ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00005136

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 06/01/2017

Workplace Relations Commission Adjudication Officer: Caroline McEnery

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

This case is between a nurse and a care facility for people with disabilities. The legislation is a claim in relation to section 13 of the Industrial Relations Act, 1969. The matter in dispute is in relation to the Complainant not receiving preferential illness benefit in relation to a HSE directive related to MRSA illness related absence. The Complainant was at a loss of 3 weeks illness benefit as a result which affected her earnings and her subsequent pension as she has since retired. The HSE directive is a letter dated 30^th November 2006 which outlines the specific arrangements associated with the agreement.

Complainant’s Submission and Presentation:

The Complainant stated that as per the HSE’s Directive of 30th November 2006, the national agreement states that where it is not possible to redeploy an Complainant who may be affected by MRSA, that this will require, on occasion, that the Complainant is excluded from work. Where this is the case, the following sick pay will arrangement will be put in place:

• Full pay for the first 6 months of absence

• ¾ of full pay for the second 6 months

• ½ of full pay for the third 6 months

The Complainant, on the advice of her GP, took a period of approximately three weeks sick leave to eradicate a severe MRSA infection prior to surgery. The care facility have refused to pay the preferential sick pay for this three week period of sick leave. This resulted in the loss of approximately three weeks of full pay with the consequent loss of pensionable service and a reduced pension as the Complainant had used up her full sick pay entitlement at that stage.

The Complainant retired on 10th December 2016 with 31 years’ service with the care facility.

The Complainant is a Registered Nurse who has worked in the care facility since 1985 up to December 2016.

In December 2015, the Complainant was diagnosed with MRSE during a process of preparation for surgery on both of her hands. The surgery could not proceed until the MRSA was eradicated as serious complications could arise.

An occupational health report from February 2016 acknowledged the concerns of the Complainant in work being the source of the ongoing MRSA infection and the impact on her in the delay in completing treatment prior to her surgery. It was advised by occupational health that the employer provide a low risk MRSA environment.

In February 2016, despite two episodes of anti-microbial treatment while working, the MRSA did not clear so the Complainant, under advice from her GP, had to take sick leave to eradicate MRSA in advance of her surgery from 8th February until 3rd March 2016. The employer included this period of sick leave as normal sick leave instead of separate preferential arrangements in place since 2006.

The MRSA was cleared in this three week timeframe away from work. The Complainant therefore went on to immediately have her surgery, returned to work in mid-July 2016 but was off the payroll due to the expiry of her normal sick leave from 12th May 2016.

In May 2016, the Complainant sought that her employer would ensure that the period of sick leave to treat the MRSA was covered under the separate preferential arrangements for nurses. The employer advised in correspondence dated 19th August 2016 that the specific period is not covered by the national agreement as the absence was not as a result of a severe infection and that the line manager was not of the view that absence from work was a necessity.

Subsequently, the INMO wrote to the employer seeking payment of the preferential sick pay arrangements from 8th February to 3rd March 2016. The INMO advised in the correspondence that the period of sick leave was taken on the grounds of medical advice and that where nurses are advised to stay out of the work place due to MRSA that the arrangements within the letter of agreement will apply. This letter of appeal was rejected.

The care facility did not offer the Complainant an alternative low risk MRSA environment despite making references to that option. The Complainant therefore had no alternative but to comply with the advice of her doctor and take sick leave to treat her MRSA condition prior to her surgery.

The preferential sick pay arrangements provide that where it is required to exclude staff from work that it will not impact on normal sick pay. The employer, they allege in this instance, and unlike all other similar employers in the health service, refuses to treat this sick leave on a preferential bases. This has resulted in the Complainant being forced to forfeit three weeks of her normal sick pay to treat an MRSA infection and losing three weeks wages as a result as she was taken off payroll from May to July 2016 while recuperating from her surgery. They allege this treatment by the employer is in breach of the national agreement.

As a result of having to take sick leave under medical advice to treat the MRSA infection, the Complainant lost three weeks’ pay and three weeks’ pensionable service. This also had an impact on pension calculations after 31 years of honourable service. They asked that the employer must honour the national arrangements for sick leave resulting from MRSA and pay the correct sick pay monies.

The Complainant in advance of undergoing essential surgery on both her hands was screened for MRSA as part of the normal pre-operative assessment and was found to require treatment to eradicate it prior to the operations. Two separate episodes of treatment while still at work were unsuccessful. On medical advice from her GP, the Complainant took sick leave for a period of three weeks to undertake a third repeat treatment which was successful. They allege preferential sick pay arrangements should have been applied by the care facility for this period so as not impacting on the normal sick leave entitlement of the Complainant.

Respondent’s Submission and Presentation:

The Respondent stated that the Complainant is seeking payment for a period of absence under the Respondent’s sick pay scheme. It is the Respondent’s contention that the Complainant was not eligible for payment under this sick pay scheme for the reasons as set out below.

The care facility is a voluntary organisation founded to care for people with disabilities.

The Complainant worked as a staff nurse with the Respondent from June 1985 until her retirement on 10th December 2016.

The claim relates to the period from 8th February 2016 to 8th March 2016 when the Complainant absented herself from her place of work. She provide the Respondent with certs from her GP stating that she was unfit to work due to being MRSA positive prior to surgery.

Prior to this however, the Complainant had advised her manager that although she had tested positive for MRSE in a pre-op assessment for writ surgery for carpel tunnel syndrome, she posed no risk to the Respondent service users or herself and continued to work without issue and without presenting any medical certs to state that she was unfit to do so.

Immediately prior to this period of absence she had two out of three clear swabs. However the third one was positive and her surgery was cancelled as a result. In a further discussion with her nurse manager at that time, she advised her that she was very disappointed with this result and would prefer to remain off duty until she had the requisite three clear swabs and could proceed with her surgery.

She then absented herself from her place of work and presented the certs as referred to above for the period 8th February 2016 to 8th March 2016.

The Complainant subsequently sought payment for this period of time and in response a letter was sent to her dated 16th May 2016 outlining the terms of the Company sick pay scheme.

As the Complainant had exhausted her sick leave entitlement under the terms of this scheme she was not entitled to payment for the period of time in question.

On 31st May 2016 the Complainant provided the Respondent with a copy of a HSE directive in relation to MRSA infection and sought payment under terms of same.

It is the Respondent’s contention that this directive clearly does not cover the circumstances of the Complainants absence and that she is also not entitled to payment for the requisite period under this directive. The definitions as set out therein clearly distinguish between a carrier of MRSA, Colonisation by MRSA and Infection with MRSA. It goes on to state in the second page thereof that:

Staff who are carriers of MRSA or are colonised by MRSA are fit for work but would be restricted from working in specific areas on the advice of risk assessment by the Infection Control Team. While it is possible to re-deploy most staff, there will on occasions be requirements to exclude staff from work based on infection control advice. In such situations staff will be advised to stay off work until clear. Where this is the case, the following arrangements will be put in place to facilitate sick pay arrangements:

• Full pay for the first six months of absence

• Three quarters of full pay for the second six months

• Half of full pay for the third six months

On this occasion there was no requirement to exclude the Complainant from work based on infection control advice and she was not advised to stay off work until clear. She made a personal decision to absent herself from the workplace. The nurse manager advised her that there was no evidence whatsoever that any of the residents in the facility where the Complainant worked had MRSA, none of them had presented with any signs or systems of same. Notwithstanding this, the nurse manager offered the Complainant the opportunity to work in another facility at the same site. However, the Complainant declined and chose to absent herself from work.

The Respondent’s position is set out in a letter to the Complainant dated 19th August 2016.

The Respondent also sent the Complainant for assessment to Medmark on 16th February 2016 and this report states “There is no evidence to suggest a work related source of MRSA in this case. However, the Complainant is concerned that her current source of MRSA originated from work. In my opinion she is not precluded from working at present. However, I acknowledge her concerns in relation to clearing her current MRSA issue and potentially coming to contact with potential MRSA sources in the workplace. It would be reasonable to exclude her from clinical work involving open would management or coming into contact with unwell patients. However, caring for patients should not be an issue. Ideally, she would not be involved in preparing food, however, she can supervise and feed clients provided she used good hygiene methods.”

The Employer alleges that the Complainant had exhausted her sick leave entitlement under the company sick leave scheme as set out in the letter to her of 16th May 2016. She sought to have this period brought under the remit of the HSE directive relating to MRSA infection. However, it is quite clear that the Complainant does not come with the remit of this scheme as she was not infected with MRSA and was a carrier only.

• Her Nurse Manager was satisfied that none of the residents were infected and she offered the Complainant re-deployment which she declined.

• The Medmark report further corroborated this position.

Decision:

Issues for Decision:

It is for the Adjudicator to decide if this absence fell within the agreement in place and if this Complainant was entitled to the preferential illness benefit per the HSE agreement dated 30^th November 2017 in relation to MRSA illness related absence.

Legislation involved and requirements of legislation:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 13 (2) of the Industrial Relations Act, 1969 provides:

Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.

Section 13 (3) of the Industrial Relations Act, 1969 provides:

(a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—

(i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and

(ii) notify the Court of the recommendation.

(b) A rights commissioner shall not investigate a trade dispute—

(i) if the Court has made a recommendation in relation to the dispute, or

(ii) if a party to the dispute notifies the commissioner in writing that he objects to the dispute being investigated by a rights commissioner.

Decision:

To be eligible for the preferential illness benefit per the HSE agreement dated 30^th November 2017 in relation to MRSA illness related absence the Complainant must meet the criteria set down related to it. The agreement states:

“While it is possible to re-deploy most staff, there will on occasions be requirements to exclude staff from work based on infection control advice. In such situations staff will be advised to stay off work until clear.”

In this case the Complainant did not work in a high risk work environment in relation to MRSA notwithstanding this she was offered low risk work in another location i.e. alternative work but she decided that it would be better to stay out of work in case the MRSA infection was caused by her work environment. This is not backed up by the company Doctor who stated in his report that she was fit for work once she was not exposed to a high risk environment. The terms of the scheme only apply if she is required to stay out of work due to the terms of the scheme and if there is no alternative work available. This was not the case here and even though the Adjudicator empathises with this Complainant who was looking to get clear of MRSA for her surgery she does not meet the terms of this scheme therefore her claim fails.

Dated:   20/03/2017