ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00021754
Parties:
| Complainant | Respondent |
Anonymised Parties | A Nurse | Health Service Provider |
Representatives | Maura Hickey Irish Nurses and Midwives Organisation | Declan Thomas , IBEC |
Complaint(s):
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-00028454-001 | 16/05/2019 |
Date of Adjudication Hearing: 09/12/2019
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Procedure:
In accordance with Section 13 of the Industrial Relations Acts 1969 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).
Summary of Complainant’s Case:
1. Introduction. 1.1 This claim is brought under Section 13 of the Industrial Relations Act on behalf of the claimant. 1.2 The claimant claims that; a) She has her accrued annual leave for 2016 and 2017 applied to her retrospectively. b) Be compensated €5000 for the tardy manner in which her employer treated her. 1.3 Table shows outstanding hours of annual leave Year 2016 110 hours Year 2017 216 hours Total 326 (8.4 weeks)
2. Background
2.1The claimant qualified as a Registered Nurse for People with Intellectual Disabilities in 1979 and worked for one year in St Vincent’s Centre Dublin. In January 1981 the claimant commenced work in Sligo as a staff nurse. The claimant worked in a HSE funded group home outside Cavan from 1997 before moving to respite services in Boyle run by a voluntary sector service provider. In 2003 the claimant worked in Longford and in 2005 the claimant moved to work to her current location.
2.2 The claimant is committed to life-long learning and has completed a workshop on Safe Tools for Practice, Preceptorship Preparation Programme, HIQA Registration and Inspection Process, Basic Life Support training, to name but a few.
2.3 The claimant is contracted to work 30 hours per week.
2.4 In September 2016, the claimant was the subject of a serious allegation in her previous employment. An investigation was not completed as the complainant, a service user, was unwilling to be interviewed and it was established that this service user had been discharged from the particular location before the claimant started working there.
2.5 The claimant attended a meeting in Carrick-on-Shannon, accompanied by her husband on 16 September 2016 where Ms EC Manager for the Services advised the claimant to go on sick leave while an investigation was being conducted by her former employer. The claimant did this and went on sick leave as advised by Ms. EC.
2.6 The claimant remained on sick leave until advised by the INMO in December 2016, that her employer should have placed her on Administrative leave during the period of investigation.
2.7 The claimant was distraught and upset by this allegation and attended counselling during this time as recommended by her manager Ms EC.
2.8 In November 2018 the claimant was referred to Occupational Health prior to returning to work when it was found that she had no case to answer.
2.9 On 11 December 2018 the claimant returned to work on an agreed phased basis as recommended by her GP; using some of her annual leave entitlement from 2018 on a weekly basis to facilitate her phased return.
2.10 The claimant understood that she had accrued annual leave while on paid Administrative leave and sought to address this with management locally, however she was unsuccessful.
2.11 On 18 December 2018 the INMO attended a meeting with management representing the claimant outlining that there were two issues that their member needed resolution to;
1) The non-granting of accrued annual leave for the year 2017 and accrued annual leave from September 2016 to the end of the year.
2) The claimant was seeking to see what was on her personnel file pertaining to the complaint made against her. Actions were agreed at the meeting.
2.12 On 15 January 2019 the claimant received an email from the respondent’s HR manager informing of her annual leave entitlement including bank holidays for 2016 and 2017.
2.13 On 29 January 2019 the Chairperson of the Board of Directors, wrote to the INMO advising that they required a constructive proposal outlining the claimant’s views and suggestions regarding the leave issue for consideration.
2.14 On 14 February 2019 the claimant responded to the Chairperson outlining her proposal.
2.15 On 28 February 2019 the INMO wrote to the Chairperson, on the claimant ’s behalf advising that the Board had not responded to the claimant’s proposal and that this was not acceptable.
2.16 On 9 April 2019 the INMO attended a further meeting with management highlighting that the claimant had acceded to management’s request and submitted a proposal on the remaining accrued leave for September to December 2016 and for the entire year of 2017 and had not received a response from management. IBEC representative Mr Thomas advised that it was his understanding that the accrued leave for 2018 had been granted and for the first time the claimant and the INMO were informed that accrued leave for 2017 and 2016 were not being granted. At this point, the INMO requested a written copy of the annual leave rolled forward from the claimant’s 2018 annual leave in hours and days. The board gave the INMO the board’s position regarding the non-granting of the claimant’s accrued annual leave for 2016 and 2017.
2.17 On 15 April 2019 IBEC wrote to the INMO on behalf of the respondent confirming that any annual leave not taken by the claimant in 2016 and 2017 would not be granted.
3. Definition / Context. 3.1 Administrative leave is defined as a temporary leave from a job assignment, with all benefits intact. Usually, an employee is placed on administrative leave when an allegation of misconduct is made against an employee. During the leave, employers may investigate the situation before determining an appropriate course of action. Administrative leave does not in itself imply that an employee will be disciplined or even that an allegation is credible, which is why pay and benefits are not discontinued. It simply allows the employer to investigate the situation, maintaining the employee's present status while at the same time removing them from the environment, eventually leading to either their return or termination. An employee has the right to full pay and benefits while he or she is placed on administrative leave pending an investigation. The claimant was placed on administrative leave by her employer therefore she has the right to full pay with benefits. In this instance the benefit not given to the claimant is the accrued annual leave from September 2016 to December 2016 and annual leave for 2017.
4. Unions Arguments 4.1 In September 2016 the claimant found herself the subject of an allegation which resulted in her being off work initially on sick leave from September to December, on the advice of her employer. An employee accrues annual leave while off on sick leave and therefore the claimant is entitled to her outstanding annual leave for 2016. The Employers representative in his correspondence dated 15 April 2019 confirms that any annual leave not taken by the claimant in 2016 and 2017, leave will not be granted. It appears that the employers’ representative fails to recognise if you are on sick leave then you cannot be at work. Sick leave is covered under the terms and conditions of the claimant’s contract.
4.2 The employer acknowledged and conceded the claimant’s right to retrospective annual leave upon the claimant ’s return from administrative leave to work. The claimant returned to work on a phased basis in December 2018 using her accrued annual leave for 2018. In fact, the employer representative confirmed in his letter dated 15 April 2019 stating that the claimant was paid her full salary including premium for the entire period which she was on administrative leave. However, the employer refused to honour the claimant ’s accrued annual leave for 2016 and 2017 which is an entitlement. This is unjust and unfair. The claimant ‘s employer is failing to apply all the benefits that an employee is entitled to while on administrative leave and must be made to honour the outstanding accrued annual leave for 2016/2017.
5. Conclusion The claimant is a committed diligent RNID nurse with an unblemished nursing career and has worked at her current location for 14 years. Upon being informed of an allegation made against the claimant, her present employer advised her to go on sick leave in September 2016. The claimant followed this advice and was on sick leave until advised by the INMO that she should have been placed on administrative leave by her employer. The claimant was placed on administrative leave in December 2016 and remained on administrative leave until she returned to work in December 2018. The claimant accrued annual leave in 2016 while on sick leave, and annual leave while on administrative leave. Her employer refused to honour the leave, this is unfair, unjust and unacceptable. In fact, denying the annual leave accrued while on sick leave is a breach of the claimant’s contract. The claimant ’s employer must be made to honour the claimant’s accrual of annual leave for 2016 and 2017.
At the hearing, the claimant was adamant that when she initially commenced leave she was told by the employer to take sick leave and that her husband was a witness to the exchange at the time – it was submitted that it was the employer’s decision to put the claimant off work. It was submitted that health service employees in the wider public sector retain and accrue their annual leave entitlement while under investigation. The claimant contended that other staff had not been put off work when they were the subject of an investigation. It was advanced that the claimant was put in a position that was not of her own making. It was submitted that the claimant had been put through the mill and that because this was the first time the employer had to deal with this matter of rights while under investigation, the employer did not know how to deal with the situation. |
Summary of Respondent’s Case:
1.0 Introduction The case concerns a claim submitted by the INMO under Section 13 of the Industrial Relations Act 1969 to the Workplace Relations Commission on 16th May 2019, whereby the Complainant alleges that she had not received her accrued annual leave entitlements for 2016 and 2017 and is also seeking compensation of €5,000.
2.0 Company Background The respondent are a voluntary Northwest based association which are dedicated to the support of facilities and communities, working towards the fulfilment, needs and rights of people with intellectual disabilities and special needs, to achieve for each individual the greatest possible level of health and social gain. They are a voluntary Organisation providing person centred services for children and adults with special needs and their families.
3.0 Background to the Issue 3.1 The Complainant has been in employment of the Respondent as a Staff Nurse since 22nd August 2005.
3.2 On 16th September 2016 the Complainant commenced a period of certified sick leave up until 2nd December 2016. On 3rd December 2016 the Complainant was placed on a period of administrative leave by her employer due to an ongoing safeguarding concern which arose at that time and this period of administrative leave ran continuously up until 8th November 2018.
On 12th September 2016, the respondent’s Services Manager received a call from the HSE and was forward a copy of the letter been sent to the claimant dated 8th September 2016 relating to a retrospective disclosure in which the claimant had been named in a previous employment. The letter further stated that the retrospective disclosure had progressed as pre Safeguarding Vulnerable Persons at Risk of Abuse National Policy and Procedures 2014. This included the An Garda Sìochàna having undertaken and completed an interview process with the Resident who made the complaint and the An Garda Sìochàna would be in contact with the claimant directly. 3.3 On 8th November 2018 the Complainants administrative leave came to an end at which point she then commenced on a further period of sick leave up until 10th December 2018 at which point she commences on a phased return to work and at her request and with the agreement of all concerned she and subsequently used up the annual leave days for which she would have accrued during the 2018 leave year.
3.4 The Complainant has now received her full annual leave entitlements for the year 2018 and no dispute arises in that respect.
3.5 Following the Complainants return to work on 11th December 2018 the respondent received correspondence from the INMO regarding the Complainants annual leave entitlement for the period 16th September 2016 to 2nd December 2016 and for the entire of the year 2017. A number of meetings ensued between the Claimant and the INMO and the Respondent and Ibec.
3.6 The position of the Board of Directors was that the Complainant had been paid her full yearly salary including premiums for the period she was on administrative leave in 2016, the entire 52 week period in 2017 and for the period up to 8th November 2018 and therefore the Respondent would not be carrying over any annual leave for any periods prior to the 2018 leave year or making any payment in respect to any alleged annual leave entitlements in respect to 2016 or 2017.
The Respondent’s Position 4.0 The Complainant during her period of administrative leave received her full weekly wage entitlements including premiums for the entire period of 3rd December 2016 through to 8th November 2018 which is just short of a two-year period.
4.1 During this entire period the Complainant was not in any way out of pocket or received anything less than she was entitled to as regards any other employee of the Respondent company.
4.2 On her return to work the Respondent agreed to allow the Complaint use up her 2018 annual leave entitlements in order to facilitate her phased return to work. The complaint has presently used up all such annual leave entitlements for the 2018 leave year.
4.3 The Respondent has been more than fair to the Complainant given that she had received her full pay and premiums for the entire two year [period for which she was on administrative leave. The Respondent has paid the Complainant the following for the periods for which she was on administrative leave; €5,482 for 2016 €53,643 for 2017, €46,531 for 2018
During the same period the Respondent incurred the following wage bill in filling the Complainants post whilst she was on the said leave; €15,474 for 2016 €51,036 for 2017, €56,113 for 2018
The Respondent during the period of administrative leave also incurred the following costs; Legal Fees €8,036 Travel €731 Counselling for the Complainant €480 Training €85
5.0 Conclusion
The Complainant is not legally or otherwise entitled to any annual leave entitlements for the years 2016 and 2017. Neither is the Complainant legally entitled to any form of compensation as a result of any matters put forward in her complaint. It is the Respondents position that it would not in any way be just and equitable to concede to the Complainants request in this complaint as by doing so would leave her much better off that any other worker within the Respondents employment. She has not been out of pocket in any way and therefore the Respondent asks the Adjudicator to reject this claim in its entirety.
At the hearing the respondent disputed the claimant’s assertion that she had been told to go on sick leave. It was submitted that throughout the investigation the claimant was in receipt of full pay and premiums and was not in any way out of pocket. As a gesture of goodwill, the respondent had allocated the claimant her full annual leave quota for 2018 which facilitated her phased return to work. It was submitted that national policy did not offer any guidance on the matter in dispute. It was submitted that the employer had been more than fair and that concession of this claim would place the claimant in a better position to that of a worker who had worked for the same period. The respondent had to pay 2 salaries for the period. It was submitted that the claim would be statute barred if pursued under any Act conferring employment rights. |
Recommendation
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I have reviewed the evidence presented at the hearing and noted the respective positions of the parties – I have noted the contents of the company handbook and the provisions contained therein with respect to carry over of leave. I note the union has insisted that the accrual of annual leave while on administrative leave is the norm in the public service – no documentation was presented to support this contention but I note that the respondent did not submit any evidence to contradict this contention. I note the respondent’s handbook refers to “Trust in Care Policy“ and I accept that one of the principles underpinning this policy is that an employee, while under investigation, is not disadvantaged by being placed on administrative leave. I did seek clarification from the INMO regarding any holidays the claimant took during the investigation and it was confirmed that she availed of 2 periods of holidays. Health & Safety imperatives and best practise would provide for line managers to regularly review employees annual leave records and make every effort to ensure that employees can avail of their outstanding leave in a current year.
In all of the circumstances, and in light of the fact that the claimant did avail of 2 holidays during the disputed period, I am recommending in full and final settlement of the dispute that the respondent credit the claimant with 4.2 weeks additional annual leave to be taken in the current year. I do not accept that any compelling evidence was advanced to justify compensation for the respondent’s tardiness given the chronology of events outlined by both parties. This recommendation is based on the unique circumstances pertaining in this dispute and should not be invoked or relied upon at any other forum. |
Dated: 14th February 2020
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Key Words:
Administrative Leave |