Worker

Employer

Anonymised Parties

A General Assistant

A Treatment Centre

Representatives

Adam O'Maolagáin of Forsa

Act

Dispute Reference No.

Date of Receipt

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

IR - SC - 00000268

13/05/2022

This dispute concerns the worker not working for the employer, arising from the Covid pandemic for a period of two years. He says the employer did not follow their procedures and the employer says the worker was offered compensation in line with their procedures.

The worker says that in April 2020 he was instructed not to turn up to work by the employer, in breach of HSE Circular 32/2020, as there was no consultation or agreement with the worker. He was advised he refused overtime that was offered, but the overtime was not available to him because of a decision by Occupational Health; as the worker is seen as an infection risk.

The worker has suffered financially as he has been unable to pick up shifts for 24 months. His union has engaged at length with the employer in regard to appropriate compensation. The worker was finally reinstated in March 2022. Then management advised they considered they had followed the Circular.

The employer says is a General Assistant who participates in a weekend duty roster and/or additional days as required and the duty roster is drafted at the discretion of management. On 24 April 2020 the National Director of Human Resources issued Circular 032/2020 regarding Transmission Risk Mitigation Guidance on the management of staff allocation and redeployment during the Covid pandemic.

Following an outbreak of Covid-19 in March 2020 the Treatment Centre became a Covid-19 environment and had to adhere to all NHPET and HSE restrictions in order to maintain staff and Service User safety during the pandemic. All staff were surveyed and identified where individuals were required to work in locations other than the location of their substantive post or agency placement.

On 8 May 2020 the worker was advised in writing by his line manager that during the pandemic there is considerable risk of cross contamination between different sites and it was, therefore, necessary for him to remain working in his principal site, which is a hospital on the same site as the Treatment Centre and where he works full-time (Monday – Friday). The worker declined the extra hours offered in his principal site on the basis of the risk to him associated with Covid wards, as advised by his Occupational Health Department.

The treatment Centre operated on a reduced opening, Sundays only, so there were fewer requirements for General Assistants. In June 2021 the decision was made not to open on a Saturday permanently. In line with HSE policy on loss of earnings the worker received two instalments, totalling €5,837.52, for his loss of Saturday overtime. In April 2022 the worker was offered €2,030.74 based on all weekends where there was a propensity for him to work overtime and then divided by 4, being the number of weekend staff. This offer was declined.

The worker returned to the weekend roster in the Treatment Centre on 27 March 2022.

The employer says they took very careful consideration of all matters pertaining to staff and Service users during the Covid pandemic, this included implementation of Circular 032/2020 to interrupt the transmission of covid-19 and to prevent onward spread of the disease. The worker was offered alternative work to replace the work in the Treatment Centre but he declined the offer.

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

The worker was employed in his principal site from Monday to Friday and worked in the Treatment Centre on Saturdays and Sundays. When the Covid pandemic came the employer took measures to try and interrupt the transmission of Covid-19 and to prevent the onward spread of the disease. This included the reduction of cross contamination. The worker was told he could not work in both locations and was offered replacement hours in his principal location. The employer says the worker refused these hours. However, the worker says he was immune suppressed and, following consultation with Occupational Health, he was not allowed to work on Covid wards.

The worker was paid compensation of €5,837.52 for the closure of the Treatment Centre on Saturdays. He is seeking further compensation for the further loss of earnings which are estimated at a total of €17,000. The worker was told he could not continue working in the Treatment Centre and was offered compensating hours elsewhere in his principal work location. In consultation with Occupational Health it was deemed to be a personal risk for him to work on open wards and he did not work these hours.

The decision for the worker to not be able to work in the Treatment Centre was based on an assessment to reduce cross-contamination during the Covid pandemic. This was made in line with NPHET and HSE advice and is not a decision I am considering as to whether it was reasonable or not. What is less clear is why there was not a discussion as to whether there were other places in the principal location where he could have worked, particularly as he worked there from Monday to Friday. I conclude there was an onus on the worker to go back to the Manager of the Treatment Centre to clarify the situation with the Occupational Health assessment and to ask for further locations to be considered for him in the principal location.

Taking all the circumstances into account and acknowledging that the work in the Treatment Centre was in addition to his full-time contract in the principal location I recommend the worker accept the offer of €2,030.74 that was made to him by the employer.

IR – Covid working arrangements