AD0958

SUBJECT:
1. Appeal of Recommendation of a Rights Commissioner R-060955-Ir-08/JW.


BACKGROUND:

2. The worker commenced employment as a Clinical Nurse Manager 1 (CNM1) at St. Mary's Hospital, Drogheda, for care of the elderly. She witnessed an incident at work on the night of 5th September, 2005, which greatly upset her. As a result of this, and what she perceived as being increasingly ostracised and marginalised by her work colleagues over the next five months, the worker was on sick leave from January, 2006, until 14th May, 2007, when she returned on a phased basis. During that time she received full pay following agreement with the HSE. The first part of the Union's case is that when the worker returned she noticed that part of the annual leave she had accrued while on sick leave in 2006/07 was being used by the HSE to pay her a full salary. The worker had two further periods of sick leave - one for two days and one for seven weeks from May to July in 2008. These were not related to the previous incident in September, 2005. The five months when the worker felt that she was being ostracised was the subject of an investigation under the HSE's Dignity at Work Policy. The second part of the Union's case is that the worker was informed that, because of the investigation and her absence due to sick leave, the worker would receive no further sick leave until May, 2010.

The HSE believes that the worker was treated fairly and received both annual leave and sick leave above what she was entitled to.

The case was referred to a Rights Commissioner and his recommendation was as follows:

"I recommend in favour of the employer for the following reasons:

• • 
    1 On the balance of probability I find that the decision taken by the Assistant National Director of HR regarding the claimant's sick leave only related to her absence which commenced on 16th January 2006, and the decision to pay the entire period of full pay was on a once off basis. It would follow that no commitment was given to either discount or disregard this period of sick leave for the purposes of calculating sick pay into the future.
  • 2. The letter of 5th September 2006 requested the employer to "ensure to accommodate her in the best way possible with regard to her return to work". The best way possible was the application of a return to work under the rehabilitation programme. These terms were applied. All relevant terms and conditions of employment, as they apply in the matters of occupational sick leave, annual leave have been applied to the claimant. No evidence has been given to show that the employer failed to apply the relevant terms and conditions of employment except the employer breached the terms in order to give the claimant her full pay for 16 months and to allow annual leave to be accrued during a whole year on sick leave.
  • 3. The Union has argued that the claimant has been penalised with regard to -
  • (a) her annual leave being used in the manner it was without her consent or agreement.
    
    (b) Her sick leave entitlement being eroded until 2010 due to the omission of the HSE to inform her of difficulties between the patient and the care attendant.
    

The HSE claims it did have the consent of the claimant. According to the HSE the claimant agreed with the Assistant Director of Nursing that her return to work would be phased using annual leave days to make up contracted hours shortfall. Chapter 10 of the Rehabilitation Programme states "that the manager and the employee shall discuss and agree how the worked hours can be topped up". If that conversation and agreement had not taken place the HSE would have been in breach of its own regulations. This approach was also proposed by the Consultant Occupational Doctor on 11 April 2007 in relation to the claimant's phased return to work. Where he states "her normal hours increasing incrementally using accrued annual leave if necessary to facilitate this process in a cost neutral fashion over 4 to 6 weeks". I also note that the claimant signed most of her time sheets during this period which would indicate that she was aware and agreeable to this approach. I fail to see how the claimant was penalised in this context.

The claimant's sick leave entitlement is determined in accordance with the standard procedure for sick leave for HSE employees. The HSE followed this procedure in relation to the claimant. The HSE in their letter of 20th December 2007 deny that there was "any understanding that sick leave would be discounted for future purposes".

Any alleged omission on the part of the HSE for the five month period, September 2005 to February 2006 forms part of the Independent Investigation Report and has yet to be discussed between the parties".


The Union appealed the recommendation to the Labour Court on the 16th December, 2008, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 5th February, 2009.

UNION'S ARGUMENTS

3. 1. The HSE took no steps to protect the worker in the five months following the incident in September, 2005, and her subsequent sick leave was a direct result of this. The investigation came to the same conclusion.

2. The HSE agreed that the worker would remain on full pay for the duration of her sick leave. It is unfair that management would penalise her now by denying her sick leave as a result of its own failure to protect her.

3. The worker is clear that at no time did she agree to have her annual leave used to provide her with full pay.


HSE'S ARGUMENTS:

4. 1. The agreement by management to put the worker on full pay for the duration of her illness was a once-off arrangement and this was made clear to the worker and her Union. No commitment was given to discount the period of sick leave for future periods of sick leave.

2. There is a provision in Chapter 10 of the Attendance Management Policy which allows the use of annual leave to offset reduced hours worked during a rehabilitation period when sick leave has been exhausted (as was the case here). The worker was agreeable to this approach. In total the worker carried 43 accrued annual leave days to her new post.

DECISION:

The Court has carefully considered the submissions made to it in this matter. The Court is of the view that the Claimant is due to qualify for full sick pay again in 2010. Until then, any absences due to illness should be considered, for qualifying purposes, on their own merits and on a case-by-case basis bearing in mind the history of this case.

On the question of annual leave, it is clear to the Court, from an examination of the joined ECJ cases of "Stringer and Others v H.M. Revenue & Customs" and "Schultz-Hoff v Deutsche Rentenversicherung Bund" (C-520/06/ and C-350/06) [2009] IRLR 214, that a worker, even if absent on sick leave, preserves their rights to their annual leave. In consequence, the Court recommends the return to the Claimant of annual leave used to offset against her reduced hours on her return to work previously.

The Court, therefore, varies the Rights Commissioner's Recommendation accordingly, and so decides.



Signed on behalf of the Labour Court



Raymond McGee
3rd July, 2009______________________
CONDeputy Chairman



NOTE

Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.