Worker

Employer

Anonymised Parties

A Health worker

A Health Sector employer

Representatives

Joe Hoolan INMO

 HR Advisor

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 - 00000087

14/04/2022

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

Additional information in the form of Sick Leave Certificates (as agreed at the hearing) was provided to the WRC up to 2 May 2023.

The worker submitted that the employer consciously, repeatedly and grievously misapplied their own policies with very significant professional and personal consequences for the worker. The workers representative sought to have her sick leave record set aside and due to a multiplicity of failures throughout the process is seeking €50,000 in compensation.

The worker is a public health nurse and a qualified registered general nurse, registered sick children's nurse, and registered midwife.

In May 2021 the worker commenced a period of sick leave following receipt of a letter from the director of public health nursing which informed her that she was the subject of several complaints.  She remained on sick leave until her return to work in January 2022.

The worker had a number of concerns and brought a grievance.  She also sought, through the grievance process, to have her sick leave record set aside. She noted that despite her grievance being upheld, the employer refused to amend her sick leave record resulting in a financial loss to her and placing her at risk of further loss if she becomes ill for the next four years.

The grievance outcome identified serious multiple failings on the part of the employer and raised serious questions as to why the worker was treated in this fashion.

The employer noted that the findings of the Stage 2 Grievance Report confirmed there was merit in the grievance which was taken on behalf of the worker. The employer noted that the complainant was seeking to have her sick leave set aside. In response it was outlined that the workers grievance did not relate to a breach of the provisions of a safe place of work or to a breach of the employer's duty of care to her.

While the worker may feel that her absence was caused by the actions of the employer, the General practitioner deemed her medically unfit to attend work based on how she presented at that time. She was paid appropriately under the provisions of the public service sick leave scheme and was entitled to apply to the Department of Social welfare seeking pain payment of illness benefit during her period of absence.

As no causal link was established between the workers absence and the management of the performance process which was the subject of her grievance it was confirmed to her that her sickly record would not be set aside.

The employer submitted that it has been established that an adjudication officer could not make any amendment to the nationally agreed sick leave scheme in the case of ADJ 25428. Additionally in a different complaint ADJ 29603 it was noted that in that case a complainant had the opportunity at all times to return to work.

The employer considers that the complainant was paid in accordance with provisions of the public service sick leave scheme and therefore it is not within its gift to alter the provisions of that nationally agreed scheme.

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

The outcome of the stage two grievance hearing held on Wednesday 2 February 2022 is not in dispute.  The Stage 2 Grievance Report is comprehensive in its consideration of the issues raised by the worker, and completely supports her contentions regarding the way alleged complaints against her were pursued.  Of particular relevance is the conclusion by the decision maker that, in her view, the worker “was not afforded fair and due process from the outset as the incorrect policies and procedures were applied or referenced”. 

The decision maker also noted that reference was made to six reports - none of which could be found and sought to remove any reference to these reports from the workers personnel file. Her recommendation was that the worker should be retrospectively appointed to the appropriate salary scale. She noted that it was not within her purview to set aside the sick leave record and furthermore the decision maker offered an unreserved apology on the part of the employer.

Having considered the outcome of the Stage 2 Grievance Report and having had sight of all the relevant sick leave certificates, I am satisfied that most of the certs make reference to the worker being out sick due to work related stress. In the circumstances and as put forward by the worker, I am satisfied that the stress referred to by her medical practitioner is attributable to “not being afforded fair and due process from the outset”.

Accordingly, I consider that it would be unfair to penalise the worker for being off sick as a result of the failures of her employer. The causal link is self-evident when the wording of the Stage 2 Grievance Report is taken into account – the worker was “not afforded  with fair and due process from the outset”, the same time at which the worker went off on sick leave, providing medical certificates from her GP that cited “stress issues related to work” as the reason from 20 May 2021 onwards.  Therefore, I recommend that the sick leave record from May 2021 to January 2022 be amended and be treated as special leave. 

As regards the point that an adjudication officer cannot amend a nationally agreed sick leave scheme, I note that in the case cited by the respondent, ADJ-00025428, Staff Nurse v Human Health, the adjudication officer simply stated “I find I cannot support the Trade Union claim for compensation and or any amendment to the nationally agreed sick leave scheme” but did not provide any discussion as to why this might be.  In the instant case, the employer’s own grievance procedure report outlined a litany of failures and omissions on the part of the employer, including reference being made to six reports made about the worker, where the decision maker noted that there was an absence of evidence to support the existence of any of these reports, and recommended that the statements should be retracted.  The decision maker went on to apologise unreservedly, noting the impact that this has had personally on the worker.  As previously mentioned, the decision maker also found that the worker “was not afforded with fair and due process from the outset”.  In circumstances where there is no challenge as to the finding of fact in the grievance process and in the totality of the circumstance in which the worker found herself, there is no option but to try to right a wrong that has been done to this worker.  My recommendation is not that the scheme be amended, but rather that, in a specific set of circumstances, the period of leave be treated as being outside the boundaries of the scheme and be considered as special leave.

I also recommend that her sick pay entitlement be restored to the position that existed prior to her going on sick leave in May 2021.  In addition, I recommend that the worker be paid the sum of €12,000 in compensation recognising that she was not afforded “fair and due process from the outset”.

I note from the Stage 2 Grievance Report that the decision maker recommended that the worker be retrospectively appointed to the PHN salary scale to June 2021.  I note that there has been some delay in following this recommendation from the decision maker.  I recommend that this be implemented immediately, if not already done by the date of this recommendation.

I also recommend that the section of the Stage 2 Grievance Report entitled Learnings for the Employer be studied in more detail by the employer.