ADJUDICATION OFFICER DECISION & RECOMMENDATION
Adjudication Reference: ADJ-00022096
Parties:
| Complainant | Respondent |
Anonymised Parties | An IT Systems Support Officer | A Hospital |
Representatives |
|
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
CA-00028930-001 | ||
CA-00028930-002 | ||
CA-00028932-001 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
Between February 6th and June 10th 2019, this complainant submitted six complaints to the WRC under various pieces of legislation. In accordance with Section 41 of the Workplace Relations Act, 2015, Section 79 of the Employment Equality Acts 1998 – 2015 and Section 13 of the Industrial Relations Acts 1969, these complaints and disputes were assigned to me by the Director General. From a scheduling perspective, the complainant agreed that all six complaints could be dealt with together, but she requested that her complaints under the Employment Equality Acts be considered first. On August 14th 2019, I heard submissions from the complainant and the respondent in relation to the complaints of discrimination. The grievances under the Industrial Relations Act were considered on September 23rd 2019.
On the forms she submitted to the WRC, the complainant did not indicate that she would be represented at the hearing of her complaints. On one form, she said that it is very difficult for her to write about her complaint without getting distracted. On another, she referred to the fact that in 2015, she was absent from work due to stress and in 2019, she was absent again because of stress. She said that she has a difficulty hearing, particularly when people talk over her.
Considering these challenges, and, because of the complexity and number of complaints, in advance of the first hearing, I instructed the case officer to write to the complainant to encourage her to bring someone with her who has experience of attending hearings at the WRC, or who is familiar with industrial relations and employment law. In his letter, the case officer explained to the complainant that the hearings will involve her being cross-examined by the IBEC executive representing the hospital, and she will have the opportunity to cross-examine their witnesses. The complainant was advised that she could be accompanied by a relative or a friend, or both; however, to help the process to run as smoothly as possible, and to give her the best chance to make her case effectively, she was advised to be represented by a trade union official, a solicitor or someone from her local Citizens Information Centre.
On August 14th 2019, the complainant attended the hearing without representation. At the opening of proceedings, I asked her to re-consider her decision, but she said that she didn’t want to be represented because it would take too long to explain her case to someone. I am satisfied that, while she could have been represented at the hearing, the complainant chose not to be. I regret her decision in this regard because she was disorganised and there was no chronological order in the way she presented her complaints.
September 23rd 2019 was the second of two days of hearings at which I enquired into the six complaints submitted by the complainant. The hospital’s Human Resources Manager and the complainant’s line manager, who is the Manager of the Clinical Activity Reporting Unit attended and gave evidence. They were represented by Ms Aisling McDevitt of IBEC. Ms Sinéad O’Connor from the WRC Secretariat attended the hearing to ensure that the proceedings were manageable for the complainant.
The subject of this decision and recommendation is the complainant’s sixth complaint, submitted on June 10th 2019. At the hearing, the complainant informed me that she was absent due to illness from the middle of January 2019 and, on May 20th, she was compulsorily retired because of incapacity. She is entitled to an early pension on the grounds of ill health.
Background:
The complainant commenced employment in the hospital in March 2003. By the time of her retirement in May 2019, she was in a Grade V role of “Data Informatics and Reporting Officer” and she reported to the Manager of the Clinical Activity Reporting Unit (“CARU”). In her job description, her role is described as “report-writing, data extraction and statistical compiling throughout the hospital to inform business intelligence as required by the Clinical Activity Reporting Unit”. The complainant said that her job involved the maintenance of data quality, data governance and checking, the extraction of data for reports, staff training, answering telephone queries, drawing up organisation charts and attendance at project meetings and teleconferences. At the hearing, the CARU Manager said that the complainant had considerable expertise in IT systems and data management. Outline Chronology In 2014, the complainant was working in the Patient Services Department and, around the time of an IT systems upgrade, she said had several grievances related to her job. She said these grievances involved her requesting “tools to do the job that I had been assigned” and “requests for processes as to how things were done.” Following a meeting with her Department Head and the Human Resources Manager, she got a letter confirming that “improved work flows would be worked on,” but, she said that this didn’t happen. In August 2015, the complainant said that she was sent home from work. She said that she remained absent until January 2016 because of workplace stress. An advertisement was posted for a temporary Systems Officer to cover her role during her absence. The person who got the temporary job was the brother of her line manager at the time and the complainant alleged that he got the job as a result of canvassing. When she returned to work, the complainant was concerned at the access he had been given to the e-mail account for the job and to various IT systems. The complainant said that between 2014 and 2017, her post was “split and splintered by the introduction of various new posts.” She said that one job was to communicate with and to represent senior management and this was assigned to a person at a higher grade than her. The second job was to improve communications about processes and this was given to a less senior manager. The complainant said that there was no improvement in her work processes because, in March 2016, her manager told her not to contact the person in the process role. The complainant said that she submitted a formal grievance about this on three occasions, but she got no response. In April 2016, the complainant was moved to report to the manager of the Clinical Activity Unit, while still carrying out some work for the Patient Services Unit. In February 2017, the complainant said that, following a meeting between two departments, her former line manager, the Head of Patient Services, made a complaint about her. She made a counter-claim about her manager and about her working conditions, which, she claimed were very difficult. An investigation was carried out by an independent consultant, but the complainant said that her own complaints were not considered. She believes that the manager who complained about her counselled two witnesses about the evidence they gave to the investigator. In her submission she said, “the Investigation Findings were that I was found to be of a bullying behaviour, albeit unintentional.” The complainant appealed against this outcome; however, the hospital did not accept her appeal because it was submitted too late. A disciplinary investigation arising from the findings of this report resulted in the complainant being issued with a written warning on January 18th 2018. At the hearing of her grievances on September 23rd 2019, the complainant said that she did not consent to me reading the report of the independent consultant which was submitted in evidence by the hospital and I returned the document to Ms McDevitt. In July 2018, the complainant said that she was listening to the radio at work and she heard a feature about the new General Data Protection Regulations. She said that she thought that using the Regulations might be one way of getting her issues resolved. On one day, she sent 33 e-mails to the Human Resources Manager, requesting specific information and a designated reference number for each item, to assist her “to raise the issues with the Data Protection Office in relation to the fair processing of data about me.” In August, the complainant sent a 50-page submission to a consultant gynaecologist / obstetrician at the hospital by way of an appeal against the disciplinary warning of January 2018. These communications and what were referred to as “the excessive number of complaints / grievances / correspondence you have been sending to senior management since January 2018” resulted in a second disciplinary investigation. On October 18th 2018, the complainant was issued with a final written warning. Her appeal against this warning was rejected. On January 3rd 2019, the complainant refused to attend a meeting with her manager unless she had a witness present. The purpose of the meeting was to discuss an operational matter. On January 14th, she was suspended, pending an investigation into her failure to carry out a reasonable instruction. On February 6th 2019, in her complaint form in relation to this complaint, she said, “I am currently on sick leave for stress.” On August 14th, at the WRC, the complainant said that she had suffered an injury at work and she consulted a psychiatrist. At some point during her absence, she was examined by the hospital’s occupational health physician. Following a discussion by telephone with her consultant, the occupational health physician wrote a report in which he concluded that that the complainant is permanently incapable of carrying out her duties at work and he recommended that she would be permitted to retire on medical grounds. |
CA-00028930-001: Complaint under the Payment of Wages Act 1991
Summary of Complainant’s Case:
Having been out sick from the middle of January 2019, the complainant said that her doctor certified her as fit to return to work on April 4th. When she contacted her employer to inform them that she was ready to return to work, she said that she was informed that she would need to get a “final certificate” from her doctor. She said that her doctor disagreed with this. This complaint is about the fact that approximately €210 per week for seven weeks was deducted from the complainant’s wages in April and May 2019, equivalent to what the complainant was entitled to in illness benefit from the Department of Social Protection. She said that she didn’t claim this benefit and therefore, has suffered a loss. |
Summary of Respondent’s Case:
For the hospital, Ms McDevitt said that, in March 2019, occupational health consultant reported that the complainant was not fit for work. He arrived at this decision having contacted the complainant’s consultant psychiatrist. The hospital’s case therefore, is that during the period for which she has submitted this complaint, the complainant was absent from work due to illness. Ms McDevitt informed me at the hearing that, in March 2019, the complainant had exhausted her entitlement to sick pay from her employer; however, due to the enquiries that were taking place regarding the possibility of early retirement, they decided not to cease payment of sick pay. On this basis, Ms McDevitt argued that, in April and May 2019, the complainant received in excess of what she was entitled to in the form of wages. |
Findings and Conclusions:
The Relevant Law Section 5(6) of the Payment of Wages Act 1991 (“the Act”), deals with the circumstances in which wages that are properly payable to an employee are not paid: (6) Where— (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or (b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion. In respect of this complaint, the deduction in April and May 2019, of the amount equivalent to illness benefit from the Department of Social Protection, is considered by the complainant to be an illegal deduction. Wages that are Properly Payable A copy of the Public Service Sick Leave Scheme was submitted in evidence by the Ms McDevitt. Section 6 provides that, an employee absent due to illness will receive full pay for a maximum of 92 days and half pay for a maximum of 91 days. This entitlement is subject to a maximum payment for 183 days in a rolling four-year period. Ms McDevitt said that the complainant exhausted her entitlement to sick pay in March 2019. It is apparent therefore, that she was not entitled to sick pay in April and May 2019, when she claims that there was an illegal deduction from her wages. Based on the evidence submitted at the hearing, I must conclude that, in April and May 2019, as no wages were properly payable to the complainant, there was no illegal deduction from her wages |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
As I have concluded that the respondent did not make an illegal deduction from the complainant’s wages, I decide that this complaint is not upheld. |
CA-00028930-002
Complaint under the Minimum Notice and Terms of Employment Act 1973
Summary of Complainant’s Case:
The complainant argued that, up to the date of her retirement on May 20th 2019, she was employed by the hospital for more than 15 years, and, on this basis, she was entitled to eight weeks’ notice of the termination of her employment. On her complaint form, she said that she should have been given time to clear her desk and to meet with the appropriate personnel to discuss her entitlements in respect of pension, holiday entitlements and sick leave. |
Summary of Respondent’s Case:
The hospital’s position is that, from mid-January, until she retired on May 20th 2019, the complainant was not able to work due to illness. For this reason, Ms McDevitt argued that the complainant was not entitled to notice. |
Findings and Conclusions:
In reaching a conclusion on this matter, I refer to the authority of the Labour Court and the appeal in 2018 of Lurie Lancu against the finding of the adjudicator in respect of his complaint against his former employer, Anglo Irish Beef Processors (Anglo Irish Beef Processors trading as ABP Rathkeale and Lurie Lancu, MND 187). In accordance with the Minimum Notice and Terms of Employment Act 1973, Mr Lancu was entitled to eight weeks’ notice of the termination of his employment. However, he was out sick during the period of notice and he did not receive any pay in lieu of notice. Schedule 2 of the Minimum Notice and Terms of Employment Act 1973 deals with the rights of employees during the notice period. Paragraphs 3 and 4 respectively, consider the issue of pay in lieu of notice and absence from work: 3. Subject to paragraph 4 of this Schedule, an employer shall pay to an employee, if there are no normal working hours for that employee under the contract of employment in force in the period of notice, in respect of each week in the period of notice, a sum not less than the average weekly earnings of the employee in the thirteen weeks next preceding the giving of notice. 4. An employer shall not be liable to pay to his employee any sum under paragraph 3 of this Schedule unless the employee is ready and willing to do work of a reasonable nature and amount to earn remuneration at the rate mentioned in the said paragraph 3. The complaint under consideration here is somewhat different from the Anglo Irish Beef Processors case, because the complainant claims that she was capable of working in the weeks before her retirement on May 20th 2019. She disagrees with the opinion of the occupational health consultant whose opinion is that she was not fit for work. I understand the complainant’s distress at not being permitted to return to work, in circumstances where she felt that she was capable and well. It is apparent however, that, in the weeks before her retirement on May 20th 2019, she was ill and not capable of doing her job in the manner expected of an employee at the hospital. I find therefore, that she was not entitled to notice. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
As I have concluded that the complainant was not entitled to notice, I decide that this complaint is not upheld. |
CA-00028930-003
Complaint under the Industrial Relations Act 1969
Summary of Complainant’s Case:
This complaint relates to the fact, to calculate the complainant’s entitlement to sick pay, in 2015 and 2019, the HR Manager got information about her wages and sick leave from the Payroll Department. On her complaint form, she stated: “I wish to make a formal complaint about the breach of my privacy without my consent, the monitoring of my sick pay and provision of that information to another person without my consent to do so. The Payroll Department and the HR Department are separate in the context of the employer and the Wages and Pay Act 1991 (sic) states that particulars of the detail of the payslip are private information.” |
Summary of Respondent’s Case:
The hospital’s case in relation to this dispute is that there was no breach of the complainant’s right to privacy arising from the involvement of the HR Department in the calculation of her entitlement to sick pay. |
Findings and Conclusions:
I find that this complaint is not a trade dispute within the meaning of that term as set out in the Industrial Relations Act 1946. |
Decision:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I recommend that no action be taken in relation to this complaint. |
Dated: September 30th 2019
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
Sick pay, notice |