Complainant

Respondent

Anonymised Parties

A Nurse

A Health Provider

Representatives

INMO

Act

Dispute Reference No.

Date of Receipt

Industrial Relations Act, 1969

CA-00044437-001

25/05/2021

The complainant is a nurse and was injured in the courses of her duty and subsequently went out on sick leave on October 28th, 2020. Her employer operates an injury at work grant to which she is entitled and for which she applied.

However, she did not receive any payment until five months later.

Her management was repeatedly advised that her sick pay entitlement had been exhausted as a result of a previously extended period on sick leave due to a serious illness.

This left her struggling financially and despite this the respondent failed to pay monies due within a reasonable time frame or even to make an interim payment having regard to her straitened situation.

A second matter relates to manager breaching her confidentiality/GDPR on 8th October 2020 when she sent an email to her relating to a matter she had raised with her union and copied this to a number of other managers in the region who had no involvement in the issue.

She breached her confidentiality/GDPR once againin an email in late February 2021 copied to the same managers in which she disclosed confidential informationrelating to her injury at work claim. The INMO had lodged a grievance on behalf of the complainant relating to theabove matters. However it took ten weeks for management to hear the grievance rather than one week provided forinthe policy.

The respondent denies that here was any data protection breach.

There had been a reference to the complainant’s union membership, but this was not a breach of her personal data. This matter was fully processed through the internal grievance machinery and was not upheld

Regarding the delay in making a payment to the complainant the respondent accepts he general outline pf the complainant ‘s position and that there was a delay, initially due to the line manager’s uncertainty as to how to categorise the application.

The delay was further compounded by difficulties arising from the pandemic but there is no connection between the delay in the payment and any other matter such as has been referred to in relation to the GDPR issue.

The main issue in this case is a simple one, despite a great deal of obfuscating material in the complainant’s submission.

The complainant found herself in the unfortunate position of being on sick leave but, having exhausted her entitlement to sick payment, being without any income.

There was a further complaint of an alleged breach of the complainant’s data protection rights and other poor relationships with her colleagues for reasons that are not entirely clear, as there is no jurisdiction under a referral such as this to deal with data protection complaints.

There was an implication that the delay in making the payment to the complainant might have some retaliatory element to it. There was a degree of somewhat overstated outrage about the content of the letter containing the alleged breach which in the main referred to the complainant’s management of a separate issue.

The union presenting the case seem to imply that a revelation that a person working in a category for which it had representation rights was actually a member of that union carried some adverse implication., which is odd, to put it mildly. This is especially the case in respect of the current resp which is a highly-unionised workplace.

In any event, when all this undergrowth was stripped away, what remained was a very substantial case of unacceptable treatment of the complainant, even without all this implied speculation as to the motive for it, which on these facts is irrelevant.

And indeed, this was largely accepted by the respondent which must regard what happened in this case as falling well short of its own standards and as being somewhat uncharacteristic of its general management of such issues.

The complainant went on sick leave on October 28th, 2020 and she requested payment on November 9th.

Nothing happened and on December 2nd she was referred for Occupational Health review, but this resulted on some delay.

Because of the delay her union lodged a grievance under the Grievance Machinery on December 17th and pursued it in early January.

This was an odd approach for any trade union especially in a situation of some urgency and despite its justification it offered for it; that the time limits would accelerate a response, it has to be regarded as an error of judgement and a more robust response was required. It, after all, described the complainant as being in ‘serious financial difficulty’.

A Grievance Process exists primarily to allow workers to pursue individual grievances. It is not the mechanism through which a trade union asserts its representative rights on behalf of a member especially in circumstances of the urgency and seriousness described here and the union’s approach unwittingly contributed to the delay in having the matter resolved.

I am at a loss to know why the union could not have arranged an urgent meeting with the relevant HR official of the respondent and have the matter thrashed out and resolved as a matter of urgency (pandemic notwithstanding). This is how normal trade union; management business is conducted in situations of this urgency.

This lack of focus on the central issue facing the complainant was also evident in the disproportionate emphasis laid on the ancillary aspects of this complaint which are, for the most part, totally overstated. That may arise from some of the historic issues between the parties. The correspondence in question made unnecessary and gratuitous references to the complainant and it is easy to understand why she found them annoying. However, in the context of the main complaint here they are no more than that.

Because, this pales into insignificance set against the respondent’s failure to honour its duty of care to an employee in distress and the delay in arranging some payment to the complainant was inexcusable and wrong.

I note that at the end of the grievance process a senior HR official of the respondent stated on May 5th, 2021 that; 'internal processes/procedures & communication between relevant departments/employees should be reviewed as such applications should be more streamlined/prioritised for implementation.'

She further stated that 'it is also recognised that it would have been assistive for the Temporary Rehabilitation Remuneration application to have been supported/approved as an interim payment'.

I can only strongly endorse this conclusion.

In considering my recommendation I take account not only of the serious failure of the respondent to respond actively and sympathetically to the distress of the complainant which I consider to be at the upper end of the spectrum of gravity in such matters, but the extent to which this was a departure from its normal standards, based on my direct experience.

I therefore recommend a payment of €10,00.00 for the breach of her general rights as an employee.

I also recommend that the respondent implement the outcome of its internal review of this issue with an eye to whatever improvements it might make in the event unfortunate recurrence of such an incident.

The union in the case could do worse than review its handling of the matter for the reasons set out above.

I uphold complaint CA-00044437-001 for the reasons stated above and recommend as follows.

I recommend a payment of €10,000.00 be made to the complainant for the serious breach of her general rights as an employee.

I also recommend that the respondent implement the outcome of its internal review of this issue with an eye to whatever improvements it might make in the event of an unfortunate recurrence of such an incident, as recommended in its internal review in May 2021.

Breach of employee rights.