Case Number: DEC-E2016-123. Workplace Relations Commission

• Judgment Date: 01 August 2016
• Court: Workplace Relations Commission
• Docket Number: DEC-E2016-123
• Parties: A Nurse -V- A Health Service Provider

EMPLOYMENT EQUALITY ACTS

Decision DEC–E2016–123

PARTIES

A Nurse

(Represented by John Gerard Cullen Solicitors)

and

A Health Service Provider

(represented by Hegarty & Armstrong Solicitors)

File Reference: EE/2012/611

Date of Issue: 30 August 2016

DISPUTE BACKGOUND.

The Complainant referred complaints under the Acts, to the Director of the Equality Tribunal on 3^rd December 2012, alleging that the Respondent had (i) discriminated against on her the grounds of disability and on the grounds of family status and she further submitted that the Respondent had harassed and victimised her on the same grounds. In accordance with his powers under Section 75 of the Act, the Director, on 24^th July 2015, delegated the case to me, Seán Reilly an Equality Officer, for Investigation and Decision. Submissions were received from both parties.

As required by Section 79(1) of the Acts a Hearing took place on 13^th October 2015, and that Hearing was resumed on 21^st January 2016 and on 3^rd May 2016.

SUMMARY OF COMPLAINANT’S CASE.

In her Complaint Form the Complainant stated the following:

I was bullied and harassed on the telephone by a named Manager on 11^th June 2012, when I sought to explain that I was taking sick leave on medical advice due to stress. I had been obliged to take ‘force majuere’ leave on 8^th June 2012, on getting notice that my mother was gravely ill in hospital. I was told on 11^th June 2012 by this Manager, in reference to the necessity to take a ‘force majeure’ leave day on 8^th June 2012 and my sick leave, that I could “not just take leave because your mother is ill” - notwithstanding my disability. This Manager said that notwithstanding a doctor’s certificate that there was very strict criteria for sick leave. She said that she would have to sanction it and that “sick leave was at her discretion”. She was extremely dismissive. I subsequently made a complaint about this bullying and harassment, which was ignored by the Respondent. This Manager’s manner was intimidating and unprofessional throughout. I was left very traumatised and shaken by this telephone call.

I was further harassed, bullied and victimised by another named Manager on 20^th August 2012, at a named location. This Manager summonsed me to appear at her rooms, while on sick leave, to discuss my “poor communication performance”. At this Meeting, it became evident however that the Meeting had nothing to do with the other Manger’s telephone behaviour. Instead this Manager refused to allow my legal representative to attend the Meeting and she sought to advance a wholly contrived, spurious, false and malicious allegation that I had left my post on 8^th June 2012, without verbal consent and/or without notice. She alleged that consequently she had “serious concerns” about the clients in my area. She also contended that it was “poor communication performance” to communicate by text and by post. This latter was in a context where it had been expressly explained to this Manager that because of the other Manager’s telephone bullying and the stress caused that I could not make telephone contact until my complaint in that regard was addressed. I had explained to this Manager that I was unable to deal with any further stress, which was having a detrimental impact on my health and daily life. The fact that such bullying had remained unaddressed by the Respondent in the interim was compounding my stress.

This Manager’s manner throughout was repetitively incorrect, false and victimisatory, and was continuously intimidating and oppressive.

It was clear that this Manager in making this insulting, defamatory and baseless allegation of unprofessionalism against me was victimising me inter alia for complaining about the other Manager and for not ‘phoning in (notwithstanding the non-investigation by the Respondent on the other staff member’s telephone behaviour). Following this Meeting, which left me traumatised, I needed immediate medical treatment and hospitalisation on the following day as a result. Following my written complaints about the first named Manager no investigation whatsoever has been initiated to date by the Respondent.

In her first written submission, the complainant said the following.

The Complainant said that she is a Public Health Nurse (PHN) employed by the Respondent. The Complainant said that she wrote to the Respondent invoking the grievance procedure in relation to the bullying of her by (a named staff member) on 11^th June 2012, during a telephone call in which the Complainant sought to inform that she was, on medical advice, unfit for work. The staff member sought to deny such sick leave, supported by a medical certificate. This staff member harassed and bullied the Complainant on the telephone informing the Complainant that she would have to approve any sick leave in the Complainant’s case, that the Complainant could not take sick leave “just because your mother is sick” and greatly compounded her stress.

The Complainant formally wrote invoking the grievance procedure in respect of such telephone call. There has been no and/or no rational response to that invocation of the grievance procedure in the long interim.

Instead of any investigation, a named Manager of the Respondent, then informed the Complaint by letter that she wished the Complainant to attend to see her in her Office while the Complainant was on sick leave from work. The Complainant duly attended the Meeting on 20^th August 2012 with this Manager to discuss what she assumed would be the bullying and harassment of her on grounds of her disability and her family status. This Manager described the purpose of the Meeting in her letter as “poor communication performance”.

The Complainant said that Meeting, in effect, turned out to be a ‘dressing down’ Meeting, in which the Manager proceeded to abuse her. At the Meeting the Manager refused the Complainant permission to be accompanied by a family member (her brother, who is referred to in the Complaint Form as her ‘Legal Representative’). This Manager proceeded to advance the proposition that in addition to the Complainant writing in to the Respondent by way of text messages and doctor’s reports, that the ill Complainant should also, in addition, call in on the telephone, so, as not so much duplicate, as triplicate the message. This Manager, informed at the Meeting that she regarded this ‘failure’ by the Complainant to call in personally on the telephone on a weekly basis to repeat what was evident in the text message and doctor’s certificates as “poor communication performance”. The Complainant said that the only motivation for such measure by the Manager was to increase the pressure on her when she was already suffering from work-induced stress and to victimise her because of her complaint against another Manager. At this Meeting this Manager not once enquired about the Complaint’s health and/or stress, despite express earlier claims to the contrary of a third Manager of an intention by the Respondent to offer the Complainant support in that respect.

The Complainant said that when the issue of the non-investigation of the bullying and harassment by the first Manager was raised at the Meeting, this Manager passed over it in silence as if it were a matter of no consequence that did not warrant any rational enquiry. The Complainant informed the Manager that she believed it would injure her health to call in on the telephone in advance of the harassment and bullying on the telephone by the first named Manager being investigated and addressed. The Complainant said that the Manager then sought to further pressure and abuse her by fabricating a wholly spurious suggestion that the Complainant had left her post without authorisation on 8^th June 2012, for ‘force majuere’ family reasons and that the Manager had serious concerns for the Complainant’s clients. The Complainant said this latter was an absolutely false and vicious attack on her professionalism, integrity and her capacity to do her work. The Complainant said there was no basis for such claim other than to inflict maximum psychological injury on her. The Complainant said that if the Manager had investigated such matter rationally she would have discovered that she had in a fact contacted a named person and a named administrative centre in a named location in advance; and had obtained text message and voice consent to her so leaving her post prior to her actually leaving on the day in question; she had carried out all of her nursing calls on the day and had handed over the one last...