ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00024306
Parties:
| Complainant | Respondent |
Anonymised Parties | Care Worker | Health |
Representatives | Edmond Smith Independent Workers Union | Maria Daly Employee Relations Manager |
Complaint:
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-00030995-001 | 19/09/2019 |
Date of Adjudication Hearing: 04/02/2020
Workplace Relations Commission Adjudication Officer: Jim O'Connell
Procedure:
In accordance with Section 41 of the Workplace Relations Act, Section 13 of the Industrial Relations Acts 1969] following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute
Background
The claimant commenced working for the respondent in 2000 as temporary care assistant duties, and housekeeping duties on units. A Rights Commissioner Hearing on the 22nd April 2005 agreement was reached where the claimant permanency would be back dated as an Attendant, doing care Assistant duties and Housekeeping duties to the 14th July 2003. It was submitted that all increments or entitlements were also backdated to that date.
The claimant was out sick with an undiagnosed injury at the time it was submitted, the Rights Commissioner requested that when the claimant was fit to return to work she was to contact the local respondent’s manager.
In her complaint form to the WRC the claimant submitted;
“I wish to have all matters relating to my employment at the respondent’s location ((name submitted) to be investigated and all matters relating to the lack of response by the respondent to my complaints to be investigated also”
The claimant submitted documents from dates in 2004 to 2019 to support her position.
The claimant submitted that during her period of employment with the respondent she had difficulties with her former Union representatives who in her opinion failed to represent her.
Summary of respondent’s position
1 the respondent confirmed that the claimant commenced employment on the 30th April 2000
2 The claimant was assigned to duties relevant to group! attendant position (now referred to as band 4 support Services Staff following a national agreement relating to support Services grades which was reached between the respondent and SIPTU in June 2005
3 The Claimant commenced a period of absence which commenced initially following an injury at work (circa 18th June 2004) and has not resumed duty despite a number of requests to meet with her (claimant) including attempts to engage with the claimant following a Rights Commissioner hearing which took place on the 16th March 2005
4 Notwithstanding the claimant ongoing absence from work owing to illness, in February 2005 the respondent circulated a memo to all staff, including the claimant advising of promotional opportunities for temporary/Acting Healthcare Assistant positions.
5 In June 2005 the respondent wrote to the claimant requesting that she submit specific documentation in order to progress her appointment to that of permanent contract of employment. No response was received from the claimant.
6 In 2007, the claimant requested the respondent to provide her with a letter confirming her employment status which the claimant advised was for Social Welfares
7 In 2009, a settlement was reached between the claimant and the respondent in conjunction with State Claims Agency which provided a payment to the claimant for future loss of earnings as she was deemed unfit to return to her role.
8 The respondent submitted that it was their understanding that the claimant would not be returning to her employment.
9 The respondent services have been significantly reconfigured over the last four years in line with national policy and statutory regulations government disability services
10 The change has required staff to redeploy to community housing settings to continue support and care for residents, a number of positions have been reconfigured
11 A number of appointments were arranged for the claimant to attend the Occupational Health and she attended same in September 2017
12 A meeting took place with the claimant and her representative on the 4th December 2017 and a number of options were put to the claimant
13 In December 2018 the respondent formally wrote to claimant outlining the options that had previously been put forward in December which would assist the progressing return to work
14 On the 12th December the claimant advised that she wished to be given a position as Carer/Social Care Worker
15 It is noted that both roles require post holders to have achieved a specific qualification. The claimant was invited to a meeting on the 28th January 2019
16 Further Correspondence was received from the claimant dated the 14th February 2019 where she confirmed that she (claimant) was willing to complete Fetec Level 5 which was due to commence in September 2019
17 Despite a further meeting on the 7th June 2019 the claimant has not accepted any return to work options put forward by the respondent
Finally, the respondent submitted that it is not in a position to continue to “hold open” the above-mentioned return to work options indefinitely
Findings
Both parties made written and verbal submissions at the hearing
I find that the protection of Employee (Fixed Term) Work Act came into force in June 2003.
I find that issues raised by the claimant date back to 2004
I find that due to the efflux of time it is not reasonable to backdate any investigation at this point and time
I find that employment position over the course of time have been amended and changed at times due to legislation and agreements.
I find that while there may be rights and wrongs on both sides going back over time I find that the most important aspect now under this legislation how do we resolve the dispute going forward.
I find that the options put forward by the respondent are not unreasonable in the circumstances and on that basis, I am making the following
Recommendation
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
A The claimant confirms her preferred option in writing from list presented to her in December 2018 within One (1) month from the date of this recommendation
B The respondent advises the claimant of the time frame where her (claimant) choice will be implemented.
Dated: July 10th 2020
Workplace Relations Commission Adjudication Officer: Jim O'Connell
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