ADJUDICATION OFFICER RECOMMENDATION

 Adjudication Reference: ADJ-00009010

    ComplainantRespondentAnonymised PartiesA NurseA Healthcare Service Provider   Representatives Irish Nurses and Midwives Organisation  

Dispute:

ActDispute Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 CA-00011881-001 13/06/2017   Date of Adjudication Hearing: 11/10/2017 Workplace Relations Commission Adjudication Officer: James Kelly

Procedure:

In accordance with Section 13 of the Industrial Relations Acts 1969 following the referral of the disputes to me by the Director General, I inquired into the disputes and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the disputes.  

Background:

The complainant is a registered nurse and was employed as a Staff Nurse who, following referral to Occupational Health, was redeployed to a Clerical Officer post. She is seeking to maintain her Staff Nurse salary, terms and conditions in the Clerical Officer post on a ring-fenced, personal-to-holder basis, in order that she suffer no disadvantage, financially or otherwise, for being reassigned to the Clerical Officer post on Occupational Health grounds. The respondent claims that it had provided the complainant with the necessary accommodations to allow her remain in the workforce. However, she is not carrying out the duties of a Staff Nurse, she is working as a Clerical Officer and should hold the salary, terms and conditions of that grade for the sake of fairness.

Summary of Complainant’s Case:

The complainant qualified as a General Nurse in 1998 and having spent some time abroad she returned to take up a Staff Nurse role in April 2002. She worked in a number of different nursing roles until late 2013 when she was referred to Occupational Health by Management due to sick leave stress. She spent some time off sick and her representative wrote to the respondent in April 2014 seeking to meet about the complainant’s return to work as she was deemed fit to return to work in February 2014. A meeting was held with a view to getting her back to work in one of two possible named locations. However, neither of these positions materialised. The complainant’s representative wrote again on 11 June 2014 looking for an update, and a meeting was arranged for 27 June 2014. The complainant claims that she was now out of work for 5 months and had been deemed fit to return. At the meeting the complainant claims that the respondent suggested that she could consider redeployment as a Healthcare assistant or a Clerical Officer for a three-month trial and in line with the Occupational Health’s recommendation on suitability. It was agreed that the complainant could keep her Staff Nurse salary, terms and conditions for the duration of the three-month trial period if she took up one of these options. She took up the post as a Clerical Officer and it was her expressed view that this arrangement “was not necessarily a long-term solution” and she hoped that she would return to a Nursing post in the future. The designated Clerical Officer post was assessed by the respondent’s Occupational Health Doctor and following slight concerns on certain aspects of the post it was finally declared as suitable and the complainant took up the post on a trial basis on 20 August 2014. The complainant’s representative wrote to the respondent on 15 October 2014 and again on 4 November 2014 seeking that should the complainant continue to work in the Clerical Officer role that she “…continue to be paid on her Staff Nurse salary scale, with Nursing terms and conditions… into the future”. The complainant claims that the respondent replied that it would appear that the complainant is doing well in the Clerical Officer post but as the maximum pay point on the Staff Nurse pay scale is set at some €6,500 more than the maximum pay point on the Clerical Officer pay scale, the complainant will need to revert to the Clerical Officer pay scale on the 31 December 2014. This date passed and nothing changed, she remained on the Staff Nurse salary, terms and conditions. The complainant claims that in December 2016 the respondent’s HR Manager wrote to her representative and sought a meeting to discuss her “current and future role with us here …” and due to one reason or another the meeting was not held until 31 March 2017. The complainant claims that further to this meeting it transpired that the respondent reaffirmed its position that the complainant would “… be re-classified, on a permanent basis, as a clerical officer with effect from Monday 3 July 2017”. The complainant claims that through no fault of her own she was reassigned to a Clerical Officer post from August 2014 on Occupational Health grounds. She claims that to place her now on the Clerical Officer salary, terms and conditions would be detrimental to her financially and otherwise and it would, in effect, penalise her for having needed support due to Occupational Health issues. The complainant maintains that since her reassignment to the Clerical Officer post she has already missed out on the potential financial benefits others in the Nursing grade would have access to i.e. “shift premiums”, “overtime options”, etc. and she claims that she cannot sustain a further financial reduction to her salary. The complainant presented the calculation of the immediate reduction to her salary and noted that her future pension and lump sum calculation would also be effected. The complainant has asked that her employers size and resources be taken into consideration as it has the financial capabilities to carry a small cost in its terms, but a significant financial cost for her. The complainant has asked that she be maintained on the Nursing salary scale, and the terms and conditions of employment into the future on a ring-fenced, personal-to-holder basis in order that she suffers no disadvantage for being reassigned on Occupational Health grounds.  

Summary of Respondent’s Case:

The respondent accepts that the complainant commenced employment in August 2000 as a temporary/locum Staff Nurse and was appointed to a permanent post in July 2006. The respondent also agrees that the complainant was on certified sick leave with pay from 27 January 2014 to 18 August 2014 and on her return to work was reassigned to a clerical/administrative post as a result of restrictions due to health issues and further to Occupational Health’s advice. This assignment was initially a trial period of 3 months where the complainant held her Staff Nurse salary, terms and conditions. The respondent stated that the complainant has certain limitations in relation to the type of workplace that she can be assigned to and requires significant supports to facilitate her to remain in employment. The respondent presented a comprehensive list of supports that the Consultant Occupational Health Physician recommended for this purpose. The respondent claims that since there are no suitable nursing posts available that would meet the complainant’s needs and having explored the different but limited options available to her, she indicated a preference for the Clerical Officer post to allow her return to work. The respondent claims that the complainant seemed to have adjusted well to the new position. It refers to her representative’s letter of 15 October 2014, to the respondent where it confirmed that the complainant is happy in the Clerical Officer role but concerned about her long-term salary, terms and conditions. The respondent claims that it advised the complainant that should she continued to work in the Clerical Officer post she would have to revert to the relevant salary and terms and conditions. There was a number of meetings to discuss same and it was the respondent intention to place her on the Clerical Officer (grade 3) salary and terms and conditions should she remain in the post after the 3-month trial period. The respondent claims that the complainant remains in the post and is working there at present. However, the respondent claims that due to an administrative oversight it did not change the complainant’s salary or her terms and conditions as it had indicated. This error was noted and the complainant’s representative was contacted in December 2016 and asked to meet it to discuss same. Following a final meeting in March 2017 the respondent confirmed that it now sought to remedy this oversight and advised the complainant that it now intended to make that change, which was to take effect on 3 July 2017. The respondent maintains that following the complainant’s decision to appeal this decision and, ultimately refer the case for recommendation to the Workplace Relations Commission, it had decided not to change the complainant’s salary or her terms and conditions until the process had concluded. The respondent maintains that the complainant was originally appointed as a Staff Nurse but is unable to carry out that role or the functions associated with the role. The respondent claims that in an effort to facilitate her return to work it was able to reassign her to the role of Clerical Officer. The respondent claims that it is only fair that the complainant’s salary, terms and conditions relate to her post. The respondent claims that the complainant should not be entitled to better terms and conditions to other staff carrying out the same or similar duties. The respondent claims that it has involved the complainant in all the discussions to date and allowed her partake in choosing her reassignment. The respondent claims that the complainant has asked that she retain her Staff Nurse salary, terms and conditions on a ring fenced, personal-to-holder basis as she was reassigned on Occupational Health grounds. However, it is the respondent’s position that there is nothing unique about this case, the complainant was reassigned as she is not able to carry out the role or functions associated with the Staff Nurse grade and it was able to accommodate her in the Clerical Officer role. The respondent claims that the complainant was aware of its intentions to reclassify her as a Clerical Officer and accordingly, amend her salary, terms and conditions in line with her role back in 2015 and it was an oversight that this change did not happen then. The respondent has decided not to look to recover what could be described as an overpayment from that time until now. The respondent has asked that the complainant’s claim be dismissed on the basis of the reasons mentioned above.  

Findings and Conclusions:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation to the parties setting forth my opinion on the merits of the dispute. Having heard all the evidence presented by both sides and in particular the very useful submissions prepared by the parties, I am satisfied that the dispute between the parties in relation to the complainant remains unresolved satisfactorily from the complainant’s perspective now that the respondent has made it known of its intention to reclassify the complainant on to the salary, terms and conditions of a Clerical Officer (Grade 3). I am satisfied that the complainant has sought in what could be construed as reasonable accommodation from the respondent to enable her to get back to work in August 2014. It is clear that after positive engagement the Clerical Officer post was offered to the complainant as a real opportunity for her to return to work and based on Occupational Health advice. It would appear that the complainant would prefer to be able to work as a Staff Nurse. However, it is clear that that role would have substantial responsibilities which may go against the Occupational Health advice and may result in undoing the good that has been reported during the time in the Clerical Officer role heretofore. The complainant’s representative was not in favour that the supports that Occupational Health has recommended be submitted to me at the hearing. However, I would think that this is an important piece of information for a decision maker to have sight of before a recommendation is made. Ultimately my decision could result in recommending something that could lead to unfortunate consequences down the line for the complainant and/or the respondent. I have omitted the list of supports required from this recommendation. However, suffice to say, I am satisfied to note that the list of Occupational Health recommendations needed, supports the respondent’s assessment that the complainant is not in a position to carry out the demanding duties of a Staff Nurse at this time. I note that the possible change in terms and conditions from Staff Nurse to Clerical Officer would have a notable financial impact on the complainant to the loss of approx. €6,500 gross per year and this amounts to a reduction of just under €250 gross per paycheque per fortnight. However, on the other hand I note that the complainant would benefit by an additional day’s leave in the year and there would be reduced working hours from 39 hours per week to 37 hours, which would amount to 4 hours less per fortnight and approx. 104 hours in the working year, which would in some way make up for the financial loss. As this is a dispute under Section 13 of the Industrial Relation Act I am not bound by nor do I propose to rely on any other piece of legislation as an authority. However, for guidance, I have looked at what is required by the employer under Section 16 of the Employment Equality Acts in relation to reasonable accommodation, to see the nature and extent of an employer's obligations in certain cases. What is clear is that at subsection 16(1)(b) it states that nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed. Section 16(3) sets out the concept of reasonable accommodation and there is a plethora of case law establishing the concept and the obligations on the employer. I have noted how the respondent has dealt with the complainant’s needs and the sensitivities of her situation and I have to commend it for its approach heretofore. I am mindful that the complainant has found herself in an unfortunate situation and is not presently in a position to carry out the role that she has studied and trained for. I understand that there would be added pressure on losing the Staff Nurse’s terms and conditions and, in particular, salary. However, this would be more difficult if she was not able to return to work at all. Here again I must note that her employer has stood by her and has provided for her with the supports to get her back to work within the confines of her Occupational Health needs. The Clerical Officer job she is currently doing is somewhat less onerous to her previous role as a Staff Nurse and the salary, terms and conditions reflect that. I am satisfied that it is the position that suits her needs best at the moment and I would deem that she should receive the same salary, terms and conditions as the other workers carrying out the same or similar job. I have considered the size and financial capacity of the respondent as requested by the complainant. However, as the respondent is primarily State funded I need to be mindful of the correct use of public funds.    

Recommendation:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute. Therefore, I deem that the respondent is correct and reasonable in its decision to expect the complainant, who is employed as a Clerical Officer, to hold the terms and conditions of a Clerical Officer and not that of a Staff Nurse. I have heard that the respondent said that it erred in not transferring the complainant over to the Clerical Officer pay scale back in December 2014. However, it does not intend to try to recover the additional wages paid. I would fully support that decision in this particular circumstance. Finally, I note that this recommendation will have financial implications for the complainant and as a gesture of goodwill to lessen the blow I would recommend that the complainant not be reverted to the Clerical Officer’s salary, terms and conditions for at least 2 months from the date of this recommendation.   Dated:   18.12.2017 Workplace Relations Commission Adjudication Officer: James Kelly Key Words: Industrial Relations Acts - Staff Nurse - salary, terms and conditions – reclassified as Clerical Officer