FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE DUBLIN NORTH EAST - AND - A WORKER (REPRESENTED BY IRISH NURSES ORGANISATION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Recommendation R-044340-IR-06/JH.
BACKGROUND:
2. The Worker concerned is employed as a Public Health Nurse attached to Meath Community Services.
In February 2006 the Worker was requested to transfer on a temporary basis to another District. Initially she agreed to the transfer but following a conversation with someone she withdrew her agreement and went on certified sick leave due to 'work related stress'.
The Worker subsequently wrote to her Line Manager outlining her concerns regarding the proposed transfer. She also wrote to the General Manager stating that she felt the transfer request was direct harassment as a result of evidence she gave in a bullying investigation. Her concerns were dealt with through a grievance procedure but no satisfactory resolution could be found which was acceptable to the Worker.
The issue was referred to a Rights Commissioner for investigation and recommendation. His recommendation issued on the 3rd November 2006 as follows:-
"The claimant's sick leave record be amended to eliminate the period of sick leave surrounding this incident".
This is the only issue appealed by Management to the Labour Court on 13th November, 2006, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 13th April, 2007.
MANAGEMENT'S ARGUMENTS:
3. 1. The sick pay arrangements which apply to 'officer grades' in the HSE are based on the Department of Health Circular 10/71 (Appendix 111). There is no scope within this scheme to extend or modify periods of paid sick leave, except in the case of Tuberculosis.
2. The rationale to transfer the Worker temporarily was justifiable in terms of service provision.
3. Management went to great lengths in their attempts to allay the Worker's concerns regarding the transfer.Regrettably, she refused to work with Management to agree a compromise.
4. The Worker continued to submit medical certificates, for five months, despite the fact that she indicated that she was fit to return to work.
WORKER'S ARGUMENTS:
4. 1.The Union maintain that Management did not adhere to their own unilaterally drafted policy with regards to the selection of Public Health Nurses for transfer to another area.
2. The Worker returned to work following medical clearance to do so.
3.Despite having received a letter from Management assuring her of no further repercussions consequent on her providing evidence in a bullying case, the confirmed bully referred the Worker to the Fitness to Practice Committee of An Bord Altranais, within one week of her return to work.This was a clear case of victimisation.
DECISION:
It appears to the Court that in the period up to June 2006 there was no doubt as to the Claimant's unfitness for work due to illness. There after it appears that it was related to concerns regarding possible implications arising from her participation in an earlier investigation of bullying, and the affects those concerns had on her psychiatric health.
While the matter is not entirely free from doubt the Court is of the view that in the particular circumstances of this case the period of illness up to June 2006 should be deducted from the overall entitlement to sick leave period but the period after that date should be discounted.
The Rights Commissioner 's recommendation is amended accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
20th April, 2007______________________
MG.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Madelon Geoghegan, Court Secretary.