Complainant

Respondent

Anonymised Parties

Nurse

Health Provider

Representatives

Lorraine Monaghan Irish Nurses and Midwifery Organisation

Eamonn Ross, Kieran Williams

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 NurseHealth Provider

CA-00003957-001

20/04/2016

The Complainant is a Public Health Nurse since 2005. She is paid €54,426 per annum. She has claimed that she was treated unfairly and has sought the reinstatement of her sick leave entitlement, compensated for loss of earnings, that her pension entitlements are protected and that she is compensated for the stress caused.

Alcohol became a problem for the Complainant in June 2011. She presented for work on 27^th June 2011 under the influence of alcohol. When confronted by management she admitted to this. She was put off work and referred to the Nursing and Midwifery Board of Ireland for a ‘Fitness to Practice’ inquiry. She accepted her diagnosis as an alcoholic and underwent treatment. She completed all courses on offer and has been in recovery since mid-2011.The Fitness to Practice applied a number of conditions, complete treatment programmes, provide evidence of her progress on a 6-monthly basis, remain under the supervision of her GP and comply with monthly testing for recent and long term ingestion of alcohol for a 2 year period.

Prior to her return to work on 13^th November 2012 her Director of Nursing sought that she sign in with her line manager on a daily basis to be assessed. Upon her return to work she was treated differently than her colleagues and management had breached confidentiality and openly discussed her situation. Her colleagues were required to report any concerns to management. She was over supervised. On 7^th January 2015 she was asked if she had taken any substance that may have impacted on her current behaviour. She was asked to stay off work until they received advice from Occupational Health. Her monthly GP blood check was clear. She underwent psychiatric assessment in St Patrick’s on 1^st April 2015 which found that she did not show any evidence of active addiction issues. On 16^th April 2015 Occupational Health recommended “return to work in a full time capacity and without restriction “. It went on to say “There is no medical reason why she cannot provide a regular and effective service and I believe that any monitoring or otherwise of her condition from an Occupational Health perspective should discontinue“. She was being kept off work without reasonable cause. She wrote to management about this and advised them that she was subjected to ongoing accusations and harassment. On 29^th April 2015 the Director of Nursing wrote to the Nursing & Midwifery Board advising that she “had presented for work in an altered state” on a number of occasions and was incapable of performing her duties. On 7^th May 2015 she wrote to HR concerning a reduction in pay. The union wrote o HR on 22^nd May and 8^th June 2015 seeking a meeting. On 26^th June 2015 the Director of Nursing and the Area Operations Manager wrote to advise that they were invoking the disciplinary procedure and stated that if she denied being under the influence of alcohol on 7^th January 2015 they would investigate the matter. She was advised that she could resume work on 6^th July 2015 subject to certain conditions: confined to base, move to a different base, daily meeting with management and periodic random intoxicant testing for 2 years. The INMO took issue with this and again advised that her pay had been stopped on 17^th July 2015. A Stage 3 Grievance Procedure took place on 17^th August 2015. The outcome was that she was to be paid for the period 8^th January to 26^th June 2015 and the sick pay was to reflect that. The union wrote regarding the grievance decision and rejected the offer of pay cut off seeking an immediate payment without prejudice. On 16^th October 2015 the management confirmed it as willing to pay back pay but would not discuss the return to work conditions. The union wrote regarding these conditions and sought a meeting also advised that no pay had been received. It was paid in late December 2015. The union wrote on 17^th, 23^rd and 30^th November regarding these conditions to return to work. Correspondence ensued in December, January, February, March and April regarding the terms of reference for the investigation and the return to work issue. A meeting finally took place on 6^th April 2016. The union sough the period out of work would be treated as paid time as she was available to work but not let return. On 13^th April management replied that their position had not changed and her return to work was dependent on her agreeing to a period of testing for two years from her re-commencement date. Management also advised as no medical certificate was supplied they could not process any payment. Management advised that they may look at the 2 year testing period and advised that the medical certificates were not compliant with policy. Her GP in November 2016 certified that she showed no signs of alcohol use and the testing should be discontinued. The union continued to seek payment while she was out of work. Management eventually paid €1,000 as an interim payment on 15^th February and the remaining sick pay was paid out on 23^rd February. The Complainant submitted a Statement of Consent agreeing to randomised tests up to the issuance of the investigation report. This was accepted and she returned to work on 29^th March 2017 on a phased basis.

It is her position that management never accepted that she is in recovery. They have failed to support her in her disability. They breached confidentiality by speaking to colleagues and asking them to report any suspicions. Management has been extraordinarily slow in processing any of the issues that relate to this case. She has remained out of work for over two years unnecessarily. She co-operated with request of monitoring. In April 2015 she was approved by Occupational Health to return to work. This was ignored by management. In November her GP wrote to the Respondent to state that she shows no signs of alcohol use and that its several years since she had alcohol problems and that testing should be discontinued. Management were aware of her acute financial problems and yet continued to delay payments. Her pay was reduced to half pay for 3 months in 2015 and she received no pay for all of 2016 up to 29^th March 2017.She is seeking compensation for loss of income, reinstatement of holiday entitlement and her pension protected. She is also seeking compensation for the stress caused.

Summary of Respondent’s Case:

On 7^th January 2015 an incident took place in which management took a view that the Complainant attended work under the influence of alcohol. She was sent home from work. She has been on sick leave since until her return to work on 29^th March 2017. She raised a grievance and it was arranged to have it heard under stage 3 of the procedure. An investigation into the incident on 7^th January 2015 was also taking place. A grievance was heard on 17^th August and a decision issued on 2^nd September 2015. A number of efforts have been made to have the Complainant return to work but have been unsuccessful until 29^th March 2017. The main block was that management insisted for clinical risk and safety reasons that she submit to randomised blood tests. She eventually agreed to this and returned to work on 29^th March 2017.

Prior to the issue of 7^th January 2015 she had ben censured by the Nurses and Midwifery Board. When the incident occurred on 7^th January 2015 they contacted her next of kin and arranged to have her taken home. This is now the subject of an investigation. Management were so concerned with this incident that they insisted that she attend occupational health before any return to work and submit to randomised blood tests. Following her grievance it was agreed to pay her for her loss of earnings between 7^th January and 26^th June 2015 when she was due to return to work. The decision to insist on blood tests was on the basis of clinical risk and patient safety. She already had been on a programme of medical supervision for substance dependency and this censure has not been lifted to date. Her loss could have been minimised by accepting the management conditions in June 2015. Management are committed to reviewing the period of randomised blood testing following receipt of the investigation report. She could have minimised her loss had she been willing to accept in June what she accepted in March 2017.

The management reject that any stress or suffering was caused by their actions. She could have returned to work and accepted the reasonable proposals of management.   Any actions or decisions taken took into account the clinical risks that were posed by the complainant.

I note that an incident occurred on 27^th June 2011 which led to the confirmation that the Complainant was diagnosed as an alcoholic.

I note that the Nurses and Midwifery Board of Ireland applied a number of conditions as part of their Fitness to Practice inquiry outcome. These were treatment programmes, supervision by her GP and blood testing for a 2 year period, which she adhered to.

I note that she returned to work on 13^th November 2012 but was required to sign in on a daily basis to be assessed by management.

I note that on 7^th January 2015 management had concerns that she may be under the influence of substance, she was sent home and the advice of Occupational Health was sought.

I note that her monthly blood tests were clear, she was assessed in St Patrick’s and no evidence of active addiction was found. Occupational Health examined her and stated that she could “return to work in a full time capacity and without restriction“ also “There is no medical reason why she cannot provide a regular and effective service and I believe that any monitoring or otherwise of her condition from an Occupational Health perspective should discontinue“.

I note that she did not return to work and the Respondent set up an investigation into the 7^th January incident and this investigation has not been completed as yet.

I note that the Respondent advised that she could return to work on 6^th July 2015 subject to the following conditions: confined to base, move to a different base, daily meeting with management and periodic random intoxicant testing for 2 years.

I note that the Complainant refused to accept these conditions and she remained on sick leave and a form of “stand-off” continued. Eventually she accepted these conditions and she returned to work on a phased basis on 29^th March 2017.

I believe that the Respondent had genuine concerns on the 7^th January 2015 and they were correct to take steps to protect her and her clients.

However I find that there was no evidence following her blood tests and medical examinations to give cause for any concern.

Therefore I find that she should have been allowed to return to work without any additional conditions.

I find that the stand-off that ensued was unacceptable from both parties.

I find that the Complainant could have returned to work and operate the imposed conditions under protest if necessary so as to assuage the Respondents concerns.

It is regrettable that it took to 29^th March 2017 for this to happen.

I find that it is unacceptable that the investigation into the incident on 7^th January 2015 should not be completed yet. Far too much time has been spent on agreeing terms of reference, methodology of the investigation and putting in place investigators.

I find that both parties have to accept blame regarding this. However the Respondent must drive this situation and be seen to deal with it with a degree of alacrity.

Nevertheless I find that there has to be a shared responsibility regarding this whole matter.

Recommendation:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.]

Sick pay