Complainant

Respondent

Parties

Olive  Loughran

Health Service Executive

Representatives

Alastair Purdy & Co Solicitors

 Comyn Kelleher Tobin LLP

Act

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

CA-00062458-002

28/03/2024

The Complainant gave her evidence on affirmation at the outset of the hearing.

The witness for the Respondent, Ruth Walsh (Occupational Therapy Manager In Charge III) gave evidence on affirmation.

Detailed legal submissions were relied upon by both parties and shared in advance of the hearing date.

There was agreement between the parties that no Decision would issue before January 2025.

While it was considered whether the anonymise this decision in light of the potential to a third party instead the third party has been anonymized along with the location.

It was the Complainant’s evidence that she commenced employment with the Respondent on 30 March 2009 as a Senior Occupational Therapist, based at a Primary Care Centre.

It was her complaint that she carried out her duties without issue until 2022, when she raised concerns about the management of a client with significant disabilities who required ongoing required supporting medical equipment. As a result, she was penalised by the Respondent.

It was her evidence she highlighted risks at various meetings with her colleagues and in particular her line manager, Ms Walsh from September 2022. The Complainant lodged eight risk assessments with the Respondent on 3 October 2022:

(i)                  risk of injury to the client,

(ii)                risk of financial loss to the client’s family from repeated repairs,

(iii)               risk of injury to other service users during transport,

(iv)               risk of communication breakdown between services,

(v)                 loss of working hours for Occupational Therapists,

(vi)               risk to professional standards of practice,

(vii)             staff burnout, and

(viii)           misuse of public funds due to ongoing repair costs.

It was her evidence that she felt unable to meet her CORU obligations.

It was the Complainant’s evidence that the Respondent did not acknowledge the risk assessments until 26 October 2022, and the Complainant was not invited to a subsequent meeting on 22 November 2022, despite being the person who raised the concerns.

On 9 December 2022, the Complainant attended a meeting with her Ruth Walsh and Seamus Beirne a senior manager, intended to provide feedback on the risk assessments. The Complainant described the meeting as resembling an informal disciplinary session, noting that neither manager had the risk assessments, she was shouted at by Ms Walsh, and felt intimidated, prompting her to leave after 10 mins. It was her evidence that Ms Walsh accused her of nothing doing her job. She disputed ever seeing the note the meeting, stating the day before the hearing was the first time, she saw it. She added no notes were taken at the meeting.  The Complainant was asked about the allegation that she did not visit the client in 2 years to which she denied referring to a visit in November following a require from the parent. She was also asked if anyone followed her when she left the room citing, she felt unsafe to which she replied, “absolutely not”.

Following this, she submitted a formal grievance against Ruth Walsh.

The Complainant outlined the grievance process which ran from December 2022 until its conclusion on 20 December 2023. It was her belief that the grievances were not dealt with fairly.

During this period, the Complainant experienced delays and obstruction in accessing external supervision, which is a recognised professional practice standard. It was her evidence that when her previous supervisor moved on, she did not receive a proposal regarding a new supervisor despite requesting it of Ruth Walsh, following up on 3 July 2023 but not receiving a response until 28 July 2023.  It was the Complainant’s evidence that she was excluded from team supervision sessions in November 2023, despite reassurances from the Respondent, and was only provided with an external supervision meeting in January 2024. The Complainant stated she believed that she was the only OT in her area left without a supervisor which amounted to penalisation. This was in addition to been threatened with disciplinary by the outcome of the first stage of the grievance procedure.

Cross examination

The Complainant was cross-examined on several key issues relating to her conduct, communication, and supervision within her role. She was questioned about an email dated 17 November 2022, in which Miss Walsh had asked her to attend a patient’s house. The Complainant responded ambiguously, saying she assumed that was the case. Miss Walsh had replied that she couldn’t carry out the assessment because the patient wasn’t using the piece of equipment, making it a “fruitless” task. The Complainant denied refusing to do her job and stated she had seen the client in November.

She was asked about the number and appropriateness of risk assessments she had undertaken. She maintained that she had exhausted all other options and felt she had no choice but to proceed, acknowledging that there were eight assessments at one point. It was put to her that financial risks to parents did not equate to health and safety risks. She was also asked why she had nominated Miss Walsh as the risk owner, and she explained that her previous manager had told her the risk owner was responsible for escalation.

The Complainant gave evidence about a December 2022 meeting, stating that the agenda was unclear and that it was customary to provide one. It was put to her that she had handed over the physical file to Miss Walsh in November and that it had been temporarily reallocated then, contradicting her claim that she only learned of the reallocation in December. She responded that “temporary” reallocation was different and that she had sought clarification from Miss Walsh, which was not provided. She explained that she carried out an assessment in December because an equipment representative had submitted a review request.

She also raised concerns about being penalized by not being assigned a supervisor. She referred to CORU guidelines, although these were not exhibited. She argued that formal supervision was necessary for her clinical role and said that pod meetings were helpful but lacked documentation. It was put to her that Miss Walsh had stated she had a supervisor in July 2023. The Complainant said she was excluded from peer-to-peer supervision and was the only adult primary care OT without a supervisor, citing a list compiled by Miss Walsh. She said she was told by Mr. McGinn that April was the last opportunity to meet with a supervisor and that she had sent several emails to Miss Walsh without resolution. She stated her supervisor was only assigned in December 2023.

An email dated 10 October 2024 was presented, indicating a shortage of supervisors in the West/Northwest region. When asked about peer group supervision in Pods, the Complainant said it was helpful but entirely verbal and undocumented. She maintained that proper, documented supervision was essential and that she had been isolated and excluded in a way that others were not.

Legal Submissions

In response to the Respondent’s preliminary objection on the issue of time, it was submitted that the penalisation suffered by the Complainant has been ongoing. It was further submitted that there had been a breach of the grievance procedure at each stage.

The Complainant submitted she made protected disclosures by lodging risk assessments and subsequently a formal grievance relating to health, safety, and welfare at work, including concerns regarding the behaviour of her line manager. As a result, she suffered penalisation by the Respondent in two keyways: the threat of disciplinary action and the failure to provide timely and necessary external supervision, which is a recognised CORU best practice standard and essential for clinical practice and professional development.

The Complainant submitted that the failure to provide supervision while her colleagues received it in November 2023 constituted a detriment imposed “for” making a protected act under Section 27(3)(c) of the Act. She relies on legal precedent, including Paul O’Neill v Toni & Guy Blackrock Limited [2010], which establishes that detriment must be linked causally to the protected act, even if other factors are present. The Complainant maintains that the omission to provide supervision would not have occurred but for the grievances she had lodged.

The Complainant notes that the Workplace Relations Commission complaint form was lodged on 28 March 2024, making the cognisable period 28 September 2023 to 28 March 2024. She contends that, given the detriment suffered in connection with raising health and safety matters, she should be compensated accordingly.

Preliminary Objections:

Time Limit

The Respondent submits that the Complainant’s penalisation complaint must fall within the statutory time limits under Section 41 of the Workplace Relations Act, 2015. As the complaint was lodged on 28 March 2024, the cognisable period is 29 September 2023 to 28 March 2024. Only alleged acts of penalisation occurring within this period are within the Adjudicator’s jurisdiction. The Respondent also denies any ongoing contravention of the Safety, Health and Welfare at Work Act, 2005.

Failure to Identify Penalisation

The Respondent contends that the alleged delay in appointing a supervisor between November 2023 and January 2024 does not constitute penalisation. The Complainant continued to receive support through peer review and line management, and the temporary delay was due to the previous supervisor’s promotion. Such a short delay, in the context of continued support, does not meet the threshold of detriment described in Section 27(2) of the Act, which refers to significant acts such as suspension, demotion, or other formal penalties.

Ms Ruth Walsh

Ms Walsh outlined her professional qualifications and career history.

It was Ms Walsh’s evidence that the matter began on 3 October 2022 when she received a client’s case file and eight risk assessments from the Complainant. She was concerned that despite certain actions being taken, there was no record of a home visit or equipment review.

It was the witness evidence that there appeared to be confusion as to which services had been engaged and Ms Walsh sought clarification from the Complainant.

Ms Walsh having reviewed the risk assessments was concerned that the client had not been seen by an OT in over two years, she referred the case to the local POD scheduled for 2 November 2022 and informed the Complainant.t

At the POD meeting on 2 November 2022, Ms Walsh sated she instructed the Complainant and her colleague to carry out an assessment.

Ms Walsh referred to a 2020 email from a retired OT Manager, which the Complainant cited as limiting Primary Care OT intervention. It was agreed that the email referred to use of equipment within Day or Respite settings, and that Primary Care OT remained responsible for equipment assessments to access these services.

The Complainant initially agreed to carry out a home visit with a colleague but later withdrew, citing advice from her supervisor. It was Ms Walsh’s evidence that as a result no progression could be made for the client.

 Ms Walsh also spoke with the client’s parent, who was unclear about how to access OT services and told her that she would assign the case to another OT. Ms Walsh subsequently met with the client and carried out an assessment in a local primary care centre.

She described feeling very frustrated with the Complainant’s response.

In response to the allegation of discrimination made by the Complainant, it was Ms Walsh’s evidence that she was explaining during a phone call with the Complainant that “it would look like we were discriminatory if we picked and chose who we saw”.

On 9 December 2022, Ms Walsh gave evidence of the meeting with the Complainant and Mr Beirne. She described being of the view that the service user’s case needed to be reviewed at the meeting where he had not been seen in 2 years. She explained that a previous meeting with Mr Beirne and another colleague had taken place previously in November 2022 to discuss the risks raised by the Complainant. It was not accepted the risks as operational concerns by the colleague and the recommendation for reassessment was accepted.

The Complainant was asked for her version of events by Mr Beirne and when Ms Walsh challenged the information not being up to date, she left the room. She denied shouting at the Complainant.

The witness accepted she omitted the Complainant in the invite to the Pod meeting on 6 November 2023 and added she “could have omitted other people” also but she was included in the invite email of 27 October 2023 about that meeting.

She described the Pod meetings and stated while she does not have to be part of the meetings, it helps her keep in touch with what is going on in the group.

It was her evidence that she has 45 staff within her remit. At that time of year, she is seeking to “buddy up” staff but she was getting a response that they were too busy with work pressure to take on supervision. In 2023 she sought to get external supervision which was granted mid year.

It was her evidence that there was a shortage of supervisors and there were other staff without also being left without a supervisor. It was her evidence that she always thought of the Pod meetings as a forum to take to colleagues and would have taken place every 6 – 8 weeks.

Ms Walsh stated she was satisfied that the client was taken care of and added “CORU agreed”.

Cross examination

It was Ms Walsh’s evidence that, while the Respondent did not have jurisdiction to attend a day centre, she had initiated a review of the client’s seating needs and, as OT Manager, it was her decision to allocate the case. She stated that she had intended to discuss the client’s file with the Complainant at a future meeting, but when the Complainant said, “You are an OT, you do it,” she proceeded to reallocate the case. Ms Walsh was not initially aware that the client’s parent had not given consent for the Complainant to engage, but once informed, she reiterated via email on 22 November 2022 that the case had been reassigned.

Ms Walsh was asked why she did not declare that minutes were being taken during a meeting with the Complainant, and she responded that the meeting lasted only ten minutes. She acknowledged that a grievance was lodged shortly afterwards.

She accepted that the Complainant had sent emails in July and October 2023 seeking supervision and apologised for omitting her from a Pod meeting. Ms Walsh stated that she understood the Complainant was seeking external supervision, which is why she did not offer herself. While she described the risk assessments as highly unusual, she acknowledged that supervision was arranged months later.

Ms Walsh stated that CORU requires reflective practice and that she had spent two years establishing a supervision structure. She accepted that her email of 10 October 2024 to staff reflected an awareness of the importance of supervision, which had been set out by a manager, and she confirmed that she was the Complainant’s line manager.

Legal Submissions

The Respondent submits that, to succeed under Section 27 of the Safety, Health and Welfare at Work Act 2005, the Complainant must demonstrate: (i) a protected act, (ii) a detriment, and (iii) a causal link between the two. The Labour Court has emphasised in cases such as Wexford County Council v Murphy, Toni & Guy Blackrock Ltd v O’Neill, Kempis Sales Ltd v Byrne, and Minister for Justice v Healy that detriment must be imposed “for” having made a protected disclosure. The Act is a shield, not a sword; it protects employees from retaliation for raising health and safety concerns but does not excuse wilful refusal to carry out duties or other misconduct.

The Respondent relies on these authorities to argue that any alleged detriment must be clearly caused by the protected act. Where other factors, such as refusal to follow instructions or uncooperative behaviour, are the operative cause of the employer’s actions, no claim of penalisation arises. The Respondent contends that the Complainant’s case must be assessed against this legal framework, and any alleged delay in supervision or administrative actions must be causally linked to the protected act to constitute penalisation.

Preliminary Objection

The Respondent raised the argument that the complaint was statute barred where the Complaint Form was received by the Workplace Relations Commission on 28 March 2024, but the events complained of originated in 2006 and 2011.

The Complainant submitted the penalisation was ongoing and submitted a timeline of complaints in his submission.

No application to extension of time was sought.

Therefore, the cognisable period is from 29 September 2023 to 28 March 2024

Section 41 (6) of the Workplace Relations Act 2015 sets out the Adjudication Officer’s jurisdiction for entertaining complaints:

“(6) 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.”

Section 27 of the Safety, Health and Welfare at Work Act 2005 provides:

27.—(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition of any discipline, reprimand or other penalty (including a financial penalty), an

(e) coercion or intimidation.

(3) An employer shall not penalise or threaten penalisation against an employee for—

(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising any right under the relevant statutory provisions,

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

(e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).

(5) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

(6) For the purposes of subsection (3)(f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time.”

Section 27 (3) of the Act provides:

An employer shall not penalise or threaten penalisation against an employee for

(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising any right under the relevant statutory provisions,

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

(e) being a safety representative or an employee designated under Section 11 or appointed under Section 18 to perform functions under this Act…..”

The Complainant’s complaint is that she raised a grievance dated 9 December 2022 and submitted eight risk assessments on 3 October 2022, and that she was subsequently penalised as a result.

There are two acts of penalisation highlighted by the Complainant:

·       A threat of disciplinary action; and

·       A delay in being granted supervision.

Considering the first allegation, the Complainant gave evidence that the threat of disciplinary action occurred on 9 December 2022, when she was accused by her line manager of failing to carry out her duties. She described this as an informal disciplinary meeting. She also referred to the grievance outcome report issued by Mr Beirne on 9 May 2023.

In relation to this aspect of the complaint, the timeline is clear. The cognisable period is from 29 September 2023 to 28 March 2024. Therefore, the most recent complaint, dated 9 May 2023, falls several months outside the cognisable period. As a result, there is no jurisdiction to consider this element under Section 41(6) of the Workplace Relations Act 2015.

Regarding the delay in granting supervision, the Complainant stated that she did not receive supervision from her last meeting on 6 April 2023 until January 2024, and that this delay was to her detriment. The Respondent’s evidence was that the Complainant’s assigned supervisor was promoted in April 2023, and a new supervisor was appointed in October 2024. It was not disputed that the Complainant did not meet the new supervisor until January 2024. The delay was attributed to a shortage of available supervisors across the service. As an interim measure, Pod supervision meetings were held every 4–6 weeks to facilitate peer support among colleagues.

Based on the timeline, this complaint falls within the cognisable period.

Both parties relied on the Labour Court decision in Paul O’Neill v Toni & Guy Blackrock Limited [2010] ELR 21, which held that the detriment complained of must have been imposed “but for” having carried out a protected act under Section 27(3) of the Act. The Court stated:

“It is clear from the language of this section that in order to make out a complaint of penalisation, it is necessary for a claimant to establish that the detriment of which he or she complains was imposed ‘for’ having committed one of the acts protected by subsection 3. Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the claimant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of, the commission of a protected act must be an operative cause in the sense that ‘but for’ the claimant having committed the protected act, he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision-maker in imposing the impugned detriment.”

The Labour Court also considered the meaning of “detriment” in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 2 All E.R. 26, which established that the test is objective. The Court must consider whether a reasonable worker would or might view the treatment complained of as detrimental in all the circumstances.

It was not disputed that at least some of the risks raised by the Complainant in the risk assessments constituted health and safety concerns, thereby qualifying as a protected act under Section 27(3) of the Safety, Health and Welfare at Work Act 2005.

The four allegations raised by the Complainant in her grievance against her line manager, Ruth Walsh, were:

• Reallocation of duties without consultation

• Accusation of discrimination

• Accusation of failure to carry out duties

• Spreading misinformation about the Complainant’s performance to third parties within and outside the HSE

Having reviewed the grievance documentation dated 9 December 2022 and the subsequent investigation, which concluded on 20 December 2023, these allegations cannot reasonably be said to fall within the definition of a protected act under Section 27(3). They relate to interpersonal and management issues rather than health and safety concerns.

As to whether the delay in assigning the Complainant a supervisor amounts to a detriment under Section 27(2), the general shortage of supervisors, as outlined in Ms Walsh’s evidence and supported by the list of supervisors presented at the hearing, must be considered, together with the email of 10 October 2024 relied upon by the Complainant noting an “acute” shortage. The Complainant’s previous supervisor was promoted, and while the Respondent was critical of the absence of CORU guidelines, its witness confirmed that it is standard practice for each OT to have a supervisor and that CORU requires reflective practice.

It is accepted that the Complainant made repeated efforts to engage with her line manager to secure supervision. It is also not disputed that, whether the new supervisor was appointed in October or January 2024, a number of months passed during which the Complainant was without formal supervision.

While Pod meetings were not a permanent solution, it is accepted that Ms Walsh established them in 2023 to facilitate regular peer supervision.

The burden of proof rests with the Complainant to establish that she suffered a detriment. I am not satisfied that she was the only OT left without a supervisor. Although she claimed to have seen a list in 2023/2024 showing her name as the only one without a supervisor, no clear evidence was presented to support this. Under cross-examination, when asked what detriment she suffered, she stated that she felt excluded and isolated from peer supervision. Her supporting evidence was an email invite to the Pod on 6 November 2023. However, the email thread beginning on 19 September 2023 shows that the Complainant herself suggested the 6 November date immediately after an ATM. The omission of her email address from a group email cannot, in itself, be considered unreasonable in the workplace. In the broader context, it would have been reasonable for the Complainant to follow up with colleagues to confirm the meeting was going ahead. The apology for the omission, given at the hearing, is also noted.

Considering the objective test for detriment, whether a reasonable worker would or might view the treatment as detrimental, I find that the delay in assigning the Complainant a supervisor does not constitute a detriment under Section 27(1) of the Safety, Health and Welfare at Work Act 2005.

For these reasons, I find that the Complainant has not satisfied the burden of proof and the complaint is not well founded.

The complaint is not well founded.

Penalisation – Detriment