happy to get back on the floor like technician. My manager has asked me to continue as Acting Supervisor and I agree to do so for a few more days giving her the chance to clarify the situation. Later, my manager handed me another letter which offered me 1 month extension like Acting Supervisor which was dated 22 of September.  I refused to accept that; it was visible that she was just trying to extend the time to the point where the life panel expired. She didn’t make any requests to get the job approved until 5 of October as you can see HR emails. She tried to explain to me that it takes time to get the position approved but was hard to believe as the previous permanent position was already approved and advertised 2 weeks since it became vacant and was already more than 7 weeks in my case. Following this I asked to be taken off from the roster as supervisor in charge, until the situation clarifies. She refused me, and she left for her holiday with no explanation. Next, I tried to see her superior (Margaret Boland), but she didn't get time to listen to me. At the end, at 10 of October I made a Complaint to HR looking to talk to someone. In this letter I wrote that I feel frustrated, used and discriminated against. In the same day, I believe, HR rang me to offer me the permanent position and few days later I got the contract. When my manager returns from her holiday, I asked if I should bring my certification of study from abroad to be put on my files, but she said that is not necessary. All the other supervisors were asked and sponsored to complete the course in DIT Tallaght, except me, but I assumed that it was because they did recognize my qualification from abroad.

4 years later, in 2015, I asked to be nominated to do an Endoscopy Training Programme in DIT Tallaght, as was a sponsored place from HSE, so was free of cost for the hospital, and in the first stage my manager agree. I booked my holidays at the beginning of the year so I could attend the course. When I returned from my holiday, I found out that I was not nominated for the course.

In 2016 I applied for an Accredited Leadership & Management Development Programme which was organized inside, and only for the hospital staff in collaboration with UCD. Again, at the beginning my manager agreed, but at the end I was refused.

Following this refuse I wrote an e-mail to HR Employee Relation Division. The answer which came from Learning and Development Division was disappointing but I accepted and tried to move on. Next morning, I believe it was 07.08.2016, when I went into my manager's office to ask something, I was shocked to find her together with one of my colleagues discussing over my email to HR which was open on the screen of computer. She didn't make any attempt to close it like it was the most normal thing in the world to show it to everybody. It was terrible for me at that moment because I mentioned my colleague's name in the e-mail to HR. I mentioned her, as she was one of the people who benefited from hospital support for doing IT Tallaght.

Next night I wrote another e-mail to HR Following this e-mail I had a meeting with HR Employee Relation, followed by a few more e-mails. Following the meeting with HR Relations I was referred to Occupational Health, where I attended all the appointments. From that point I started to apply for different jobs for each I considered myself qualified and well able to carry on the duties. During the 3 years and a half I did apply for 18 jobs from each in 5 cases my CV was deleted from application in Web Recruitment System. It always happens where I could be a competitive candidate for the position. At the end I was invited to the interview for Clerical Officer position HR 16E320. The interview was on 09.01.2017. After this interview I have not heard anything from HR until April 6th, 2017, in circumstances they have misinterpreted.

Something happen in my family, and I had to hurry to my mother in Romania. The only message I sent to work was that it was an emergency and I’ll explain when I’m back. From co-workers I found that somebody was saying that I will not be back. In this time HR sent me an e-mail to let me know that after the interview I had been placed on a panel. During my 2 weeks in Romania I had an accident, and I broke my wrist. When I returned home, I went to see my GP for medical cert, and I just found out that somebody rang them to make them aware not to release any medical cert unless I’m not going personal to get it. In 2 weeks', time, after I had another interview for grade IV Administrative, HR rang to offer me the position of Clerical Officer in Pathology, where I started on 31.07.2017.

My first working day in Pathology was the worst experience possible for somebody just arriving in the department. I was in the office a few minutes before 8 and waiting there for my supervisor to come in. When she arrived, she was quite surprised to see me there and she showed me out in the tearoom saying that she needed time to tidy the office. As she didn’t return in the next 40 min, I decided to go back, and this time I was lucky to be let in. A folder with Policies and Procedures was handed to me and I started to read. It took me probable 2 hrs to finish this and I was hoping to start proper training. But the next few days I was just asked to find some forms in a cabinet while the main duty in that office was to input data in Apex System.

Compared with the other staff who started in Microbiology after me, I was the only one kept for a week just to find some forms in a cabinet, and my account for Apex was set only after I asked the line manager grade VI to be done.

The intention to hurt me is very visible by the fact that my employer changed my pension scheme without any reason and without informing me in any way, even though the pension is part of the employment contract.

 I try my best to integrate in the new place and I love to say that I succeed even that was visible at the beginning that I was moved like disciplinary than after an interview, from the very first day. Despite having a great working relation with the scientists and doctors, in the office it was tension with my direct supervisor. That start sometimes in September, when she shows me some non-compliant work that she claimed I did. At first glance I noticed that those bookings were made on days when I was on holiday, so it was impossible for me to make them. She stepped back saying she did not know how it was possible to happen. Since that episode, every single non-compliant work from my name I investigate and, on many occasions, I found that some of them were the result of manipulating APEX (the programme for database in Pathology) than my mistakes. I informed about this to the next level in Administration Office and this type of incidents became rare. I start to be very carefully for different traps which I have to avoid.

At that time, I was employed with my employer for 10 years, and surprisingly they ask again for a garda clearance certificate, even that I provided one at the beginning of my employment. This whole situation made me feel hunted and fear started to settle in my mind.

My job hunting continues, and I apply for Grade IV Officer in Statistics HR181043.Few minutes after I finished my application my CV disappear again from application. In the same day I made an application for Clerical Officer HR 18E027, just to prove myself that my CV disappear only from the jobs where I will have a proper chance for promotion. I was right as my CV was saved on this one (it is the same position as the one I’m on now). I rang HR and they asked me to send my CV through e-mail, but this was never saved on my application. They invited me to at the end for interview in a day when I was traveling back to Ireland. I asked to be scheduled any time after 1 pm, but they refused. It was told that they do not do interviews late, and then I received an e-mail that stated “I withdraw myself from consideration” for this job. They did the same when I applied for Grade IV Creditors Officer 18E103. I was invited to the interview the week when I was on holiday, no other option was available, and they sent me an e-mail that “I withdrew myself from the interest for this job”.

Another incident occurred when I applied for Grade IV Nursing Administration HR18E072. I was invited for an interview and when I reached the HR reception, I was told that the interview for this position took place some time ago. I showed my e-mail to the receptionist and 10 min. later I was invited into a room where the panel people looked more embarrassed than myself.

In September 2018 HSSD manager position came up and I apply. Again, my CV disappear from application and HR rang me 2 days after another candidate was called, just 4 days in front of interview date, to tell me to send a CV and that “they should show me how to make an application if I want to compete for this type of jobs.” I was not invited for an interview. This time my frustration burst again: I asked again to discuss with somebody from HR. They said I was not invited to the interview as I did not have The IT Tallaght Level 7 Course required for HSSD Managers and Supervisors forgetting that I was HSSD Supervisor for the previous 6 years, and they refuse to give me the chance to do any course. They didn’t take into account my qualification certificate from abroad either. I have e Certification in Medical Equipment one level 5, one level 6, I have bachelor's degree level 8 in Economics and 2 different courses in Decontamination made in Ireland and England and I already had 30 years' work experience in this field from which 10 with them. In person Specification it was stated that an Equivalent Qualification will suffice but it was not taken into account.

In this meeting with HR, I raised a few different issues, they investigated them. The contradiction is visible in the campaign for Grade iv Officer Statistic HR 18E103.

The last episode of my attempt to go back to the level I was previously, in my career with my employer took place in September 2019. When I was invited for an interview for HIPE Clinical Coder IV Ref 19E283.After this invitation I sent an e-mail for confirming my attendance, Friday 20 of September somebody from HR rang me to see if I attend the interview as they have no confirmation. I concluded that my -e-mail was either deleted, blocked or spam, there is no other explanation. My interview was at 11 am, and I performed very well. At 1.30pm  I met another candidate who during the interview asked when we are to expect the results and it was told by Friday the same week 27 of September. The surprise came when I checked my e-mail at 15.40 the same day. I found the e-mail which let me know that I was not successful. The hurry to rule me out of the competition made me ask for feedback as I believed I did a very good interview. They organize that that for me but refuse to handle me a copy of interview questions. During the feedback, they explain to me that in interview were evaluated 5 competencies for each of them they asked 2 questions and I fail the interview because I didn’t give an example on Adapting to Change Competency. I mention that it was only one question on this topic which didn’t require an example. During feedback they pretend that they asked, “in your current role, can you give us an example of change initiative and how you dealt with it?”. This question was asked in the previous interview which I had with the same department. In that stage I decided that enough is enough and I sent them a note that I intend to lodge a Complaint to Workplace Relation Commission, but that I’m open to discuss.

I lodge a complaint to the Workplace Relation Commission hoping that this process will be a discreet one and I could prove that something is wrong with the way I was treated. I was sorely mistaken. The news that I sued the hospital because “they didn't give me the job I wanted” reached not only all the corridors of the hospital but also outside. I was surprised when a friend of mine from my hometown in Romania knew this.

The victimization continues throughout the 3 years that the trial in WRC and Labour Court lasted. During all this time I found more about the development of my case from the corridors of the hospital than from official sources as communication was only unilateral between my employer and WRC/Labour Court. I was treated like I was not being part in this dispute.

 In parallel, at the workplace, the psychological war intensified. On 30.06.2022, it was brought to my attention “a non-conformance work” which my manager said I did and asked me to sign a form as I need retraining. I check, it was not my mistake. I told them that if they believe I need to be retrained I will do it, but I don’t take responsibility for something which I didn’t do.

A few days later another incident happened, I discovered that some of the forms which I was booking myself were double-labelled, and I did identify the intentions to set another” mistake” in my name. I felt that the world was breaking into pieces. I told my manager and went home. I was feeling sick, and my heart reached 150 pulsations. I rang the GP and after she consulted me, she said that she suspects I already have a cardiac event and refer me to AE in Beaumont Hospital. I attend AE, on the same day.

After having investigations in Beaumont, I was allowed to go home but no results of my blood tests and radiography returned to my GP, and I didn’t hear anything myself from them.

This situation raised many question marks. I was out sick with tachycardia for 3 weeks; I ordered myself a smart watch with heart monitoring and came back to work after 3 weeks.

On the week starting 22 of August, they let me in the office only with another colleague, a new one, not fully trained. The previous week, we were 4 of us in the same office. My manager asked me to check something, and she insisted on as many like 5 e-mails. I replied asking her for more time as I was very busy, and they didn’t give anybody to help me. From another point of view anyone else could do that checking.

After this situation, I was called to the office. Following this discussion, my stress level skyrocketed, and I ran out of the office in a panic attack with my vision blurred to the point where I could no longer see anything. A scientist led me to the A/E department, where I was waiting @ 4 hours, and when my vision restores to the level, I could safely walk, I went home. I return to work 2 days later.

At the Labour Court hearing on 09.08.2022, my employer never gave me any notice about the witness’s name, nor sent me any extra documents which they intended to use. They show up in the Courtroom with a disproportionate number in attendance, some of them I still don’t know who they are and in what capacity they were in the room. The hearing started and the chairman intends to proceed until I rise the issue. I brought a Court stenographer at my own expense. She remains in the Court after I left, and when she sent me the transcript, I realized that she included in things that were never said during the hearing.

They used lies, intimidation, influence peddling, and pressure, and obtained an unfair and illegal decision. This decision combined with the prolonged stress generated in this process threw me into a deep depression. Since the end of November 2022, I have been struggling with post-traumatic stress and the heart problems it created.

Background.

·       On 20 February 2020 the Complainant lodged a claim with the WRC as noted above. events occurring prior to this claim have been heard by both the WRC and the Labour court.

·       On 30 June 2022 a Non-Conformance was brought to the attention of the Complainant. This Non-conformance arose as a result of results for an incorrect patient result being sent to a nursing home. The Nursing home brought this to the attention of the laboratory, in which the Complainant was working at the time.

·       On receipt of this notification the Senior Medical Scientist raised a non-conformance and documented this as part of the quality management system in place. The Administration Team Manager followed up on the non-conformance raised.

·       The Complainant had rebooked the sample correctly after this non-conformance and as a result the Complainants name was linked to the sample and her name was attached to the audit trail.

·       The Administration Team Manager brought this issue to the Complainants attention, explained the error, and asked The Complainant to sign a re-training form to close out the Non-Conformance. Laboratory management determined, in light of the anomalies identified that it was not appropriate action to link the Complainant to this error. Laboratory management took preventative action by making all staff in the area aware of the error so that they can look out for errors like this going forward.

·       On 23 August a second incident occurred when “health link” a service that delivers lab results to General practitioners and other healthcare professionals returned a “failed message”. Failed messages occur when details may have been omitted from the initial upload to the system. The Complainant was asked to check why the failed message was returned. When a failed message is returned it is standard practice that any member of the administration team on duty in the relevant laboratory can be asked to check on a failed message. The Complainant refused to investigate this failed message when asked to do so.

·       The Respondent was never notified of any incident relating to any issue with management at this time, no Grievance was raised, and no record of any issue exists.

·       The Complainant then went on sick leave in November 2022 and remained absent until the date the WRC claim was lodged.

·       On 1 January 2023 the Complainant was sent to Occupational health on January 1st. The respondent received a report from this visit stating that the Complainant was absent due to symptomatic medical condition, attending GP and other supports for appropriate management. Activities of daily living restricted. The report also confirmed she was unfit for Work at present.

·       The Complainant lodged her claim with the WRC on 9 March 2023 having not returned from sick leave.

Respondent Position.

74.—(1) In this Part, unless the context otherwise requires:

“the complainant” has the meaning given by section 77 (4);

“equality mediation officer” and “equality officer” shall be construed in accordance with subsections (3) and (4) of section 75;

“the Equal Pay Directive” means Council Directive No. 75/117/EEC on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women.

“the Equal Treatment Directive” means Council Directive No. 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions.

“the respondent” has the meaning given by section 77 (4);

“victimisation” shall be construed in accordance with subsection (2).

(2) For the purposes of this Part, victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith—

(a) sought redress under this Act or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment),

(b) opposed by lawful means an act which is unlawful under this Act, or which was unlawful under any such repealed enactment,

(c) given evidence in any criminal or other proceedings under this Act or any such repealed enactment, or

(d) given notice of an intention to do anything within paragraphs (a) to (c).

·       In order for an employee to succeed in a victimisation claim the employee must prove that they were penalised by the Respondent and that the penalisation was solely or mainly because he/she had pursued a claim under the legislation.

·       The incidents outlined in the Complainant’s complaint form do not amount to penalisation. The Complainant suffered no detriment in regard to her employment. Penalisation is a serious offence under the Employment Equality Acts 1998 – 2015 and in order to prove penalisation it is necessary for the Complainant to prove that she suffered a serious detriment.

·       The Complainant has offered no evidence to support her case that she was victimised as a result of taking a case against her Employer. There is no evidence to suggest that she suffered any penalty arising from her original claim or appeal. The Complainant was not threatened with alternative working arrangements or with lesser conditions arising from her complaint, as alleged, rather she availed of certified sick leave and was treated in line with the Respondents absence policy.

·       The actions of the Respondent do not support the Complainant’s allegations of victimisation or penalisation.

·       It is the position of the Respondent that at no time was the Complainant victimised or penalised within the meaning of the Acts for taking her claim against the Respondent. Within the Cognisable period of the claim the Complainant was working and did not notify the respondent of any issues or concerns, and subsequently went on sick leave on 10 November 2022 and has not returned to work.

·       The Respondent further submits that an occupational health review was carried out and the subsequent report made no reference to any form of victimisation relating to the Complainants WRC hearing or otherwise, and indeed confirmed that she was suffering from an ongoing medical condition which she was receiving treatment for.

·       The Respondent further submits that the burden of proof lies with the Complainant and that a prima facia case has not been established.

Conclusion

·       On the basis of the forgoing, and oral evidence which will be presented at the hearing of this matter, it is the Respondents’ position that no breaches of the above legislation have occurred.

·       The onus of proof is on the Complainant to show that she was victimised. No evidence to date has been produced to substantiate this allegation. Until such proof is forthcoming the Adjudication Officer must reject this claim. As the Complainant has not established a prima facie case of victimisation, the Respondent requests that the Adjudication Officer reject this Complainant’s allegations under the Employment Equality Acts 1998 and 2015.

Preliminary Issues.

Dual Claims.

The representative for the respondent has pointed out that there appears to be dual claims and that much of what appears in the instant complaint (CA – 00055468) also appeared in her earlier complaint CA – 00034127 submitted to the Workplace Relations Commission on 2nd February 2020 and heard on 1st September 2020. The Decision when issued on 1st October 2020 was appealed to the Labour Court who heard the appeal on 9th August 2022 and 24th October 2022. The determination of the Court was issued on 11th November 2022. The Determination from the Labour Court upheld the decision of the Adjudication Officer.

Any complaint the complainant may have made to her employer between the commencement of her employment and 2nd February 2020 has already been heard and decided by, in the first instance, an adjudication officer and, on appeal, by the Labour Court. They cannot now be re-heard as part of a second complaint submitted by the complainant on 9th March 2023.

Time Limits.

The representative for the respondent has clearly pointed out the following:

·       Section 77 subsection 5 of the Employment Equality Act states that:

Subject to subsection (6), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.

·       (6) If on an application made by the complainant the Director, the Labour Court or, as the case may be, the Circuit Court is satisfied that exceptional circumstances prevented the complainant's case (other than a claim not to be receiving remuneration in accordance with an equal remuneration term) being referred within the time limit in subsection (5)—

·       The Respondent submits that the Cognisable period for this claim is from 10 September 2022 through to lodging of the claim with the WRC on 9 March 2023.

·       No identified acts of victimisation or penalisation have been noted by the Complainant on either her claim form or her subsequent submissions within this timeframe.

I can only consider alleged acts of penalisation taking place between the dates of 10th September 2022 and 9th March 2023. I note that the Complainant commenced a period of sick leave in late November 2022 until after the 9th March 2023. This leaves a cognisable period from 10th September 2022 to 28th November 2022.

It is the position of the Respondent that at no time was the Complainant victimised or penalised within the meaning of the Acts for taking her claim against the Respondent. Within the Cognisable period of the claim the Complainant was working and did not notify the respondent of any issues or concerns, and subsequently went on sick leave on 10 November 2022 and has not returned to work.

Scope of the Claim.

·       The Complainant lodged her claim with the WRC on 9 March 2023.

·       The Complainant in her submissions sent to the WRC references actions that occurred from April 2023 onwards.

·       These details occurred after the claim was lodged and are therefore clearly outside the scope of the claim and should not be admissible.

I have to agree with the Respondent and cannot consider any actions that may have occurred after the lodgement of the complaint i.e. 9th March 2023.

In coming to a decision I must look carefully at the preliminary arguments presented by the Respondent. The majority of actions included in this complaint have already been dealt with at both Adjudication and the Labour Court and cannot be considered again.

Pursuant to section 77A of the Employment Equality Act 1998 (as amended) I am of the opinion that the complaint is misconceived and therefore has to be dismissed. It is my considered opinion that there was no possible chance that this complaint could be decided in favour of the Complainant.

Employment Equality Act 1998 (as amended).