Complainant

Respondent

Anonymised Parties

A Claimant

A Respondent

Representatives

Seamus Lahart Teachers Union of Ireland

Michelle Ryan Ronan Daly Jermyn Solicitors

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

29/06/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

10/11/2020

The Employee commenced employment with the Employer as a part time Assistant Lecturer on 17 October 2016 and thereafter on 11 September 2018 became a part-time Assistant Lecturer on a contract of indefinite duration.

This complaint was received by the Workplace Relations Commission on 29th June 2020.

The employer has employed the employee since 2012.

Since 2020 the employee has been unable to attend the workplace due to anxiety and depression. Her medical experts believe that certain aspects of her workload have exacerbated her condition.

The employee is under her Doctor and Psychiatrist's care, successfully managing her disability. The employee now wishes to return to her work in with the employer. Under the terms of the Employment Equality Acts, the employee is asking her employer to make reasonable accommodations for her with a disability and make specific changes to her workload and working environment.

Management in the employer organization is asked to take appropriate measures to meet her needs in the workforce by;

·        adapting the premises or the equipment.

·        offering flexible working times.

·        providing training or other supports that might help.

·        adjusting an employee's attendance hours or allowing them to work from home; or

·        assigning employee-specific tasks, and substituting others for equivalent duties, in consultation with the employee.

The employee’s trade union has recently engaged with the employee and the employer HR Manager in to seek agreed adjustments to allow the employee to return to work and resume her role as a lecturer.

Consequently, an exchange of documents has occurred, condensing the matters to be considered in reaching a satisfactory resolution. TUI wishes to acknowledge the engagement by the employee and the HR Manager in this regard. The conversation has helped to identify the issues that can be agreed upon and those that remain unresolved.

Requests of Reasonable Accommodations (RA) when deemed medically fit to return to work.

1.      Removal of all work placement module hours allocated on my timetable and as module leader.

2.      Time off to attend medical and/or treatment appointments.

3.      Request flexible/suitable teaching hours to accommodate return to work.  

4.      Support and guidance with changes in teaching due to COVID.

5.       Provide quiet & private work office away from noise.

6.      Provide new laptop, computer tower & printer with assessment of new ergonomic equipment e.g. keyboard, mouse etc.

7.      Assessment of work space (H&S) and provide new equipment such as chair, tables etc.

8.      Written instructions.

9.      White board

10.   Provide headset for remote learning.

The employee has also requested that the employer agree the following:

·       provide a positive and supportive work environment, with a designated contacted person in HR to whomIcandirectlyraiseconcerns.

·       provide open communication with me privately with a support person in attendance with me in relationtomyworkandnotinameetingwithotheremployees.

·        provide notice of 5 days for all one-to-one meetings, regarding my work or work assignments with a support person of my choosing in attendance.

·        allow time for my attendance to meetings/forums/conferences and make links within my own specialistarea.

·        provide 5 working days' notice of a meeting in the department so that I can prepare.

·        carry out regular risk assessments on stressors like work demands and changes in working practices inthefuture.

·        RequestHRtofacilitateachangeofdepartmentwithinWITiftheabovearenotimplemented.

The Employee has failed to provide the Employee with any submission in relation to this trade dispute and therefore, the Employer must take the complaint form as the extent of the Employee’s complaints.

The complaint is set out in the Complaint Form which lists under the heading “Complaint Specific Details or Statement” the following matters: -

       I.          The Institute’s failure to response in any meaningful to respond the Employee’s individual grievance.

      II.          The Institute’s failure to address the work-related concerns raised by the Employee relating to the following:

a.      Lecturing and teaching duties;

b.      Student work placement assigned tasks;

c.      Work related stress matters; and

d.      Unfair treatment.

The Employer takes issue with and denies all the above claims made by the Employee.

The claim further details what the Employee is seeking to resolve this dispute, as follows:

a.      Assignment of lecturing teaching duties;

b.      Provide the same opportunities for promotion and progression as other academic staff;

c.      Put measures in place to reduce work related stress

d.      Provide management with training on work related stress and equality.

e.       Compensation for the hurt and damaged caused by failure to act and exercise its duty of care to the Employee.

The Employer has been engaging with the Employer’s trade union representative to resolves this trade dispute. The Employer has proposed the following:

1.            A workplace risk assessment of the Employee’s role to review the issues with the duties and put in any reasonable accommodation measures to support her undertaking the role. This will require the Employee being is deemed medically fit to partake in the assessment by Occupational Health;

2.            Ensure the Employer is aware of promotional opportunities for roles such as SL1 and SL2; (these are advertised when a post becomes available and eligible candidates can apply)

3.            Time off to attend appointments as per the national sick leave circular/ the sick leave policy;

4.            Measures as advised by Occupational Health to reasonably accommodate her back to work;

5.            Update meeting on Covid Protocols with HR and prior to return to work;

6.            Ergonomic Assessment by Health & Safety prior to return;

7.            HR support including the Employer’s HR manager as contact person where appropriate;

8.            Endeavour to provide as much notice as possible of staff meetings;

BACKGROUND

1.      The Employee commenced employment with the Employer as a part time Assistant Lecturer on 17 October 2016 and thereafter on 11 September 2018 became a part-time Assistant Lecturer on a contract of indefinite duration. This included 5.37 teaching hours per week. The employee was eligible to convert to a pro-rata contract in March 2019 to 5.37 hours but was interested in additional hours to augment her contract to a full time contract of employment and the Institute sought to meet this request.

2.      The Head of Department in the School of Nursing met with the Employee in March 2019 to discuss a need in the school relating to handling Applied Health Care (BSc in Applied Health Care programmes). I.E the employee was not involved in the Nursing Programmes. These additional hours would augment the Employee’s pro-rata contract hours and create a full time Assistant Lecturer role from 1st March 2019. The Employee accepted the post in full understanding that the role included both placement and lecturing hours. A full-time role with lecturing hours only did not exist.

3.      The Head of Department in the School of Nursing met with the Employee on 18 September 2019 to discuss her role and recent feedback from one of the placement hospitals. At this meeting the Employee asked if there were more lecturing hours available, however the Employee was advised that there were none.

4.      It is disputed that the Employee indicated she found placement hours stressful or that she was suffering from workplace stress at that meeting on 18 September 2019. On 24 September 2019, the Employee progressed to the academic salary scale of Lecturer Career Grade on a contract of indefinite duration. This is an Academic Contract and included both placement and lecturing hours. academic lecturing hours for half the post. The remainder of the post involved assigning students to appropriate placements and linking with placements and students. All lecturers are involved in preparing students for placement.

5.      The Employee and the Head of Department in the School of Nursing had many informal discussions about the role, both the stressors and the enjoyable elements of the role since her appointment. The Head of Department in the School of Nursing never received communication or email detailing stress, unreasonable workload or any other grievance from the Employee before her leave commenced. Thera are no meetings in her diary to reflect any discussion about any issue subsequently raised.

6.      The Employee lodged a stage 2 grievance through her Trade Union Representative on 21 January 2020 and a grievance meeting took place on 24 February 2020.

7.      A stage 3 grievance meeting took place on 8 May 2020 when it was agreed to adjourn for the Employee to provide a list of stressors. The Employee provided this list on 13 May 2020.

8.      The Employee was on certified sick leave from 16 January 2020 to 30 March 2020 and was assessed by the Employer’s Occupational Health Experts, Medmark on two occasions and deemed fit to return to work.

9.      When the Employee returned from sick leave towards the end of semester two 2019/2020 on 31st March 2020 she was asked to conduct a desktop review of the status of placements and to develop an excel sheet to record this data. This would provide the Employee with an opportunity to reacquaint herself with placement issues that had occurred in her absence. The Employee was absent on sick leave for the majority of semester two so there was a short window of two weeks left for teaching online. This had been arranged for delivery with other staff. To minimise disruption to the student cohort before exams and to support the Employee rather than put her under more pressure with coordination of online delivery, the Employee was not allocated these limited teaching duties. This was agreeable to the employee before her return based on a call between the staff member and the HR Manager.

THE EMPLOYER’S CASE

1.           The Employer is, and has always, been committed to supporting the Employee in her return to work and its priority at all times has been to address her concerns and provide a safe place of work for her. The Employer would have hoped to go through her concerns in more detail – face to face in order that they may fully understand her concerns so that they may be addressed. The Employer is conscious that the Employee has been on sick leave for a considerable length of time.

2.           The Employee has raised the issue of work related stress which she alleges the Employer has failed to address. The Employer denies this. The Employee is responsible for three placement modules. There are three placements in a four year programme in Applied Healthcare and student numbers average at 40 per year. The volume and type of work involved in placement modules and academic modules is very similar: student support, encouragement, follow up, staff and student meetings, compliance to academic regulation, instruction in modules and placement.

3.           The Employee has raised the lack of opportunities for promotion and progression from this role. The Employer is and always has been committed to progressing employees internally and are committed to assisting employees when it comes to promotion and progression. It is worth pointing out that the current Head of Department in the School of Nursing was responsible for placement hours for many years and eventually progressed to a role in management.

FURTHER SUBMISSION

1.           The Employer has not received a submission from the Employee in relation to this trade dispute and therefore, this reply is limited to the complaint form and the stage 2 and 3 grievances as the extent of the Employee’s complaints.

2.           In those circumstances the Employer must reserve the right to make further written or oral submissions as appropriate. A number of preliminary points however need to be made and can be made at this stage.

3.           At page 2 of the submission the Employee seeks the following redress: -

(i)                    Assignment of lecturing teaching duties;

(ii)                  Provide the same opportunities for promotion and progression as other academic staff;

(iii)                 Put measures in place to reduce work related stress;

(iv)                 Provide management with training on work related stress and equality.

(v)                  Compensation for the hurt and damaged caused by failure to act and exercise its duty of care to the Employee.

4.           In reply to those matters: -

(i)               The Adjudication Officer, it is respectfully submitted, has no power to award compensation for the hurt and damaged caused by failure to act and exercise its duty of care to the Employee. Whilst such an allegation is denied it is respectfully pointed out that any claim of a personal injury type, as detailed on page 2 of the complaint form of the redress sought, does not lie before the Adjudication Officer who has no such power and the lack of that jurisdiction has been commented on – on a number of occasions by the Labour Court.

(ii)              It is submitted that even though not explicitly raised, Redeployment is not a matter that can be directed either by the Adjudication Officer or complied with by the Employer. Redeployment within the public sector is available in accordance with certain rules and regulations and the Employer is quite happy to cooperate with any application that the Employee might make to be redeployed elsewhere, however, it, the Employer, cannot initiate such a transfer process and could not comply with any direction that it ought to do.

4.      As regards, any allegation on discrimination grounds that the Employer has failed to reasonably accommodate or put measures in place to help the Employee back to work, it is submitted these are not properly before the Adjudication Officer as they were not contained in the complaint form nor did they form part of the Employee’s grievance up to this point. Notwithstanding same, the Employer submits that it has not had an opportunity to put measures in place to reasonably accommodate the Employee back to work. The Employer is guided by the advice of their Occupational Health experts and even when they deemed that the Employee fit to engage with the Employee around her return to work, the Employee disputed this with her own medical practitioner’s opinion. As set out above, the Employer is committed to supporting the Employee in her return to work and put in place such measures as advised by Occupational Health to reasonably accommodate her back to work.

CONCLUSION

1.           The Employer is here to deal with the details of the trade dispute before us today. It is not fully understood how the trade dispute can be processed in the manner sought by the Employee, by the recommending of compensation for the hurt and damaged caused by failure to act and exercise its duty of care to the Employee.

2.           Given there is an ongoing employment relationship between the parties, the Employer would respectfully submit that once medically fit to, the Employee should seek to engage with the Employer directly on this issue, through mediation or some other alternative dispute resolution mechanism, prior to bringing a complaint on these issues to the Workplace Relations Commission.

3.           It is respectfully submitted by the Employer that the trade dispute raised should be declined. The Employer is willing to engage directly with the Employee or through mediation and in conjunction with Occupational Health on her return to work and that in those circumstances the trade dispute is misconceived, and the relief sought by the Employee should be rejected.

4.           In light of the complexity of this matter and the lack of a submission from the Employee’s submission, the Employer must reserve the right to make further written or oral submissions as are appropriate.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

The employee signed and accepted an employment contract.  This contract was headed, Lecturer Career Grade - Contract of Indefinite Duration commencing on 24th September 2019 and signed by the employee on 25th October 2019. The duties for this position were listed as follows:

Duties.

The appointee will play an active role in the academic direction of courses including teaching, research, academic assessment and academic administration. The appointee should carry out such duties as are assigned to him/her in accordance with collective agreements arrived at from time to time and authorised by the Minister for Education and Science including but not limited to: -

a.              Teaching such assigned classes as deemed appropriate by the management of the Institute, day or evening, in accordance with the hours provided for in section 5 above per annum including supervision of post-graduate students where appropriate. There will be a norm of 16 class contact hours per week, which may be varied by Institute management on a pro-rata basis as allowed for in permanent contract from 14to 18following consultation with the Lecturer. A weighting of 1.25 will apply to hours worked after 6 p.m.

(These arrangements are subject to collective agreements arrived at from time to time and authorised by the Minister for Education and Science).

b.              Carrying out assessment, monitoring and evaluation of examinations work, and providing an academic and consultative support to students in their learning activities;

c.              Providing academic input on existing and new courses and course development; and course co-ordination

d.              Engaging in research, consultancy and development work as appropriate;

e.              Participating in committees appropriate to courses and meetings convened by management;

f.               Maintaining appropriate records and making available information as required by

management;

g.              Engaging in promotion including student recruitment as appropriate;

h.              Promoting scholarship

i.                Participating in the development, implementation and maintenance of academic quality assurance arrangements;

j.               Participating in appropriate activities necessary to the development of their department/school and of the Institute;

k.              Directing and supervising the work of Tutor/Demonstrator and taking academic responsibility for the academic standards of this work. When a Lecturer is supervising a Tutor/Demonstrator a reduction in teaching hours will be applied on the basis of a one hour reduction per three hours demonstration/tutorials supervised.

The performance of these duties will require attendance in addition to class contact hours during the normal working week.

The appointee shall carry out the lawful instructions of the Director/President or authorised Officer and comply with the requirements and regulations of the Minister for Education and Science.

This list of duties should form the basis of any risk assessment. Item by item each duty should be looked at, problems identified, and any reasonable accommodation required to overcome these problems must be agreed between the employee and the employer.

Prior to any risk assessment the employee should attend the employer’s Occupational Health Professional who should deem her either fit to engage or unfit to engage. If fit to engage the aforementioned risk assessment should commence without delay.

The employee’s representative provided a list of requests when the employee is deemed fit to return to work. This exercise should be continued when the employee is deemed fit to engage and in relation to points 3,4,8 and 9 the employee’s representative should provide the further information / clarifications requested by the employer.

It may be the case that the employee cannot be given the reasonable accommodation requested e.g. point 1 “removal of all work placement hours allocated on the employee’s timetable as module leader”. The employee and employer should make an attempt to identify the elements of the task in an attempt to identify the problem areas.

In relation to an ergonomic assessment of the employee’s work station. This should take place as soon as possible once the employee is deemed fit to engage. The employee should have an active input into this ergonomic assessment. In saying this I do realise the employee will have to go to her place of work, I do not consider this unreasonable under the circumstances.

The employer at point 3 of their conclusion state the following:

It is respectfully submitted by the Employer that the trade dispute raised should be declined. The Employer is willing to engage directly with the Employee or through mediation and in conjunction with Occupational Health on her return to work and that in those circumstances the trade dispute is misconceived, and the relief sought by the Employee should be rejected.

To some extent I agree with the employer however the required engagement can proceed once the employee is deemed fit to engage and not necessarily be delayed until she comes back to work.

The employee is seeking compensation for the hurt and damage caused to the employee by the employer’s failure to act and exercise its duty of care to the employee. I am not recommending the payment of compensation. If this is the employee’s objective she is in the wrong forum.

As outlined above, this is my recommendation.

Industrial Relations Act, 1969.