Complainant

Respondent

Anonymised Parties

A Worker

An Employer

Representatives

Eimear Ryan Fórsa Trade Union

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-00027229-001

22/03/2019

The Respondent is part of a larger government entity and is responsible for making payments to healthcare professionals, like GPs, dentists and pharmacists, for the free or reduced costs services they provide to the public.

The matter before you today refers to two Senior Pharmacists who are members of the Inspectorate team which is part of the Probity Unit within the respondent. This unit was created in 2016 with four

Senior Pharmacists and two Case Managers. As part of their remit, they must identify, investigate and prevent invalid fraudulent claiming by community pharmacists who are contracted by the respondent to provide pharmacy services in accordance with the Community pharmacy Contractor

Agreement. These posts were unprecedented in the respondent and the complainants had to take ownership of and create strategy for the efficient functioning of the unit. To this end, they have strived to become confident in operations that are far beyond the realm of routine community pharmacists.

The issue regarding appropriate grading was raised with HR management in February 2019. HR advised at the time that a job evaluation exercise would need to take place and that it may require an independent consultant to conduct this exercise. Forsa was satisfied with this response and believed that a process was in train. However, there was no formal meaningful engagement but one informal and unannounced conversation on the 20th February between the complainants and line management. Forsa requested minutes and/or notes of same multiple times over the next four weeks until the matter was eventually referred to the WRC on 22nd March 2019.

Subsequently, the position of a Chief ll Pharmacist in the Probity Unit was advertised while we believed we had a process in train.

The Unions’s Case:

Appendix 2 is the job specification for the Chief ll Pharmacist position recently advertised for the Probity Unit within the PCRS. Having carefully reviewed the document line by line it is evident that the purpose of the post, principal duties and responsibilities overlaps with the complainant’s current job spec (see Appendix 3.) I wish to also draw your attention to the Eligibility Criteria in the Chief ll Pharmacist Job Spec and the Senior Pharmacist Job Spec. The Grading code 3271 document (See Appendix4), which sets out the qualifications required for a Chief ll Pharmacist position, states at Section 1 (a)(iii) that "Eligible applicants will be those who on the closing date for the competition: (iii)possess a high standard of administrative, managerial or business ability." This requirement has been omitted from the 2019 Chief ll Job Spec. The respondent therefore, quite obviously, place no weight on such a skill and have deemed it an unnecessary prerequisite for any person wishing to contest the position. Furthermore, in the current Senior Pharmacist job Spec the management element was encompassed by competencies and/or knowledge. lt is our belief that the two job specifications are the same but simply formatted differently.

Both complainants have national remits as Senior pharmacists, but it is noteworthy that Chief ll Pharmacists have geographical remits. Consequently, the applicants' remit extends much further than that of a Chief ll pharmacist’s remit thereby placing upon the respective applicant's a greater responsibility, not to mention a significantly greater workload.

Both complainants conduct inspections on their own, in particular supervision inspections but also probity inspections.

A Chief ll Pharmacist's inspection obligations extend solely to inspections conducted to assess the premises of new community pharmacy contract agreement entrants. These inspections are not overly laborious in nature and do not require extensive preparation prior to attending at the pharmacy in question. The within applicant's, on the other hand, conduct numerous categories of inspection including, but not limited to, probity inspections, validation inspections, audits and stock counts. The different category of inspection conducted by the within applicants require a significant amount of pre-investigative work. Further to that, the inspections conducted by the applicants are unannounced and as such, the inspection environment can quite often become rather hostile. Difficult situations have arisen in the past whereby the applicants were denied access to the dispensary or alternatively whereby contracting community pharmacists took issue with the applicants, leaving the pharmacy with various documentation. As such it is imperative that the within applicants possess an in-depth knowledge of the Community Pharmacy Contractor Agreement in order to meet any queries or objections that the contractor in question may have. A chief ll Pharmacist would not be expected to possess such knowledge.

Both complainants have conducted inspections whereby they are the lead inspector and a Chief ll Pharmacist would be the support.

ln order to be awarded a Community Pharmacy Contract, applicants are required to submit a statutory declaration setting out various details relating to their company. Statutory declarations are legal documents sworn by those wishing to be awarded a Community Pharmacy Contract. The within applicant's are responsible for verifying the contents of the statutory declaration. This includes verifying company structures and the identity of company directors, company secretaries, shareholders and beneficial owners. The company structures are often complex and verification of same can be a laborious process. Stage 2, Section 6(c) of the Standard Operating Procedures for Processing Pharmacy Contract Applications states that Statutory Declarations "should be reviewed by Primary Core Pharmacist before proceeding". As the within applicants are the pharmacists responsible for reviewing the statutory declarations, they therefore perform the duties of a primary care pharmacist. For the purposes of clarity, a primary care pharmacist is equivalent to that of a chief ll Pharmacist. By extension, the within applicants are responsible for tasks which, according to the respondent's own policy, are to be conducted by pharmacists whose ranking is equivalent to that of a Chief ll pharmacists.

It is worthy to note that prior to this responsibility being placed upon the applicants, the case managers who were both qualified barristers conducted the verifications. Both case managers have since left the department.

The applicants are currently performing the duties of a Chief ll Pharmacist who is currently on maternity leave. This includes conducting inspections that would ordinarily be within the remit of a Chief ll Pharmacist and awarding contracts, also a function within the remit of a Chief ll Pharmacist.

The applicants are now acting as Chief ll Pharmacists in order to cover the workload of their colleague as well as managing their own, already significant, workload. The applicants were informed that they would be tasked with managing their colleagues workload by email one day after the colleague in question began her maternity leave. No prior notice was afforded to the applicants.

As already stated the probity unit was first established in 2016 at which time there were four

pharmacists and two case managers (both of which were qualified barristers) employed. Both case managers and one pharmacist subsequently left the department, none of which were replaced. lt is the function of pharmacists within the probity unit to conduct inspections and draft inspection reports. lt is the function of the case managers within the probity unit to draft "Witness Statements", being the documents relied upon in disciplinary proceedings, draft observations in response to contractor representations, attend and document settlement meetings, as well as various other tasks. The case managers would ordinarily be the point of contact for any contractor queries in relation to ongoing investigations. (See Appendix 6)

As a result of the departure of the case managers, all functions of the case managers have now been transferred to the within applicants. This includes, but is not limited to, the drafting of the aforementioned "Witness Statement" which in itself is a comprehensive and detailed document ranging from between 100- 400 pages. ln addition to drafting the Witness Statements, they are now the point of contact with the contractors, they are tasked with drafting the respondent observations in response to any representations that may be made by contractors and they are now also tasked with attending settlement meetings and drafting minutes in relation to same.

The complainant’s are trained to attend the High Court and are expected to be available as lead inspectors and authors of the report should a case be referred to the High Court.

The applicants established standardised procedures for the detection, prevention and prosecution of invalid claiming on the part of contracting pharmacists. ln order to do so, they developed specific lT programs alongside the respondent data analytics team to analyse, interpret and present claiming trends and patterns. They also put processes in place to calculate recoupment sums, being the sums of monies due and owing to the respondent on foot of invalid claims submitted for reimbursement by contracting pharmacists. Because the sums calculated are quite significant, often totalling hundreds of thousands of euros there is little room for error. The applicants have rigorous validation processes in place whereby they are capable of producing accurate and reliable recoupment figures and data to evidence same. These figures are used in settlement meetings attended by the applicants both in their capacity as pharmacy inspector and case manager. Once an agreement is reached, a settlement agreement is then drawn up. Once a task undertaken by the case managers, the responsibility of drafting settlement agreements has now fallen in the lap of the within applicants.

Both the complainants have a responsibility to protect public monies and this requires them to liaise with senior external stakeholders such as An Garda Siochana, the criminal Assets Bureau & the pharmaceutical society of lreland.

There are no other Senior Pharmacists within the respondent entity who conduct inspections, write witness statements, or have input into the respondent clause 16 Disciplinary Tribunals or High court cases.

The complainants have more than demonstrated their competency in relation to the requisite managerial acumen specified in the probity chief ll pharmacist job specification' They manage the Grade lll staff member assigned to the probity unit on a daily basis by delegating administrative tasks and functions. They instruct members of the Data Analytics Team, members of the Business Performance Management team and from time to time other staff members within the organisation who may be involved in activity relating to the probity unit'. They have also been tasked with providing induction training to the newest member of the probity team, a Pharmacy lnspector, who will be joining the team in June. In contrast, the complainants received their induction from senior management when they joined the respondent.

In Conclusion

The applicants' level of responsibility is much greater than that of any Senior pharmacist within the

respondent. Senior Pharmacists within the respondent do not conduct inspections nor do they possess the level of responsibility that the complainants are tasked with. The only comparable position within the organisation is that of a Chief ll Pharmacist and it is often the case that the within

applicants are responsible for tasks beyond even that of a Chief ll pharmacist. They believe that these posts were graded incorrectly when being established and is now seeking for the correct grading to be applied. The closest comparable being the chief ll pharmacist.

The respondent supports the delivery of a wide range of primary care services to the general public through over 7,000 primary care contractors (i.e. doctors, dentists, pharmacists, optometrists, etc.) across a range of community health schemes. These schemes form the infrastructure through which the Irish health system delivers a significant proportion of primary care to the public.

The respondent was established in 1973 as a reimbursement service for primary care service providers. The respondent spends €2.4bn funding the delivery of a wide range of primary care services to 3.4m persons through more than 7,000 primary care contractors across a range of ‘demand led’ national health schemes and arrangements. In 2011 the assessment and administration of medical cards was centralised in the respondent.

The vast majority of primary care services to the general public in Ireland and delivered by over 7,000 primary care contractors through a range of community health schemes. The respondent is responsible, through its reimbursement activities, for making payments to these primary care contractors for the service provided, according to the rules of the relevant schemes. The respondent also reimburses and makes payments to suppliers and pharmaceutical companies under the terms of other schemes.

In addition to processing and making of payments on a national basis to key service providers and recipients, the respondent also compiles statistics and trend analyses which are provided to other areas within the respondent, Government Departments and other interested parties.

The respondent provides additional services to the wider health service through the functions of the Corporate Pharmaceutical Unit (CPU), which is responsible for drug pricing, and through other activities such as the respondent’s collaborative support to the Medicine Management Programme.

The governing body of the respondent ensures the accuracy and reasonableness of claims presented for payment. The respondent is seeking to strengthen its probity assurances. It analyses and investigates trends in claim spend, including the investigation of trend anomalies to highlight risk areas and to identify invalid claim occurrences. The Pharmacy Inspector unit is based within the Probity Function in the respondent.

The complainants commenced employment as Senior Pharmacists (Pharmacy Inspector) with the respondent on the 20th June 2016 on a temporary contract arranged by Cxxx Healthcare.

Agreement was reached between the respondent and Cxxx healthcare that the complainant would take up a 12 month temporary post until such a time the respondent were in a position to fill the post on a permanent basis.

In April 2017 the respondent advertised four permanent Senior Pharmacist (Pharmacy Inspector) posts through the Health Business Service (HBS Recruit) with a closing date of Tuesday, 9th May 2017. (Campaign Reference: NRS04337) (Appendix 1)

Both complainants went through the application process and applied for one of the four permanent posts through HBS recruit. After attending a competency based interview both complainants were successful in securing a place on the permanent Senior Pharmacist (Pharmacy Inspector) panel.   After completing the recruitment process with HBS Recruit both complainants were offered one of the four permanent Senior Pharmacist (Pharmacy Inspector) posts fulfilling the same duties and responsibilities, and commenced their permanent employment with the respondent on June 20th 2017.

On the 31st January 2019 FÓRSA raised the matter for 3 of its members to ascertain their current work load. Ms. ER (FÓRSA presentative) raised the matter with Mr LN (The respondent HR Manager), that its members believed that their current duties and responsibilities, that of Senior Pharmacists (Pharmacy Inspectors) were no longer a true reflection of their role and that they believed that they now fulfilled the duties and responsibilities of a Chief two Pharmacist which is a Grade above their Senior Pharmacist Grade.

Due to demanding priorities within the Pharmaceutical and Probity Units it was the 20th February 2019 before management could meet with both complainant’s in order to address the matter raised by the two complainants.

The Chief II Pharmacists posts that FÓRSA make reference too are new development posts within the Probity Unit and the Pharmacy Function unit. These posts were agreed for a National recruitment campaign in February 2018 in order to form a panel of suitably qualified Chief II Pharmacists. At present these posts are underway (Campaign reference HBS07030) in order to fill two Chief II Pharmacist post within the Probity Unit and the Pharmacy Function unit. (Appendix 3

20/02/19 Meeting outcome:

An informal meeting took place February 20th 2019. Neither complainant attended the meeting with union representation. It was outlined how management considered they had a good open relationship with the Pharmacy Inspectors and had asked the complainants if they were happy and content within their role throughout all reviews/probation etc., and never before had any issue arisen with regards to either, the changing of work practices or promotion or regrading. Management advised that in these circumstances, they were really surprised that HR was contacted by Forsa regarding workload issues.

Both discussed how they considered their role had changed since the resignation of two Case Managers. Management advised that one Case Manager had resigned and had been replaced immediately and notwithstanding this, the role of the Pharmacy Inspector had not changed. Other than the witness reports which were now being prepared by the Pharmacy Inspectors, this had already commenced before the exit of the two Case Managers.

The complainants also discussed how morale had been impacted since the departure of the two Case Managers and this was generally discussed at the meeting.

Management outlined how they valued the role of each Pharmacy Inspector and indeed the complainant’s specific role within the Pharmacy Inspector unit. It was also acknowledged that some staff changes had occurred, and that this could impact on morale.

The complainants also raised the issue of the new Chief II post advertised and stated that everybody was doing the same job and therefore all Pharmacy Inspectors should be upgraded to Chief II.   Management discussed the following:

•             The role of the Pharmacy Inspector as outlined in the original job spec. /current role

•             The role of the new Chief II (in The respondent) and role in the CHOs and the difference in    that role to that of a Pharmacy Inspector.

•          The autonomy and responsibility of the Chief II (and supervisory/leadership role of the new post)

•          The direct and close supervision of case work and reports of the Pharmacy Inspector duties/responsibilities compared to the Chief II’s duties/responsibilities.

Management clearly outlined that on establishment of the dedicated Pharmacy Inspectorate, that they do not see the role of the Pharmacy Inspector at Chief II level. Upon closing the meeting each complainant were afforded the opportunity to add anything further. At no stage after the meeting did either complainant raise any concerns or issues with management that they were unhappy with the meeting outcome.

Points of Fact:

At no stage prior to the announcement of the Chief II post at team meetings did either complainant raise any concerns regarding workload, duties, responsibilities or the upgrading of their post with their line manager. Both complainants have been employed on a permanent basis since June 2017.

Neither complainants Grade falls under the respondent’s Job Evaluation Scheme 2016. The agreement covers clerical and administrative grades III to VI, and related grades. Under the scheme a job is only evaluated once the demands and responsibilities associated with a post have changed. Even if the complainant’s grade qualified under the scheme, this has only been brought to the attention of management over the last 4 months when two Case Managers within the Probity Unit ceased their employment with the respondent. To date both Case Managers posts have been replaced, while a third post is going through the contracting process and awaiting confirmation of an agreed start date.

Under the principle duties, responsibilities and the eligibility criteria of the Senior Pharmacist and the Chief II Pharmacist, there is a clear difference in the candidate profile.

a)            The Chief II Pharmacist eligibility criteria states that each applicant must have at least 5 year’s satisfactory post registration experience in either a community or a hospital environment, or a combination of both. It also states that candidates must possess the requisite knowledge and ability (including a high standard of suitability, management, leadership and professional ability), for the proper discharge of the office.

b)           Neither complainant fulfill the below duties and responsibilities that are required of a Chief II Pharmacist, therefore neither complainant meets the criteria:

•             Lead and manage an assigned area.

•             Participate in individual performance reviews.

•             Responsible for ensuring the unit’s work programmes are progressed.

•             Maintain the pharmacy database (in relation to medicines and devices paid under any of the state schemes or arrangements) and ensure effective quality assurance of the database.

•             Supervise and prepare all reports relevant to the assigned area.

•             Prepare responses to parliamentary queries and media queries as required.

•             Supervise and manage staff and workload in assigned area

•             Responsible for the operation of effective systems, procedures and patterns of control for the purpose of verifying the accuracy and reasonableness of claims from contracting pharmacists and for dealing with errors and in conjunction with Probity Unit abuse where such occurs.

The Pharmaceutical Society of Ireland has confirmed that all their Pharmacy Inspectors are employed at Senior Pharmacist Grade. The Health Products Regulatory Authority (HPRA) has also confirmed that their inspectors and pharmaceutical assessors, albeit they are not linked exactly to the Senior Pharmacists grading structure but to the Engineers pay structure, which is in line with the same salary pay scales of the Senior Pharmacist Grade.

At present the Pharmacy Inspectorate Unit’s current headcount is 3 Pharmacy Inspectors, with another Inspector due to start June 10th 2019. The unit has only been under resourced since February 22nd 2019. This is the only time that the Pharmacy Inspectorate Unit has been under resourced and has had no impact to the working hours or duties to the remaining Pharmacy Inspectors.

It’s worth noting that, not all Pharmacy Inspectors within the Pharmacy Inspectorate unit have made a complaint under section 13 of the Industrial Relations Act, 1969, nor have they approached management with any concerns regarding their workload or upgrading of their role.

At no stage throughout the employee performance review process did either complainant raise any concerns about workload, duties and responsibilities or that they felt they fulfilled the duties and responsibilities of the Chief II grade.

Neither complainant has initiated the grievance procedure in order for management to address any concerns regarding the terms and conditions of their employment.

Both complainants also make reference to the departure of the two Case Managers in their meeting with management. They explained that their roles had changed with added responsibilities and duties. To note, the role of the Case Manager is a lower grade than the grade of the Pharmacy Inspector.

Neither complainant has been required by management to fulfil an (Acting-up role).

Conclusion

The respondent have shown that there is a considerable difference between the role of both the Pharmacy Inspector and Chief II grades and believe that neither complainant fulfill the duties, responsibilities or the managerial responsibilities required of a Chief II Grade. As part of the strategic plan for the Pharmacy Inspectorate Unit the Chief II grade is a new development post critical to providing a defined management structure within the Inspectorate Unit.

Under the Policy on Acting-up in a higher capacity as a general principle, it is expected that senior managers across all staff categories, in line with this policy, may be required to provide cover in the absence of their colleagues, or to cover vacant senior posts pending their filling, at their own grade or higher in the context of their managerial function without receiving an acting-up payment.

As you will be aware an employee who claims a breach of the terms and conditions of their employment should initiate the grievance procedure in order for the employer to ensure consistency, transparency and fairness in the handling of workplace problems or complaints.

We believe that the respondent has not been afforded the opportunity of early intervention or a formal opportunity to address the complainants concerns under the grievance procedure as set out by the respondent.

Having consider the submission of both parties, I am satisfied that the daily tasks, obligations and responsibilities of the two complainants go far beyond those of a Senior Pharmacist. However, they are not directly comparable to those of a Chief II Pharmacist post either. I can only conclude based on the limited information I have about the various posts within the respondent, that the Chief II Pharmacist post is the closest comparator.

Based on that finding, I am recommending that either the complainants are moved to the Chief II pharmacist grade or that a new grade be created that more accurately reflects their actual responsibilities and obligations. Furthermore I am recommending that they be reimbursed the difference in pay from their Senior Pharmacist salary to the Chief II Pharmacist grade or new grade.

I am recommending that either the complainants are moved to the Chief II pharmacist grade or that a new grade be created that more accurately reflects their actual responsibilities and obligations. Furthermore I am recommending that they be reimbursed the difference in pay from their Senior Pharmacist salary to the Chief II Pharmacist grade or new grade.