Worker

Employer

Anonymised Parties

A worker

An employer

Act

Dispute Reference No.

Date of Receipt

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

CA - 00043019

12/03/2021

This complaint was received by the Workplace Relations commission on 12th March 2021.

The Complainant is referred to a ‘a worker’ and the Respondent is referred to as ‘the employer’ (where possible).

Introduction

This complaint pertains to a claim by Ms DO’N (referred to as a worker) to be classified as a HSE employee and be encompassed by the terms and conditions of a HSE Employee since commencing work in the HSE community services.

 Background

The worker trained as a psychiatric nurse in St Vincent’s Hospital Fairview 1991/1994, she interviewed for a position as a psychiatric nurse in Dublin North Central in 1995, the interview panel consisted of Nursing Officers, representing Eastern Health Board (EHB), St. Vincent’s Hospital Fairview and the Mater Hospital and the interview took place in Park House the Head Quarters of the HSE. 

The worker was successful at interview, was offered a psychiatric staff nurse position and was asked to select a location to work in out of one of the following: St. Vincent’s Hospital Fairview, the Mater Hospital or the Eastern Health Board.

 The worker selected St Vincent’s Hospital as it was nearer to where she lived at that time. No explanation was given to her with regard to the consequences in relation to which location she selected and the impact on her terms and conditions of employment. 

The worker would not have knowingly chosen a location which entitled her to lesser terms and conditions of employment had the implication of this choice been explained to her. 

The worker commenced working as a psychiatric staff nurse in St. Vincent’s Hospital Fairview in 1995. She was not issued with a contract for this position.

 In March 1996 she interviewed for a position of acting community psychiatric nurse.  The worker commenced work in the Community Mental Health Services in May 1996 and was made permanent as a Community Mental Health Nurse (CMHN) for Dublin North Central in 2000. She was not issued with a contract for this promotional position.  In her role as a Community Mental Health she provides a key worker service to HSE patients, through clinics and home visits. She is involved in presentations to community groups on mental health on behalf of the HSE. She implements and has contributed to HSE policies, she provides clinical supervision to staff including the HSE Adult and Child and Adolescent Mental Health community services and is informed by HSE policy and Guidelines.

The worker continues in this role to date she is based in Millmount Centre, Drumcondra Dublin and is governed by the HSE. St Vincent’s Hospital (section 38) only provides inpatient and residential care and does not provide a community mental health service.

 The following applies to the worker’s employment as a community mental health nurse:

·       Is governed by HSE policies

·       Her base, Millmount is a HSE premises.

·       The worker reports to a HSE manager

·       Records her nursing entries in HSE clinical files

·       Her ID badge, key and access fobs are all HSE 

·       She accesses IT with HSE Laptops, Computers

·       She is supplied with a HSE phone

·       The care she provides is solely to HSE Patients. 

·       Other than getting paid by St. Vincent’s Hospital she has no relationship with St Vincent’s.  

·       CMHN’s have been refused access to the unit in St. Vincent’s Hospital for the past few years.

·       CMHN’s and community staff of all disciplines are not permitted to hold their ward multidisciplinary meetings in the hospital.

·       CMHN’s are no longer permitted to hold their meetings in St. Vincent’s Hospital.

·       The worker subscribes to the Voluntary Hospitals Superannuation Scheme, which requires her to work a minimum of 40 years and minimum retirement age is 60 years. The local Government Superannuation scheme applies to Health Board employees.

·       Psychiatric Nurses working in the psychiatric services have more favourable superannuation benefits, i.e., they can retire at 55 years of age after 30 years’ service whereby every year after 20 counts as double.

These entitlements arise from the provisions of the Mental Treatment Act 1945 and apply to psychiatric nurses employed by the Health Board prior to April 1st, 2004. It is the worker’s contention that she should be encompassed by the Local Government Superannuation Scheme. 

Process to Date regarding the worker’s claim

·       This matter has been ongoing since the late 1990’s without resolution.

·        In August 2017 contact was made with the Psychiatric Nurses Association (PNA) in relation to this matter following which a letter was sent by PNA General Secretary to the Pensions Manager, HSE on 10/01/2017. As there was no reply a reminder was sent on 19/10/17.       

·        On the 23/10/17 correspondence was received from the Pensions Manager stating that the matter is not “a superannuation function, it is a HR/Contract issue and any matter arising should be addressed via normal HR channels. 

·        A meeting was convened with the Human Resource Manager for CHO9, in March 2018.   

·        A reconvened meeting took place with Human Resources HSE in June 2018.  

·        The matter was referred to the WRC for conciliation on 22/10/2018. HSE responded on the 16/01/19, declining the invitation.        

·        On the 12/07/19 PNA raised the matter in a discussion with Head of Human Resources CHO9 requesting a meeting.

·       This was followed by emails between HR Management between July and October 2019 with regard to organising a meeting.   

·        PNA wrote to management on 12/11/2019 outlining the case and requesting a meeting.                     

·       PNA wrote again on 15/01/2020 once again requesting a meeting as he had not received a reply to his letter of 12/11/19.      

·        On 30/01/2020 the newly appointed Head of Human Resources, CHO9 responded to the previous two letters. The letter rejected the claim.

·       Due to the Covid 19 pandemic the issue was not progressed until this referral to the WRC on 12/03/21. 

Considerations 

·       When the worker commenced work as a Psychiatric staff nurse in 1995 in Dublin North Central, she initially worked in St Vincent’s Hospital. She did not receive a contract of employment.

·       The EHB failed in its duty to the worker to provide her with any information to make an informed decision regarding the location of employment which had significant and long term repercussions for her in relation to terms and conditions of employment and specifically in relation to future pension entitlements.

·        Had the worker been aware of the difference in pension entitlement that arose from opting for a specific location she would have opted to commence employment in the EHB.

·        In 1996 the worker was interviewed for a position as an Acting Community psychiatric nurse by an EHB Assistant Directors of Nursing and was made permanent in the position in 2000.

·       The worker did not receive a contract for this position.

·       Community Mental Health Services for Dublin North Central are only provided by HSE Staff.

·       All the staff, of various disciplines, who work with the worker in Millmount Centre are HSE Employees. 

·       It stands to reason that the worker should also be classified as a HSE employee since her commencement of employment in the HSE community services. 

 Claim 

·       It is respectfully request that it is recommended that the worker is classified as a HSE Employee from the commencement of her employment as a community nurse in 1997 and is encompassed by the HSE Terms and Conditions of employment from that time.

Introduction.

The complainant (now referred to as the worker) submitted a complaint to the Workplace Relations Commission ("WRC") pursuant to section 13 of the Industrial Relations Act, 1969 received by them on the 12th March 2021. Her complaint relates to her claim that she has suffered a loss in her terms and conditions of employment as a result of her employment in St Vincent's Hospital Fairview.

The HSE do not accept the claim that the worker is an employee of the HSE. She has been contracted by St Vincent's Hospital Fairview Dublin and has been paid by that organisation from the beginning of her career.

Background.

The complainant was employed as Psychiatric Nurse in St Vincent's Hospital Fairview. St Vincent's is a section 38 hospital and receives funding from the HSE.

The PNA have met with HSE management on a number of occasions in relation to the worker and a number of other nurses employed within St Vincent's Hospital Fairview. The employer has  been clear that they do not believe that they are the employer in this case. This has been communicated to the PNA and also to the WRC.

The worker’s complaint and a number of other similar complaints were referred to the WRC on the 12th March 2021.

The Claim

The essence of this complaint is that the worker did not receive the same terms and conditions in terms of pension as a HSE employee.

Some psychiatric nurses were entitled to fast accrual terms which entitles them to doubling of years' service for qualifying service over twenty years. This means that in some cases Psychiatric nurses can qualify to retire at the age of 55. The terms and conditions to this scheme are contained in the Health and Mental Treatment Act 1966. Qualifying organisations have to be registered in the section 65 register under the Health and Mental Treatment Act 1966.

All recipients of these enhanced retirement terms must be certified by the Directors of HR for their locations. St Vincent's Hospital Fairview is not on the section 65 register of approved centres.

It is the employer’s understanding that the worker is covered by the St Vincent's Voluntary Health Superannuation Scheme. In effect this is the same as other public service pension schemes. The terms and conditions for the worker as an employee of St Vincent's Hospital Fairview are the exact same in every respect to a nurse within the HSE other than some nurses in the HSE are entitled to fast accrual under section 65 of the Health and Mental Treatment Act 1966.

It is the employer’s position that the claim is not an individual claim but a claim on behalf of a number of Psychiatric Nurses for admission to the fast accrual pension scheme under section 65 of the 1966 Act. It is the employer position that this issue cannot be dealt with as an individual issue and must be dealt as a collective issue.

The issue has come before the Labour Court before and a recommendation was made by the court in LCR15647.

The Court recommended that the Union make a separate submission to the Pensions Commission on this issue. To the knowledge of the employer this submission was never made. It is the view of the HSE that given the collective nature of this claim the issue should have been referred to either the Labour Court or to the Pensions Ombudsman.

Given the previous decision of the Labour Court it is likely that the most appropriate pathway for this collective issue to be dealt with is a referral to the pension's ombudsman.

The issue has also been adjudicated upon by an adjudication officer in a case taken by two of the worker’s colleagues on the 21st February 2022. An adjudication officer recommendation was issued on the 24th of February. The Adjudication officer "was of the view that while the claim was ostensibly about the Workers employment status it is in reality a claim about the workers' pension entitlements".

Even if the staff member concerned was transferred to the HSE it is not within the power of any manager in that organisation to grant her access to the fast accrual pension scheme. This scheme is governed by strict requirements which are underpinned by legislation. Should any employee wish to appeal this they can access an internal pension's appeal mechanism and ultimately bring a case to the pension ombudsman.

Similar cases have been adjudicated on in the past number of weeks and the adjudicator has found that the issues in dispute are pension issues and cannot be dealt with under the Industrial Relations Acts.

Conclusion

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

Almost 25 years ago (23rd September 1997) the Labour Court addressed this issue when the said in LCR 15647:

‘The Labour Court has sympathy with the Trade Union claim as presented but consider two impediments exist preventing the Court from recommending in favour of the claim.

1.       Mental Health Treatment Act.

2.       The agreement on clause 4 of Partnership 2000.

The Court recommends the Union makes a separate submission to the Pensions Commission on this issue’.

As per submission the representative from the Respondent has stated that “To the knowledge of the employer this submission was never made”.

Perhaps the PNA may consider making such submission to the Pensions Ombudsman.

Whilst the complaint as presented is on behalf of one worker the issue in question relates to a group of workers and it is for this reason, I cannot make a favourable recommendation on behalf of this individual worker.