Worker

Employer

Anonymised Parties

CNS

Health services provider

Representatives

 Psychiatric Nurses Association (PNA)

 Employee Relations Section

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 - 00001865

11/10/2023

This dispute arises from issues between the employee and others regarding the allocation of clinical referrals to the employee in her capacity as a specialist appointed to a health area in March 2023. While the employee has worked in another  area of the service since her reassignment in July 2023, the detailed submission on her behalf described a history of issues regarding the allocation of work which she described as preventing her fulfilling her role i.e., her role as a clinical nurse specialist. That issue was pursued through the internal grievance procedure before referral to the WRC. The submission sought confirmation that the employee would remain in the reassigned role and the restoration of sick leave on the basis that the stage two hearer advised the employee to take sick leave which has reduced her remaining sick leave entitlement, when he could have placed the employee on other forms of leave.

In a comprehensive submission, the Union set out the employment history of the employee in psychiatric nursing from 2006 to date. In September 2021,the employee took up a post  as a Clinical nurse Specialist. The placement was interrupted after three weeks by Covid and thereafter the employee worked from home until the commencement of her maternity leave. Within a short period of returning to her role on 20th March 2023, the employee had concerns about a lack of respect and understanding of her role as a CNS. The central issue was that of referrals which can be summarised as referrals she did or did not receive and how any the allocation of any referral was to be decided. The matter of referrals was raised by the employee with a named clinician. His response suggested  that she was not a team player and was described as  derogatory and intimidating. The immediate issue for the employee was the correct referral pathway as well as elements of the first referral she did receive which included duties more appropriate to a HCA and not a CNS. Between March and June, the employee received a total of two referrals from the clinician. In the interim she raised her concerns, initially with a named ADON and later  commencing in May through the grievance procedures at stages 1,2 and 3. The position of the employee is that she was seeking the same clinical pathway as colleagues in other parts of the service, in the same geographical area. At the stage two meeting and in subsequent calls with the union representative, the stage two hearer suggested that the employee take sick leave. The situation dragged on for a further period, leaving the employee using  thirty-one days sick leave. The union submitted that this resulted in loss of future sick benefits over a four-year period, when the stage two hearer was in a position to place the employee on other forms of leave such as administrative leave. At the hearing, the union representative stated that he was aware of AO recommendations that sick leave be restored within this employment and he was aware of the  restoration of sick leave  within the same employment, being authorised by the relevant employee relations manager.

In response to the employer submission, the employee’s position is that mediation on this issue of the referrals pathway was not offered to her at any stage and therefore could not have been rejected by her as claimed.

Employers Case

The employer provided a written submission mainly setting out the steps of the procedure and the decisions at each stage.

The grievances were processed through the collectively agreed procedures and a number of recommendations  were made and implemented by HSE  management in the context of seeking to resolve matters. During the period encompassed by the grievance, the employee was not prevented from carrying out her role and duties as a CNS. Mediation remains a methodology available to the employees which is designed to encourage a positive approach to resolving work related issues. In response to a question from the Chair, the nurse manager on the employer side stated that referrals were decided by the clinical lead and that the employee had a caseload in addition to the two referrals allocated between March and June 2023 At the hearing, the employee relations manager emphasised that he would not interfere with a nationally and collectively agreed sick pay scheme. The employee had submitted sick certs which were accepted and processed accordingly.

By the commencement of the hearing, the remaining issue to be determined by way of a recommendation was the claim that thirty-one days sick leave taken by the employee should be restored by the employer. Discussions prior to the hearing resulted in an agreement that the relevant line manager would confirm in writing that the employee would continue in her current post(the one to which she was reassigned in July 2023). The basis of the claim regarding sick leave is that the union and the employee say that the stage two grievance hearer suggested this course of action to the employee.

While I remain unclear as to how the sick leave record of an employee in this employment can be adjusted to remove a period of absence or to restore leave taken as certified sick leave, the issue is whether the claim is justified. To decide whether the claim is justified requires that I look at the circumstances in their totality. The nub of the issue appears to be that the MDT team had/have a particular way of operating in respect of referrals, one with which the employee disagreed and continues to disagree. As this was a clinical issue about appropriate practice, I note that a clinical manager at stage 1 concluded that the SOP was being followed. I also note that the stage 3 hearer absolved himself of any responsibility in clinical matters-which begs the question why he heard a grievance where he felt he could not decide on a core issue and where he was unable to issue a recommendation. This appears to be very unsatisfactory from the perspective of all employees involved, not just the employee in this dispute. As I advised the parties and the union appeared to accept ,an AO could not decide clinical practice matters, one way or the other. I note that the employee received only two referrals in almost three months, which seems a very light allocation to a person in her post and with her qualifications. However, given the management response that the employee also inherited a caseload, it is impossible to assess whether the decision of the clinical lead not to allocate more than two new referrals to the employee was reasonable considering her overall workload or whether work was not allocated to her for some other reasons which she was not made aware of and/ or which may have been unfair to her given her specific role as a specialist. A case of on the one hand and on the other which the employer finally decided at stage three of their grievance procedure by not deciding it at all. That the issue arrived at the WRC and that so much of the union submission was concerned with the background clinical/role description issues is not surprising in the circumstances. I am not convinced that the stage three hearer’s conclusions, as per the submission to the WRC, that the employee was offered and refused mediation to resolve her issues around referrals is supported by the facts.

Regarding the circumstances in which the employee took sick leave; clearly tension and related stress were building up for the employee as issues remained unresolved from her perspective. She herself referenced the significant effect on her at the stage two hearing. The response of the manager is interesting: ’she requires occupational health and advised her she should seek support from EAO also. S advised (the employee) regarding going on leave as a protective measure and that a move out of S2 must be considered as this is an ongoing process and due (to) the level of stress it is causing her with regard to her health and wellbeing.’ He then went on to say that he would discuss the transfer option with the line manager and revert to the employee the following week. As it transpired that manager was on leave.

Reading this note in its totality I see nothing beyond a manager recognising and responding to a health issue raised by the employee. He did not compel her to take sick leave and she had a choice to make, under medical advice, as to whether to continue to attend or, as she was subsequently, to be certified for sick leave as unfit for work for which she was paid in full. Due mainly to the absence of the line manager on leave ,the situation dragged on a few weeks longer than expected by all concerned at the stage two hearing, but to hold the stage two hearer’s concern and his declared interest in addressing those concerns into a claim for restoration of certified sick leave is not justified in the circumstances. Paid sick leave is itself a protective measure which employees can avail of in relation to illness caused in and unconnected with the workplace. That an employee has an unresolved grievance which is causing them stress and which was being heard and processed through the procedures without undue delay, where concern was expressed by her for her own  wellbeing, do not provide individually or collectively a basis of placing an employee on administrative leave  or restoring sick leave when the underlying issue was one of ill health.

In summary, while the absence of any clear conclusion on the core clinical/role issues in the grievance procedure at stage three is unsatisfactory, I find nothing exceptional or flawed in the process to the point in time when the employee returned to work after a period of sick leave, which would justify the restoration of certified sick leave to the employee. The observations in relation to stage three of the process do not imply that as an AO I am making any judgement on the clinical pathways issues around referrals. These are clinical operational matters and not industrial relations issues as such.

Dispute re nursing role/guarantee re placement; restoration of sick leave entitlements