Complainant

Respondent

Anonymised Parties

A Worker

An Employer

Representatives

Lisa Connell Fórsa Trade Union

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-00042812-001

03/03/2021

The Worker is employed as a Social Worker. In October 2019 Management compulsorily redeployed three staff into the CIC team through a lottery basis of names being pulled out of a hat. This was done without consultation. Fórsa engaged with the employer as to how staff were being redeployed without consultation, which is a requirement under national and public service agreements.

In November 2019, the Worker received notification by telephone from the Area Manager that she was being compulsory redeployed into CIC. No detail or correspondence was ever provided around the skills match process, despite continued requests for this information. Her union had also outlined to her employer, at the time, the detrimental effects this role would have on her personally and professionally. The Worker invoked the grievance procedure. There were significant delays on Managements side in hearing the case. As a result, the Worker went out on stress related sick leave on the basis of her treatment in the workplace, the undue stress she was placed under.

On the 24th of October Fórsa wrote to the Worker’s Area Manager outlining further concern around the process and outlining their obligation to meaningful consultation. It was requested that any re-deployments would be paused until engagement could formally occur.

On the 29th October Forsa received a reply outlining they were seeking staff to take on their new assignments the following week. They were again reminded that a formal meeting was being requested.  Management agreed to a meeting on the 6th November. Prior to that meeting re-deployment took place. The Worker was advised not to agree to that. After that the Employer informed the Worker that her re-deployment would be held back until the 7th at 9a.m which would allow for the meeting on the 6th to take place. At the meeting Management agreed to re-engage with staff on the need to staff the CIC unit and for a meeting to occur immediately to discuss with staff any concerns or issues. A proposal was put to management however, no agreement was reached.

On the 12th November the Worker got a call to say that she was being re-deployed. She enquiry what criteria were used to do the skills match. She got no response. On the 14th she emailed again setting out how a move to that role would have a detrimental effect on her. She also set out that due to the stress this proposed move was having on her, she had to attend with her GP. Her GP recommended, on health grounds that she should not be re-deployed. 

On the 15th of November the Worker was informed that the decision to redeploy her had been deferred so that she could engage with Occupational Health. An appointment was set up for the 20th of November. Occupational health concluded that the redeployment issue was a matter for management. Her GP concluded that she should not be redeployed on health grounds. On the 28th of November the Worker received a revised Occupational Health report. It transpired that her line manager had been advised she was to be redeployed despite medical evidence to the contrary. The Complainant investigated this matter and discovered that management had put an additional question to Occupational Health as to whether she was fit to work as a social Worker. This was done without the Worker’s knowledge or consent.

On the 2nd of December the Worker was instructed by her manager that she was to work in CIC regardless of the issues she had raised. Correspondence went back and forth between the parties were the Worker’s Union tried to outline once again the Worker’s issues in relation to redeployment and setting out management’s mismanagement of the situation and how repeated phone calls in relation to the matter was tantamount to harassing their member.

A meeting took place on the 17th of December where management gave an undertaking to provide a proposal by the following day.

On the 23rd of December management informed the Worker that the unions proposals were not going to be agreed and that the decision to re-deploy the Worker stood.

The Worker then invoked the grievance procedure on the 9th of January wherein she again provided details in relation to her personal and medical circumstances as to why she could not work in CIC. No response was received within the seven days provided in the policy. The Workers Union followed up on the 21st of January and 4th of February seeking engagement. A meeting took place on the 14th of February. The Grievance Officer indicated that the grievance was being upheld in part with a further explanatory note which would issue by the 25th of February. The further explanatory note was not forthcoming. In the meantime, the Worker was bombarded with texts and phone calls in relation to the issue. This was when she was on sick leave. The Worker on the 9th, 25th and 26th of March sought a formal outcome from her grievance. She received a formal response on the 26th of March setting out that she was not required to redeploy to CIC and that area management could explore assigning her a small number of CIC cases.

The Worker then returned to work. 

The Worker has been employed by the Respondent since April 2014. In September 2019 the Respondent had a deficit of Social Workers in the CIC team. This deficit posed a risk to both the agency and the individuals involved, who were in care. In October 2019 the Area Manager issued an expression of interest to all social Workers in relation to moving to the CIC team. They received no responses. A second expression of interest email was sent on the 11th of October. In that email it set out that if there were no expressions received, a separate process would be invoked.

The assignment was based on specific criteria.

The Worker was advised of the decision to reassign her on the 8th of November 2019. The Worker emailed her Business Support manager on 14th November 2019 outlining her objections to being reassigned. Later that day the Worker emailed her HR regional managers advising that she felt she needed to attend her GP to discuss the proposed reassignment. She later outlined that are GP concluded that the move to CIC would be detrimental to her mental health. On the 15th of November the Worker’s Union requested that she remain in her current role due to the medical opinion set out in her GP’s letter. She was then advised that she would be referred to Occupational Health to assess their suitability for reassignment. She was informed on the 15th of November that her reassignment was being deferred pending Occupational Health report. The report was received on the 22nd of November however it was unclear regarding the Workers fitness to be reassigned. Following clarification, it was confirmed that the Worker was fit to carry out a social Worker role within the CIC team. On the 3rd of December clarification was given to the Worker in relation to the reasons why management had gone back to Occupational Health seeking clarification. The Worker went out on certified sick leave on the 10th of December 2019.

A meeting took place on the 17th of December when the Worker’s Union put forward a number of proposals as an alternative to the Worker’s reassignment. On the 23rd of December management informed the Worker of their decision in relation to her union’s proposals.

On the 9th of January 2020 the Worker invoked the grievance procedure. There were delays in this process however the delays were outside of the control of the Respondent. On the 21st of February the grievance officer emailed the Worker advising her that he was upholding her grievance in part and that the Worker would not be required to be reassigned to the CIC team.

With effect from 11th of March 2020 the Worker’s six pay was reduced to half pay as she had reached the limit of 92 days at full pay in the previous 12-months.

A full decision did not issue until the 26th of March 2020 the delay was partly due to the covid-19 pandemic. That decision notified the Worker that she would only have to take on a small number of CIC cases.

The Worker returned to work on the 31st of March 2020.

The outcome of the grievance was not appealed. It was therefore understood by Management that the Worker was accepting the outcome of the grievance. 

Following the grievance decision Management commence the process of allocating CIC cases to staff on the Carlow fostering team. Request to take on CIC cases was a reasonable management request and staff were advised to take on the cases ‘under protest’ in line with the agreed dispute resolution mechanisms and that continued failure to follow a reasonable request may leave Management with no option but to invoke the disciplinary procedure.

Despite correspondence between the Management and the Worker’s Union a resolution could not be reached in relation to the issue. A meeting was set up for the 10th of June to discuss the issue. A follow-up letter was issued on the 17th of June 2020.

On the 22nd of May 2020 the Worker’s Union wrote to the Regional HR Manager requesting that the Worker’s sick leave be reinstated for the period 10th December 2019 -  30th March 2020 as this period was due to work-related stress, they requested that the Worker’s sick leave pay be returned to full pay.

On the 25th May the Worker was informed that Management were not in a position to alter the records or to re-instate either sick leave or salary in this instance.

A meeting was held on the 5th of November where the request to reinstate the sick pay was discussed. It was then agreed that this matter would progress to a stage 3 grievance hearing.

The hearing was held on 16th December 2020 and the outcome issued 11th of February 2021. 

Having considered all of the evidence adduced by both parties together with the documentation, I am making the following recommendations:

1.       The Respondent is to adhere to the advice given by the Worker’s General Practitioner.

2.       Respondent is to carry out a review to ensure a fair and equal apportionment of the CIC cases.

3.       The Respondent is to pay to the Worker the sum of € 1,250.00 (being three weeks half pay) within four weeks from the date of receipt of this recommendation.

4.       The Respondent is to pay an additional € 1,250.00 (being three weeks half pay in relation to sick leave) within four weeks from the date of receipt of this recommendation.

5.       The Respondent is to compensate the Worker in the sum of € 10,000.00 for the illness she suffered as a direct result of their treatment of her. The said sum is to be paid within six weeks from the date of receipt of this recommendation.

I make the above recommendations based on a finding that the Respondent prioritised its need to fill the vacant positions on the CIC team over the Worker’s mental health. It was abundantly clear from her Union’s correspondence and from the medical evidence from her GP, who knows her complete medical history, that a move to the CIC would be detrimental to her. Despite that the Respondent ploughed ahead trying to solve its difficulty to the Worker’s detriment. I also note that much of the correspondence between the parties were during the period of sick leave. That is not appropriate conduct for any employer particularly in circumstances where the issue they were corresponding about was the very issue that led to the sick leave in the first place.

1.       The Respondent is to adhere to the advice given by the Worker’s General Practitioner.

2.       Respondent is to carry out a review to ensure a fair and equal apportionment of the CIC cases.

3.       The Respondent is to pay to the Worker the sum of € 1,250.00 (being three weeks half pay) within four weeks from the date of receipt of this recommendation.

4.       The Respondent is to pay an additional € 1,250.00 (being three weeks half pay in relation to sick leave) within four weeks from the date of receipt of this recommendation.

5.       The Respondent is to compensate the Work in the sum of € 10,000.00 for the illness she suffered as a direct result of their treatment of her. The said sum is to be paid within six weeks from the date of receipt of this recommendation.