Complainant

Respondent

Anonymised Parties

Health Care Assistant

Health Service Provider

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

CA-00019786-001

14/06/2018

The union set out a chronological account of the claimant’s employment history with the respondent. The claimant had over 20 years service and was employed in the Orthopaedics Dept. up to Sept. 2016 – at this location he had the opportunity to undertake week end work (approx. 16 per year) which attracts premium payments. It was submitted that since being redeployed to Radiology in December 2016, the claimant had no opportunity to avail of hours attracting premium payments. The trigger for this move was an Occupational Health Assessment in Sept. 2016 relating to a back injury. The claimant was immediately removed from site and was prevented from returning to work for 12 weeks – it was contended that owing to the intervention of the union , the claimant was paid for this period.

It was submitted that as far as the claimant was concerned the financial implications of the move to radiology was not made known to him and he was not fully consulted on the matter.

It was submitted that Occupational Health issued a letter of clarification to the respondent on the 12th.October 2016 stating that the claimant’s back problem did not necessitate the claimant’s immediate removal from his job and that he could continue to work without injury to himself or others until such time as an alternative position was found. It was submitted that provided an opportunity to review the claimant’s situation going forward. It was contended that the onus was on management to ensure that any change in terms and conditions of employment are presented clearly and in a manner that leaves no room for later misunderstandings. It was submitted that the respondent failed in this regard, that there was no s no written agreement on the move and the claimant was adamant that he was not told he would suffer a substantial loss of earnings in accepting the move to Radiology.

It was submitted that the respondent failed in not facilitating a planned exit for the claimant which could have been realised over time and with full input from the claimant t was contended that the fact that the matter of loss of earnings was not clearly agreed was unfair and unreasonable to the claimant. The claimant was seeking to have his loss of earnings addressed retrospectively and on an ongoing basis.

In his direct evidence the claimant expressed how aggrieved he was with being put off work so suddenly and contended that at the case conference which lasted for 20 minutes management failed to point out that he would be incurring a loss in excess of €3,000 per annum by moving to Radiology. The claimant stated that at the time he was exhausted trying to get back to work and would have taken any job   and perhaps later pursue any issues that might arise.

1.0 Complaint

The claimant’s complaint pertains to claim for loss of premia earnings arising from HSE support of his medically recommended required reassignment, in December 2016, to role in Radiography Department at the respondent’s Hospital.

2.0 Background of the Case

2.1 The claimant is employed as a Health Care Assistant in the respondent’s Hospital and in 2016 was assigned to Orthopaedics Department. The claimant had suffered from ill health over previous years (Appendix 1 – Sick Leave Record) and was attending HSE Occupational Health Physician to support his medical needs

2.2 In September 2016, the claimant’s Line Manager received an Occupational Health Report dated 7/9/2016 (Appendix 2) advising that the claimant was “permanently unable to bend or stoop” with OH Physician advising that she did not consider “that he is fit for role of HCA Orthopaedics”.

2.3 On day OH Report was received the claimant was on active duty in Orthopaedics Ward and Line Manager contacted HR Manager for advice.

2.4   Given the medical recommendation that the claimant was deemed permanently unable to undertake the full role of HCA in Orthopaedics, HR Manager advised to meet with the claimant, confirm receipt of OH Report and request that the claimant be released from duties until further examination of medical recommendation be undertaken. This was to ensure Health and Safety responsibilities to the claimant, patients and work colleagues was protected.

2.5 HR Manager subsequently spoke to the claimant to confirm safeguarding actions taken. HR Manager confirmed that, as the claimant had limited paid sick pay quota remaining and the unexpected receipt of Occupational Health recommendation while the claimant was in active duty, the respondent was extending full paid Special Leave pending clarification of OH recommendation.

2.6 On September 28th 2016, the claimant and his Trade Union Representative met with HR Manager. The claimant stated that he was not in agreement with OH Physician’s recommendation and was requesting a further medical review to clarify same. HR Manager confirmed that she would request earliest possible meeting to accommodate same and again confirmed that full paid Administrative Leave would continue to be applied to the claimant pending resolution of the issue with Occupational Health.

2.7 On October 19th 2016, the Hospital received an updated Occupational Health report (Appendix 3). This report was to clarify medical recommendation of 7/9/16 advising that from medical perspective, the OH Physician advised “that continuation in the Health Care Assistant role for a matter of months, whilst an alternative role is identified, will not pose any acute risk to the claimant or to others”.

2.8 HR Manager confirmed to the claimant that as bending and stooping are core requirements for the role of Health Care Assistant, that the Hospital were trying to identify a modified role which could safely accommodate the claimants’ requirements.

2.9 A Case Conference with Occupational Health Physician, the claimant, his Trade Union Representative, Director of Nursing, Assistant Director of Nursing and HR Manager was undertaken on December 12th 2016. (Appendix 4)

2.10 At this case conference, Nurse Management clarified that, as directed by Occupational Health Physician recommendation, an alternative HCA role in Radiography Department was identified as only current identifiable position that could accommodate the claimant’s required medical supports.

An overview of the role and duties was collectively discussed. The claimant confirmed he was familiar with Department as he had previously worked in this Department.

Both he and Occupational Health Physician agreed that this proposed position would be acceptable to accommodate the claimant’s medical needs. It was collectively agreed to review this position after a period of time.

At this meeting, the Director of Nursing clarified that the HCA role in Radiography Department was a rostered 5/5 position (Mon-Friday) and accordingly no premia rate hours formed part of this roles. The claimant again confirmed his familiarity with the role as he had previously worked in the Department.

It was agreed that the claimant would contact Assistant Director of Nursing to agree a start date as soon as possible.

2.11 The claimant resumed duty in the Hospital on December 15th 2016.

2.12 In July 2017, the claimant through his Trade Union Representative, escalated issue regarding loss of earnings arising from his supported reassignment to HCA Role in Radiography which was not rostered outside of core Monday to Friday roster and hence no premia hours worked.

The Director of Nursing responded on 27th July 2017 (Appendix 5) confirming the claimant’s agreed redeployment to the Radiology Department to facilitate his return to work. The Director of Nursing clarified that premium payments are available to the claimant if he works shifts which attracts such payments confirming that the organisation cannot pay staff shifts they do not work or may not work into the future.

2.13 In August 2017, HR Manager sought Occupational Health Physician review of the claimant’s condition since case conference meeting noting the claimant’s experience of 4 further periods of sick leave since taking up this supported role (Appendix 6) and also seeking advice on the claimant’s fitness to resume to his previous HCA role (where opportunity to work premia hours would be available to the claimant).

2.14. Occupational Health Report dated 22/11/2017 (Appendix 7) advised that the claimant’s medical condition are ongoing ..and is permanently unfit for frequent or repetitive stooping or bending and that he is fit for his current role (in Radiography Department) but is unfit for his former role on the wards.

3.0 Respondent’s Position

3.1 The Hospital have extended every available support to the claimant to accommodate his medical needs.

As the claimant had very little sick pay benefit quota remaining at the time of medical recommendation in September 2016, the respondent extended full paid Special Leave for period September 22nd 2016 to December 14th 2016, pending the identification of recommended modified HCA role and collective agreement of this post with the claimant and Occupational Health in December 2016.

3.2 The claimant was not reassigned to a 5/5 post at the request of the respondent but was supported – with his agreement- to HCA post in Radiography Department

which was only current available role to support his medical needs.

3.3 The Hospital continue to support the claimant and if the claimant is certified as being fit for another HCA role (which attracts premia payments) this will be reviewed.

4.0 Conclusion

4.1 In light of the above, I request the Adjudicator to reject the claimant’s complaint.

I have reviewed the evidence presented at the hearing and noted the respective position of the parties. While I acknowledge the extent to which the claimant is aggrieved with the manner in which he was put off duty , the focus of this complaint is a loss of earnings claim. I further acknowledge that notwithstanding the manner in which the move was handled the respondent has acted reasonably in effecting the redeployment of the claimant.

On the basis of the evidence presented and given the absence of a record/minute of the Case Conference , I find on the balance of probabilities that the potential loss for the claimant was not explicitly communicated to him – this was a failure on the part of the respondent and constitutes non adherence to the Guidelines issued by Occupational Health on Case Conferences and in particular the reference to managers writing “ a short summary of the case and agreed actions”. On these grounds I find the respondent’s handling of the case was procedurally deficient and recommend in full and final settlement of this complaint that the respondent pay the claimant a once of compensatory sum of €2,000 – to be paid within 4 week of the date of this recommendation.