Complainant

Respondent

Anonymised Parties

A Nurse

A Health Service Provider

Representatives

Martina Weir SIPTU-Workers Rights Centre

Arthur Cox Solicitors

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-00019415-001

25/05/2018

The Complainant was employed as a Staff Nurse with the Respondent, a Health Service Provider, since August 1999. The Respondent has been on certified sick leave since 25 July 2016.

The Complainant’s complaint relates to her application for early retirement on the grounds of ill-health, which she contends management have refused to address.

Background:

According to the Complainant’s Trade Union representative, she has been absent from work due to medically certified illness since 25 July 2016. It was submitted that, in late May 2016, the Complainant made application to her employer – through a self-referral to Occupational Health – for consideration under Section 10 of the Respondent’s Superannuation Scheme, the section in question being that dealing with Retirement on Medical Grounds.

It was submitted on the Complainant’s behalf that she had a history of mental illness dating back to at least 2004 and possibly 2000 or earlier. It was submitted that the Complainant managed this illness with the support of her GP. However, it is submitted that in early 2015 she suffered a serious relapse.

According to the Complainant’s evidence, at the time of making the application for early retirement, she was attending a Community Mental Health Service, having the been referred there by her GP on 16 October 2015. It was further submitted that the Complainant was placed and remains under the care of a Consultant Psychiatrist.

The Complainant’s Trade Union representative provided a detailed account of her medical history and the appointments/meetings with she had with various medical professionals, some of which were initiated by the Complainant herself and the remainder by the Respondent. Detailed evidence was also adduced with regard to the chain of correspondence that issued between the Complainant, her Trade Union representative and the Respondent during this period.

According to the Complainant’s evidence, despite the representations made on her behalf by her Trade Union, her application for ill-health retirement was not progressed, despite numerous OH assessments, some of which were conducted by external experts, supporting her application. Consequently, it was submitted that due to the inadequate level of response from the Respondent and the failure to make progress at local level, a complaint was lodged on the Complainant’s behalf with the WRC on 28 May 2018.

Substantive Arguments:

According to her Trade Union representative, the Complainant finds herself in a difficult position. It is submitted that, based on the numerous medical assessments undertaken and the evidence of her own primary care team – GP and psychiatrist – the Complainant is clearly unwell. It is further stated that, based on her medical condition, the Complainant made application to retire from work under a scheme which provides a means for employees to exist in this fashion when they find themselves in such dire situations.

It is submitted on behalf of the Complainant that she has complied with all requests by management to undergo medical assessment and each time she has received opinion that she should retire from her job as she is suffering from severe illness. However, it is contended that the Respondent has delayed in their response to the Complainant’s application, insisting on even more medical assessments. It is further submitted that on receipt of each assessment report, a further test is put in place for the Complainant to overcome. It is contended that the Complainant has been cooperative at all requests for medical assessments and, on each occasion, she has had her hopes raised by supportive outcomes only to have them dashed again by further delays with yet more tests placed in her path by the Respondent.

According to the Complainant’s evidence, she satisfies the conditions of the Respondent’s “Employee Superannuation Scheme 2010” and, in particular, the requirements set out at Section 10, therein, which deal with the issue of “Retirement on Medical Grounds”. It is further contended that the medical evidence, which has been provided to the Respondent, shows that the Complainant satisfies the criteria set out in the Scheme.

However, notwithstanding the above, it is contended, on behalf of the Complainant, that the Respondent continues to change the goalposts and that there is no consistency in the reasoning for the delay in deciding on the matter.

Conclusion:

In summary, it was submitted that the Respondent has placed unjustifiable obstacles in the way of the Complainant’s pursuance of her entitlement to be considered for retirement on grounds of ill-health. The Complainant contests the Respondent’s contention that the reason for the delays are due to the complexity of the case, as nothing has emerged to support this view.

In addition, the Complainant objects to the Respondent’s insistence that other “outstanding matters” must be concluded before a decision can issue on her Ill Health Retirement application. In reply, the Complainant contends that this is not a prerequisite under the terms of the Superannuation Scheme and, therefore, cannot be used to impede the Complainant’s right to retire, if she has satisfied the actual conditions set down under Section 10 of the Scheme.

The Complainant also refutes the Respondent’s contention that she does not meet the conditions as set down Section 10 of the Scheme, on the basis that the medical evidence provided is insufficient to allow a decision to be made. In support of this position, the Complainant contends that it is the Respondent who determined the questions to be addressed in the numerous assessments they initiated. According to the Complainant, the outcomes of the various assessments have addressed the matter to be decided by concluding that the Complainant is a candidate for early retirement on grounds of ill-health.

Finally, it was submitted on the Complainant’s behalf that there should be nothing further required in this regard and she should now receive approval for her application together with the approval for the additional notional service and that this should be addressed as a matter of urgency. It was further contended that the approval of her application for retirement may allowed the Complainant to find the strength to focus on her health and well-being instead of facing a daily struggle against an organisation who seem intent on increasing her difficulties as opposed to supporting her vulnerable and fragile state of mental health.

Based on the above, the Complaint requested favourable recommendation.

Background:

The Respondent confirmed that the Complainant was employed in the role of Staff Nurse since 14 August 2000 in one of their residential intellectual disability service locations.

The Respondent provided a detailed account of matters pertaining to the Complainant’s employment from November 2014 onwards, at which point the Respondent received a written complaint against the Complainant. It was submitted that, as a result of a preliminary screening, the Respondent decided to place the Complainant on paid protective leave pending the outcome of an investigation.

It was further submitted that, on 16 December 2014, the Complainant was informed that the Respondent was initiating Stage 4 of its disciplinary process in connection with the complaint against her. However, the Respondent stated that An Garda Síochána subsequently commenced an investigation, in which the Complainant was one of the subjects. It was submitted that, as a result of the Garda investigation, the Respondent did not progress its disciplinary processes at that point, as that investigation was considering matters related to the Complainant’s work.

According to the Respondent’s evidence, on learning that the Complainant was charged as a result of the Garda investigation, which related to her work with the Respondent, they sought to initiate a Stage 4 disciplinary process under their Disciplinary Procedure.   As the Complainant was absent from work at the time the Respondent sought to initiate the disciplinary process, they requested a report from their Occupational Health Service (OHS) to determine whether the Complainant was fit to participate in the process. According to the Respondent, they receiver report, on 15 June 2016, from their Occupational Health Services confirming that the Complainant was unfit for work and unfit to engage with management in relation to the disciplinary process.

The Respondent stated that, on 8 December 2016, the Complainant made a successful application for Temporary Rehabilitation Remuneration (TRR). It was further stated that the Complainant has been in receipt of the TRR payments since 21 December 2016. The Respondent also pointed out that TRR is normally paid for 18 months, however, in the prevailing circumstances, they had approved an extension in the Complainant’s case, facilitating a further nine months payment.

According to the Respondent’s evidence, in February 2017, the OHS reported that the Complainant was fit to engage with management, but that this engagement should be deferred until an assessment was carried out by an independent psychiatrist. The Respondent submitted that, on 22 March 2017, the OHS confirmed the referral of the Complainant to an external Consultant Psychiatrist, for the purpose of an independent assessment of her fitness to engage with work matters/processes.

The Respondent submitted that the Complainant first requested ill-health retirement on 6 April 2017 and that she supported her application with a letter from her psychiatrist, dated 14 December 2016. According to the Respondent’s evidence, the Complainant’s psychiatrist’s report stated that she was not fit for work “at present”.

According to the Respondent’s evidence, when the report from the independent Consultant Psychiatrist issued it confirmed that the Complainant was not fit to resume work and not fit to engage with her employer for the purposes of the disciplinary process. It was further submitted that as part of his report, the independent Consultant Psychiatrist opined that the Respondent should consider retiring the Complainant on grounds of ill-health. However, it was pointed out by the Respondent that the matter of the Complainant’s ill-health retirement was not before the independent consultant for assessment

It was further submitted that, on 11 August 2017, the Respondent’s OH Physician provided a report which stated that, in his opinion, the Complainant was “likely” to be permanently infirm until the usual age of retirement and that he recommended that her application should be considered for ill-health retirement.

The evidence submitted suggest that the Respondent then wrote to the Complainant, on 17 January 2018, wherein they informed her that having considered the recommendation of the independent Consultant Psychiatrist and given the severity of the allegations being made against her, the Respondent deemed it necessary to conclude the disciplinary processes prior to issuing any decision on the retirement application.

The Respondent stated that, on 28 May 2018, the Complainant submitted a complaint to the Workplace Relations Commission (WRC) claiming that they had refused her application for ill health retirement. The Respondent further stated that, following receipt of the Complainant’s WRC claim, they continued to engage with her through her representative and sought to refer her for further assessment.

In this regard, the Respondent submitted that they have appointed an external Consultant Forensic Psychiatrist to consider the Complainant’s availability for ill-health early retirement and whether she is sufficiently fit to participate in a disciplinary process. The Respondent stated that the Complainant attended an appointment with this external Consultant on 28 February 2019 and there are currently awaiting a report in this regard.

The Respondent’s Substantive Position:

The Respondent made a comprehensive reply to the Complainant’s claims. The Respondent’s position was set out under three specific headings.

Firstly, the Respondent contends that no decision has been made in respect of the Complainant’s ill-health early retirement application. In this regard, the Respondent referred to the Complainant’s contention, as set out in her WRC complaint form, where she challenged the Respondent’s refusal of her early retirement and also sought additional years. The Respondent further stated that, the fact that no decision had been made was explicitly set out in their letter to the Complainant on 17 January 2018. According to the Respondent they are not in a position, to date, to decide whether or not it can accept the Complainant’s application for ill-health early retirement. However, the Respondent submitted that they expect to be in a position to make this decision within a short time after the report of the Consultant Forensic Psychiatrist comes to hand and they have had time to consider all the issues raised in this case.

Secondly, the Respondent states that they are not currently permitted to grant Ill-Health Early Retirement to the Complainant. The Respondent submits that, in considering requests for ill-health early retirement, it is obliged to comply with the requirements set out in the relevant statutory scheme.

According to the Respondent, they are restricted from making a decision in circumstances where they are not satisfied that the requirements of Section 10 (a) and Section 10 (b) of the Superannuation Scheme 2010 (SI 362 of 2010) have been fully met. The Respondent submits that they are not currently in possession of the evidence which would demonstrate that the Complainant satisfies the criteria set out in the aforementioned sections. However, the Respondent submitted that they will be in a position to determine whether they have the power to grant the relief the Complainant is seeking once the Consultant Forensic Psychiatrist’s report is to hand.

Finally, the Respondent submits that it is not currently permitted to grant added years. According to the Respondent’s submission, the granting of added years is a matter of Executive discretion. However, it was pointed out that the exercise of the Executive’s powers is subject to the requirement that the employee must retire or be retired on medical grounds in accordance with the conditions laid down in Section 10.1 of the Scheme. The Respondent stated that, as already pointed out, they are not currently in possession of medical evidence that would allow it to exercise this discretion.

The Respondent submitted that when the report of the Consultant Forensic Psychiatrist is to hand, they will be in a position to determine whether the Complainant fulfils the criteria as set out in Section 10.1 of the Scheme. It was further stated that it is only at that point, the Respondent can be in a position to consider whether it will exercise its discretion to grant added years and this will be subject to the conclusions of the Consultant Forensic Psychiatrist.

Conclusion:

In concluding their submission, the Respondent stated that it is well established by the WRC that applications to refer a dispute should only be made when all other opportunities have been exhausted. The Respondent states that this is plainly not the case in the context of this referral, which was made on the basis of an incorrect assertion that a decision had been made in relation to the Complainant’s application.

The Respondent submits that the parties have been engaging in relation to the Complainant’s claim and that, as recently as 28 February 2019, the Complainant attended a medical appointment with the external Consultant Forensic Psychiatrist, with a view to progressing matters.

According to the Respondent, they have not yet made a decision in relation to the Complainant’s claim for ill-health early retirement and added years. The Respondent submits that it is statutorily prohibited from making the decision, whether in favour or against the Complainant, until it has received expert medical evidence that she meets the criteria set out in Section 10 of the Scheme. According to the Respondent it is expected that, once the report of the Consultant Forensic Psychiatrist comes to hand, they will be able to overcome this initial issue.

The Respondent stated that if the medical evidence supports the Complainant’s claim for ill-health early retirement, the Respondent must still consider whether the Complainant fits the remaining non-medical criteria set out in Section 10 before determining that she is eligible to be considered for ill-health early retirement.

In addition, the Respondent submits that, notwithstanding the conclusions regarding ill-health early retirement, the Oireachtas has determined that the decision whether to grant the Complainant “Added Years” is within this the discretion of the Respondent’s Executive. The Respondent submits that, while such discretion must be exercised lawfully, it is extremely important that the Respondent is not directed to exercise discretion in a particular way, particularly given the complexities of the within case.

In conclusion, the Respondent submitted that, in these circumstances, they respectfully request that an Adjudication Officer should be most reluctant to make a recommendation, particularly where this could have the effect of requiring the Respondent to breach its statutory obligations under the rules of the Scheme. The Respondent further pointed out that if the Adjudication Officer did choose not to make a recommendation at this point this would of course not prejudice the other remedies that the Complainant may have whether under the internal procedures or, indeed, in the context of a subsequent referral to the WRC.

Having given careful and detailed consideration of the submissions made by and on behalf of the Complainant and Respondent, I have come to the conclusion that, notwithstanding the background and chain of events leading up to the Complainant’s submission of her WRC complaint, the process has now reached a critical point, which renders any commentary on what has gone before redundant and/or irrelevant.

In my view, this leaves me in the position that there is only one possible or indeed practical recommendation I can issue at this point in time and that is that all parties should await the issue of the Consultant Forensic Psychiatrist’s Report into the matter of the Complainant’s claim for ill-health and early retirement.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I recommend that all parties await the outcome of the Consultant Forensic Psychiatrist’s Report, a copy of which should be provided to the Complainant immediately on receipt.

I further recommend that the Respondent should provide the Complainant with the decision of their Executive in relation to her application for Retirement on Medical Grounds (as set out in Section 10.1 of SI 362 of 2010) and the addition of notional service (as set out in section 7.2 of SI 362 of 2010) in a reasonable timeframe, which should not extend beyond eight weeks from receipt of the Consultant Forensic Psychiatrist’s Report.

In the interim, I recommend that the Complainant’s current sick pay arrangements continue pending the issuing of the decisions referred to in the previous paragraph.

Industrial Relation Act

Retirement on Medical Grounds