LCR22470

FULL RECOMMENDATION

SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969

PARTIES :

HSE

- AND -

A WORKER
(REPRESENTED BY IRISH NURSES AND MIDWIVES ORGANISATION)

DIVISION :

SUBJECT:

1.Appeal Of Adjudication Officer Decision No(S) ADJ-00030447 CA-00040694-001

BACKGROUND:

2.The Worker appealed the Adjudication Officer’s Recommendation to the Labour Court on 14 July 2021 in accordance with Section 13(9) of the Industrial Relations Act, 1969.

On 11 June 2021 the Adjudication Officer issued the following Recommendation:-

"I recommend that the Nurse Manager in the unit where she works, considers each request on an ongoing basis, with reason, and with regard to the employer's duty of care for this employee. I recommend that consideration be given to assuming that the employee has used up two weeks of her sick leave from her forthcoming entitlement, so that her next entitlement to three months' full pay is reduced by two weeks. I recommend that the employees 2020/2021 annual leave entitlement is not affected by her absence of two weeks in March 2020."

DECISION:

This is an appeal by the INMO of an Adjudication Officer’s Recommendation ADJ-00030477 on behalf of a midwife with the HSE.

There are two matters before the Court. The first relates to a claim by the worker to work a rota of seven nights on, seven nights off on a permanent basis. The second matter arises from a grievance by the worker that she had to use two-weeks of her annual leave entitlement, when her employer failed to accommodate her with alternative duties, following occupational health advice not to work in a clinical setting for a two-week period.

The Adjudication Officer rejected the worker’s claim to work a permanent night shift and recommended that the employer continue to consider the worker’s requests to work seven nights on, seven nights off an individual basis and having regard its duty of care to the worker. In relation to the worker’s occupational illness, the Adjudication Officer recommended that consideration be given to allowing the worker avail of two weeks’ sick leave from any future entitlement to sick pay, instead of using her annual leave entitlement.

INMO, on behalf of its member, appealed to the Court on the basis that (i) the employer had provided insufficient rationale for refusing the worker’s request to work a permanent night shift and (ii) the employer had not made any serious attempt to identify alternative work duties when she was prevented from working in her normal role while undergoing a prescribed course of treatment.

The Court has given careful consideration to the oral and written submissions of both parties.

INMO submits that the two issues before the Court must be viewed in the wider context of particular difficulties that the worker was experiencing at the time. When taken off nights in late 2019 she was never given a valid reason for this change. Others were facilitated with red-circled arrangements in relation to working nights in the past and she is simply seeking the same arrangement. Furthermore, it is the worker’s strong view that when she was advised to follow a particular treatment plan for a medical condition, the employer made no real effort to locate alternative duties and simply engaged in a tick-box exercise.

The employer submitted to the Court that it had dealt with the matters raised by the worker in a reasonable and practical fashion. The working rota sought by the worker was discontinued some time ago following a review that was supported by the majority of workers. While three workers had red-circled arrangements in place, only one was a nurse with specific circumstances who had worked nights for 18 years. The worker’s line manager had facilitated her requests for night working in the past and is willing to do so in the future for particular reasons, but not on a permanent basis.

In response to questions from the Court, the employer confirmed that it had made efforts to locate alternative work duties, but these were limited given the clinical nature of the worker’s role. It also confirmed that it was not standard practice for workers to take annual leave in lieu of unpaid sick leave once they have exhausted sick leave entitlement. However, in the particular circumstances of this case, local management had facilitated the worker with the option of using annual leave rather than unpaid sick leave and it was the worker’s choice to avail of this option.

Having considered the submissions of the parties, the Court is of the view that the rationale provided by the employer for not facilitating a request for permanent night working, where that working rota has been discontinued, is a reasonable one. Furthermore, it notes that the employer is willing to continue to facilitate the worker’s requests to work night shifts where that is possible. In light of this, the Court finds the Adjudication Officers recommendation that the employer continue to consider the worker’s requests for night work on an individual basis, having regard for its duty of care to the Worker, to be a reasonable way forward. In addition, in light of the particular circumstances outlined in this case, the Court also recommends that consideration be given to allowing the worker avail of two weeks’ sick leave from any future entitlement to sick pay, instead of using her annual leave entitlement.

The Court finds that the worker’s appeal fails, and the recommendation of the Adjudication Officer is upheld accordingly.

The Court so recommends.

NOTE

Enquiries concerning this Decision should be addressed to Elaine McNeela, Court Secretary.