Health Service Executive North West (Represented by Hegarty and Armstrong, Solicitors) v Patricia Cullen Killoran (Represented by John Gerard Cullen, Solicitors)
| Jurisdiction | Ireland |
| Judgment Date | 30 April 2018 |
| Judgment citation (vLex) | [2018] 4 JIEC 3001 |
| Docket Number | FULL RECOMMENDATION DETERMINATION NO.EDA1830 DEC-E2016-123 |
| Date | 30 April 2018 |
| Court | Labour Court (Ireland) |
Labour Court (Ireland)
FULL RECOMMENDATION
ADE/16/84
DETERMINATION NO.EDA1830
DEC-E2016-123
Chairman: Ms Jenkinson
Employer Member: Ms Doyle
Worker Member: Mr McCarthy
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015
1. An appeal of an Adjudication Officer's Decision no: DEC-E2016-123.
2. The Complainant appealed the Decision of the Adjudication Officer to the Labour Court on the 30 September 2016. Two Labour Court hearings took place on the 22 June 2017 & 28 February 2018. The following is the Court's Determination:
This is an appeal by Ms Patricia Cullen Killoran against the decision of an Equality Officer /Adjudication Officer under the Employment Equality Acts 1998 - 2011. The Complainant alleged that she had been discriminated against and harassed on the grounds of her disability and family status by her employer the HSE, she also claimed that she had been victimised.
The Complainant referred her claims under the Acts to the Equality Tribunal on 3 rd December 2012.
By decision dated 30th August 2016 and bearing reference no DEC-E2016-123, the Equality Officer /Adjudication Officer held that the Complainant had failed to establish a prima facie case of discriminatory treatment, harassment and victimisation on the disability ground. He found that the Complainant was not a person with a disability at the relevant period.
At the first hearing before the Equality Officer/Adjudication Officer on 13 th October 2015, the elements of the complaints relating to family status were formally withdrawn by the Complainant's Legal Representative. The Equality Officer /Adjudication Officer's Decision was issued on 30 th August 2016, it was appealed to the Court on 30 th September 2016. The Court held hearings on 22 nd June 2017 & 28 th February 2018.
At a hearing before the Court on 22 nd June 2017, Mr Brian Armstrong, Hegarty & Armstrong Solicitors, on behalf of the Respondent made an application to the Court that the Complainant's claim should be dismissed under Section 77A of the Acts for two reasons, (i) the claim was misconceived and (ii) the claim related to a trivial matter. The Court considered the application made.
In Determination EDA1725, the Court held that as no application was made to The Director General of the Workplace Relations Commission under Section 77A of the Acts that the claim had been made in bad faith or was frivolous, vexatious or misconceived or related to a trivial matter. Therefore, as no application was made there was no such decision on appeal, accordingly, having regard to statutory provisions, the Court did not have the jurisdiction to accede to the application made.
As the Equality Officer /Adjudication Officer found that the Complainant was not a person with a disability at the relevant period and held that she had failed to establish a prima facie case, the Court decided to hold a hearing to consider the preliminary matter of whether or not the Complainant had a disability at the relevant time within the definition of Section 2 (1) of the Employment Equality Acts 1998 - 2011. This was held on 22 nd June 2017. However, due to the volume of submissions made by the Complainant it was not possible to complete this aspect of the case on that day. Furthermore, at the closing of the case on the day, Mr Armstrong made the above-mentioned application. The Court issued its Determination on that application on 28 th July 2017 and proceeded to set aside two days on 28 th February/1 st March 2018 to hear both the preliminary matter and the substantive case.
The Complainant is employed by the Respondent as a Public Health Nurse in the Tubbercurry area.
On 8 th June 2012, the Complainant was informed that her mother had taken seriously ill and was being brought to hospital in Dublin. The Complainant informed the Court that on hearing this news, she sought to be with her mother.
The first alleged incident of discrimination occurred on 11 th June 2012, when the Complainant telephoned the Respondent to notify it of her sick leave on medical advice due to stress. The Complainant asserted that she was obliged to take "force majeure" on 8 th June 2012 to look after her mother who was gravely ill and taken into hospital. She alleged that she was further harassed, bullied and victimised on 20 th August 2012 when she was summoned to a meeting while on sick leave to discuss her "poor communication performance", when she had left her post on 8 th June 2012 without verbal consent and/or without notice.
Mr John Gerard Cullen, John Gerard Cullen Solicitors, on behalf of the Complainant submitted that the Complainant was discriminated against by the Respondent on 11 th June 2012 when she made a telephone call to the Respondent and was further discriminated against when she was required to attend a meeting with the Respondent on 20 th August 2012.
Mr Cullen submitted numerous submissions and extensive documentation in the course of the appeal which the Court has succinctly summarised in this Determination.
Mr Cullen alleged that the Complainant was bullied and harassed on the telephone by the Senior PHN, on the 11th June 2012, when she telephoned her to inform her that she was on certified sick leave. The Complainant followed up this call with a formal complaint against the Senior PHN. He said that no investigation was undertaken by the Respondent on foot of such complaint. Instead, he asserted that the Complainant was invited to a retaliatory meeting on 20 th August 2012 to discuss her 'poor communication skills' where she alleged that a note taker falsely recorded the Complainant as making an 'admission' of leaving her work area unprofessionally so as to endanger patients on 11th June 2012. This, Mr Cullen asserted was a creative attempt to attack the Complainant's dignity and professionalism. This occurred without the Complainant being advised prior to the meeting that such an allegation would be made at the meeting.
Furthermore, he alleged that at the said meeting the Complainant was advised that in addition to the submission of doctor's certificates and the sending of text messages to the Respondent, the Complainant was obliged to telephone the Respondent on a weekly basis during her sick leave absence, regardless of her condition, as the Principal PHN 'preferred it'. Mr Cullen submitted that these acts were also acts of discrimination on the disability ground and were acts of victimisation in consequence of the complaint she made about the alleged harassment and discriminatory treatment by the Senior PHN on the telephone on 11thJune 2012. He alleged that the victimisatory conduct resulted from the unprocessed complaint she made against the Senior PHN, and which are encompassed by the meaning of section 74(2) of the Acts, were as follows:-
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â-‹ Dissemination of the Complainant's sick records by email to all staff
Mr Cullen said that the circulation by the Respondent of details of the cost of absenteeism rates to all staff in November 2012 highlighting the Complainants absence level, was an act of victimisation.
â-‹ A malicious report of 'disturbed behaviour' by the Complainant to HR
- Mr Cullen claimed that the Respondent retaliated against the Complainant for making a complaint against the Senior PHN when the Principal PHN made a malicious report to HR without her knowledge of the Complainant's (and her brother's) disturbed behaviour, which was designed to conclude that the Complainant was unstable. He said that these were effectively allegations of criminal behaviour and neglect and submitted that the Principal PHN's complaint was a targeted and victimisatory act of discrimination.
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â-‹ The manufacture of a false note of admission of professional misconduct
- Mr Cullen submitted that the Respondent recorded in the minutes of the meeting held on 20 th August 2012 that the Complainant admitted to leaving her work area unprofessionally so as to endanger patients on 8th June 2012. He said that she had been effectively ambushed into such an admission without being advised beforehand that such a serious allegation would be made. This he contended was a form of retaliation for the complaint she made against the Senior PHN on 18 th July 2012.
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The refusal to notify colleagues of the death of mother
Mr Cullen stated that following the death of the Complainant's mother in November 2013, in a departure from normal practice, there was no email notification of her death to staff. He claimed that such refusal to notify colleagues was targeted, retaliatory and less favourable treatment.
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â-‹ Exclusion of the Complainant from email communication etc
The Complainant was not set up on the email system in the Tubbercurry Health Clinic from the time she joined in 2011 until April 2013.
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â-‹ The non-processing of complaints the Complainant made against three members of management
- Mr Cullen submitted that it was not been possible for the Complainant to process any of her complaints to date against three members of management as her colleagues are petrified to accompany her to any grievance meeting and the trade union did not to wish to get involved.
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Trebling of her workload
- Mr Cullen stated that when the Complainant returned to work at the end of 2012 she was then forced to carry out grossly excessive levels of 'cross cover'. During 2013 and 2014 and for part of 2015 she was required to do the work of two and three public health nurses. Once a week she was required to do the work of three PHN's and she was left without administrative support and...
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