Friday, September 17, 2021

Gordon Deegan

The Labour Court has set aside a €65,000 award made to an agency nurse who claimed that she was penalised by the Irish Prison Service (IPS) for making a complaint of sexual assault against a prisoner.

In the ruling, Deputy Chairman of the Labour Court, Alan Haugh stated that the evidence put forward by the IPS supports its conclusion that the reason for the decision to cancel Ms Maylena McEvoy’s shifts on January 17th, 2019 was her failure to fulfil her contractual and professional obligations with regard to her certification.

Mr Haugh stated: “This is perfectly consistent with the highly regulated nature of the nursing profession.”

Mr Haugh stated that as a result, there is no basis for the complaint advanced in the case to the effect that Ms McEvoy, an employee of CPL Healthcare and assigned to work with the IPS — was penalised for making a complaint concerning her being sexually assaulted by a prisoner.

Intervention

Mr Haugh also found as a matter of logic and law the finding by a Workplace Relations Commission (WRC) Adjudicator that an intervention made by TD Marc MacSharry at a meeting of the Public Accounts Committee (PAC) on January 17th, 2019 was somehow an operative factor in the IPS decision to temporarily cease Ms McEvoy’s scheduled shifts as an agency nurse “is incorrect”.

Mr Haugh stated that the court is satisfied that Ms McEvoy’s employment with the IPS was not irrevocably terminated as claimed — it was merely temporarily suspended.

He stated that the evidence demonstrates that Ms McEvoy knew or ought to have been fully aware of the fact that she was welcome to resume her shifts with the IPS once she had completed her certification.

The decision by the Labour Court sets aside the €65,000 award and decision by the WRC which had upheld Ms McEvoy’s penalisation complaint against the IPS under the Safety, Health and Welfare at Work Act 2005.

The Labour Court ruling follows the IPS appealing the WRC decision and award to the court and the case was heard over two days in a virtual Labour Court courtroom where four witnesses gave evidence on behalf of the IPS.

At hearing, the IPS’s National Nurse Manager, Enda Kelly was “emphatic” that he did not cancel Ms McEvoy’s shifts because of the sexual assault incident or because of her reporting it via an IPS complaint system.

When asked by counsel for the IPS, Peter Leonard BL if there was anything arising from the sexual assault incident that would have prevented Ms McEvoy being recruited for direct employment with the IPS, Mr Kelly replied: “No. On the contrary. She had the confidence to stand up and be counted.”

Shifts

Mr Kelly stated that specifically, his decision to cancel Ms McEvoy’s shifts was made after he was told that CPL Healthcare had made extensive efforts to get Ms McEvoy to attend the two outstanding courses to no avail.

He stated that his decision was based on a concern that the IPS could be exposed to liability, adding that there was a requirement that nurses must keep up to date with their training and certification.

Mr Kelly stated that nurses have a contractual requirement to complete the necessary courses and ultimately somebody who continues to be non-compliant cannot be retained in employment.

The IPS told the Labour Court that Ms McEvoy — regarded as an excellent nurse — was welcome to resume working for the IPS once that certificate issue had been resolved.

Concerning the incident of sexual assault, Ms McEvoy was administering medicines to prisoners at 7pm on November 27th, 2018 at the Midlands prison when a prisoner inappropriately touched her on her breast.

Two days later, Ms McEvoy submitted a formal complaint against the prisoner in question with the IPS.

The Prison Governor investigated and the prisoner did not dispute that he had inappropriately touched Ms McEvoy’s breast.

The prisoner is not a native speaker of English and explaining his actions, he told the Governor that he was attempting to communicate to Ms McEvoy that he had a cardiac issue and wanted to see a doctor.

He had initially pointed at his heart but felt he wasn’t getting through to Ms McEvoy, so he reached for a pen that was in a pocket in her uniform thereby inadvertently brushing his hand against her breast.

The Governor accepted this explanation and administered a reprimand to the prisoner. Ms McEvoy was not informed of the outcome of the complaint process.

Standard practice

A senior IPS officer at the Midlands Prison, Chief Officer Hickey stated that it is not standard practice in the prison service to follow up with staff who make complaints to inform them of the outcome.

In her evidence, Ms McEvoy stated that the IPS decision to discontinue her shifts in January 2019 came as “a devastating blow” to her.

Ms McEvoy stated that it had shattered her career aspirations and caused her to suffer mental health issues.

She stated that she would have returned to work with the IPS had she received an apology from the IPS for the events of November 27th, 2018 and had she been assured that the matter had been fully investigated.

A spokeswoman for the IPS on Friday stated that the IPS “has noted the Labour Court’s decision”.

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