Case Number: ADJ-00023593. Workplace Relations Commission.
| Docket Number | ADJ-00023593 |
| Hearing Date | 02 December 2019 |
| Date | 01 June 2020 |
| Year | 2020 |
| Court | Workplace Relations Commission |
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00023593
Parties:
|
|
Complainant |
Respondent |
|
Anonymised Parties |
Agency Nurse |
State detention body |
Complaint(s):
|
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-00029661-001 |
13/07/2019 |
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Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 |
CA-00029661-002 |
13/07/2019 |
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Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 |
CA-00029661-003 |
13/07/2019 |
|
Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012 |
CA-00029661-004 |
13/07/2019 |
Date of Adjudication Hearing: 02/12/2019 and 16/01/2020
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Procedure:In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
The facts of this case are unique and can easily identify the parties to the complaint. Pursuant to section 41(13) of the Workplace Relations Act 2015 this case was held in private and the parties are entitled to anonymity in this decision.
I have adopted the direction provided in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 at p.113 where O'Flaherty J. in the Supreme Court noted that minute analysis or reasons are not required to be given by administrative tribunals, that the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given:
“I would reiterate, what has been said on a number of occasions, that when reasons are required from administrative tribunals they should be required only to give the broad gist of the basis for their decisions. We do no service to the public in general, or to particular individuals, if we subject every decision of every administrative tribunal to minute analysis.”
Background:|
The Complainant was an agency worker and commenced working in the Respondent’s system in November 2016.
The Respondent is the end user / hiring company.
The Complainant moved between locations operated by the Respondent and arranged her shifts with her agency and also directly with the Respondent sending in time sheets in arrears to the agency. She engaged with her line manager in the agency and her line manager with the Respondent.
The Respondent had a requirement that all nursing staff complete a number of courses before working with them.
The Complainant was sexually assaulted in the workplace on the 27th November 2018.
Her complaint was raised by a TD in the Public Accounts Committee (PAC) on the 17th January 2019.
The Complainant’s engagement with the Respondent ceased on the 18th January 2019. |
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CA/00029661/001
The Complainant gave evidence that on the 27th of November 2018 she was sexually assaulted in her workplace. This happened when she was dispensing medication. The Complainant’s breast was grabbed by a person in the Respondent’s control and supervision. The assault was witnessed by an employee of the Respondent whose role was to supervise the area.
The Complainant completed an incident report for the Respondent, but she was not informed if an investigation into the assault took place or contacted by the Respondent in relation to same. She was not offered any support from the Respondent arising from the assault.
A week after the incident she was rostered to return to the same area where the assault took place to carry out the same duties. The Complainant was very upset about this. She was unaware of the status of her complaint. No safeguards were put in place to protect her safety. She felt very vulnerable and telephoned an employee of the Respondent and expressed her concerns. Her duties were not changed. The Complainant continued to work under duress.
The Complainant was advised by another employee of the Respondent to report the assault to An Garda Síochána. This conversation took place in an area which the Complainant considered inappropriate and she felt exposed to further harm.
The Complainant advised a further employee of the Respondent that she was afraid to follow up on her report as being only an agency nurse she was concerned that she was not be booked for further shifts if she “rocked the boat”. The Complainant was hoping to be permanently assigned to the Respondent at that location and wished to move from working ad hoc hours to working longer and more certain hours.
At a hearing of the Public Accounts Committee (PAC) of Dáil Eireann a TD raised on a no names basis that an agency nurse working in the Respondent had made a complaint of sexual harassment, but that nurse was afraid to take it further for fear that the agency would not make her available for further work within the Respondent.
The Complainant’s case is that on that same day 17th January 2019, the National Operational Nurse Manager with the Respondent telephoned her line... |
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