FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE - AND - A WORKER (REPRESENTED BY IRISH NURSES AND MIDWIVES ORGANISATION) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal Of Recommendation Of A Rights Commissioner R-067408-Ir-08/EOS
BACKGROUND:
2. The issue involves a claim by the Union on behalf of its member. The worker was employed as a nurse and in 2003 after having suffered an assault in the workplace, was placed on the Assault at Work scheme. Once the maximum time period on this scheme had been exhausted she was then placed on the Injury at Work scheme which allowed for the payment of five sixths of her nurses income on an ongoing basis. After failed attempts to primarily return to her original post and then to a less strenuous nursing post, the worker remained on the Injury at Work scheme until such a time that redeployment to a less physically demanding post was offered. Subsequently, the worker was offered and accepted a Grade 3 receptionist/telephonist clerical post. It was found that the worker was incapable of fulfilling the duties associated with this position due to the aggravation of her condition in doing so. The worker was unable to continue in the post and at this point she was placed on a clerical officer sick leave scheme and no longer received five sixths of her nurses salary, as previously granted under the Injury at Work Scheme. The claim concerns the loss of earnings suffered by the worker as a result of this action taken by the employer.
The matter was referred to a Rights Commissioner for investigation and recommendation. On the 9th of November 2009, the Rights Commissioner issued her recommendation as follows:
"I recommend that the HSE pay the claimant €25,000 compensation in full and final settlement of this dispute. I further recommend that for the future both parties agree a formula for ensuring that agreed minutes are maintained of meetings concerning the clearly sensitive matter of redeployments".
On the 11th November 2009, the HSE appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act 1969. A Labour Court hearing took place on the 13th May, 2010.
UNION'S ARGUMENTS:
3. 1. Immediately following the worker's failed attempts to return to work she was placed on the Injury at Work scheme and continued to receive five sixths of her nurses salary under this scheme.
2. The worker's acceptance of the clerical post was thought to be a rehabilitative trial and not considered as redeployment to a lower paid position.
3.When the worker was incapable of carrying out the post she was placed under a clerical officer sick pay scheme. The worker should have been placed under the Injury at Work scheme however the employer refused to do so.
COMPANY'S ARGUMENTS:
4. 1. After several failed attempts of trial rehabilitation and with the difficulties encountered in sourcing an alternative post, the employer considered redeployment.
2. Redeployment is not considered as a trial therefore the offering of the clerical post was not seen as a temporary measure. Having been accepted by the worker it was understood that this was agreed as being a permanent redeployment to a lower paid position.
3. The employer was correct to place the worker on the sick pay scheme under the terms of her redeployment. A return to the Injury at Work scheme was not appropriate in this case as no injury had occurred after the worker had commenced her new position.
DECISION:
The Court considered the extensive written and oral submissions of both parties to the Appeal. The Court is of the view that all parties behaved honourably, if imperfectly, in their processing of this matter. In particular the Court believes the HSE went to considerable lengths to assist the Claimant to return to suitable work within her profession. When this failed the HSE made extensive efforts to find alternative work outside of her profession for the Claimant.
Nevertheless there was a considerable level of misunderstanding between the parties as to the precise terms on which redeployment was offered and accepted. One side believed that the redeployment was offered on a trial basis whist the other side believed it to be final and definitive.
The minutes of meetings and exchange of correspondence surrounding the exact terms of the offer and acceptance of the redeployment in May 2006 are insufficiently precise to enable the Court to determine the actual date on which the HSE’s efforts to rehabilitate the Claimant ended and its efforts to redeploy her commenced.
The decision of the HSE, on the direction of the Regional Director of Operations, to investigate any further redeployment opportunities available and the subsequent decision to appoint the Claimant to a Clerical/Admin post on her nursing salary, on a personal -to -holder basis, at a rate substantially higher than the Grade III rate applicable to the post she had previously been redeployed to in May 2006, further complicates matters.
The net result of these misunderstandings was that for almost twelve months the Claimant was without any income from either her employer or the State at a time when she was available for work and willing to return to any suitable post for which she was fit within the HSE.
In all the circumstances of the case the Court believes that the Rights Commissioner’s award of €25,000 was fair and reasonable.
The Court therefore upholds the award of the Rights Commissioner for the reasons set out above.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
19th May 2010______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.