Worker

Employer

Anonymised Parties

A Nurse

A Health Service

Representatives

Irish Nurses & Midwives Organisation

 Internal/Self-represented

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 - 00002065

20/12/2023

This dispute pertains to the period 18th December 2020 to 12th April 2021, and the Worker’s classification as being on sick leave.

The Worker submits that she was declared fit to return to work via a telephone conversation, which was the practice during Covid-19, by the Occupational Health Physician.

She submits that she was declared fit to engage in relation to work-related matters and to return to work. However, the Worker was not returned to payroll until 12th April 2021.

The Worker is seeking not to be classified as being on sick leave, as she was not on certified sick leave, in relation to the period from 18th December 2020 to 12th April 2021. She is seeking that her sick leave record reflect that she was not on sick leave during this period and that any difference between the sick leave taken and the Worker’s normal pay be reimbursed to her.

She submits that there was a delayed investigation under Dignity at Work. At the time of the filing of her WRC complaint, she submits that the investigation had still not commenced. The Worker submits that she lodged a grievance regarding the delay, that her union has sought to extensively engage with the Employer but to no avail. The Worker submits that she has been discommoded since submitting her complaint, and that she has suffered both personally and financially while this process remains stagnated.

The Worker is seeking back pay for the relevant period (18th December 2020 to 12th April 2021), financial compensation, and a consequent alteration to her sick pay record.

The Employer disputes the Worker’s version of events. It does not concur with the submission that the Worker was declared fit to return to work in December 2020, but rather ‘fit to engage’, following a self-referral to Occupational Health by the Worker. It submits that the Worker’s WRC case is an attempt to have a ‘third bite of the cherry.’ It submits that there was a Dignity at Work issue at the first location where the Worker worked, that she was then reassigned to a second location at her request while that matter was being addressed under the applicable policy. Then, a Dignity at Work issue arose at the second location which is the subject matter of a second complaint. An agreement was entered into in relation to the application of pay, premia and sick leave covering the period up until 10th December 2020. This dispute relates to the period immediately following that, and there is dispute between the parties as to what happened next.

The Employer submits that it engaged actively with the Worker, that it engaged (in relation to the prior agreement) on a without prejudice and without precedent basis, that the Worker has had access to her full employment rights and in addition to that has benefited from the additional agreement the parties entered into which had the effect of benefitting the Worker twice (once retrospectively and once subsequently) in relation to the application of sick leave and protective leave, and that she is now seeking to benefit a third time above and beyond the terms of national pay agreements with respect to sick pay. It disputes that she was certified fit to work by Occupational Health in December 2020 or that it failed to engage, as alleged. It submits that the Worker’s case is without merit.

Summary of the Worker’s case

The claim brought before the WRC relates to the employer's tardy adherence to the Dignity at Work policy, following a complaint made by the Worker to the Employer.

The Worker's complaint was not dealt with in a timely manner nor has the complaint been investigated yet to date which relates to very serious allegations of breaches of the Worker’s dignity at work.

The Worker is seeking that the Employer agree nominations in the shortest possible timeframe to commence a full investigation under the Dignity at Work policy without any further delay.

The Worker is seeking the reinstatement of her sick leave record from the date of the original complaint (December 2018) to the date she commenced protected measures, working in [Name Redacted] Hospital on 15/7/19.

The Worker is seeking that she be fully remunerated for the period in which she was not on full pay/off payroll due to the fact she had exhausted her sick leave entitlement owing to the fact that there was a significant delay by the Employer to follow the applicable procedure and put in alternative measures to protect the Worker.

The Worker is seeking redress by way of financial compensation to the sum of €15,000 for the considerable impact these chain of events have had on her which, it is submitted, has caused a significant detriment to her health and professional career.

Background

The Worker is a qualified nurse for 21 years. The Worker completed numerous postgraduate qualifications including gynaecology and ‘Care of the Older Person’ nursing. She has extensive experience both in the UK and in Ireland where she has worked both in the private and public sector in older person services.

The Worker has worked over 15 years to date in older person services both at staff nurse grade and at Clinical Nurse manager 2 (CNM 2) grade. She commenced a temporary higher appointment at the grade of CNM 2 on 1/1/15 in [Name Redacted] Hospital. It is submitted that she performed this role diligently throughout the period. The Worker sought to secure permanency at this grade and applied for permanent CNM 2.

However, the Employer failed to deal with the complaint expeditiously and with minimum distress for the Worker. Instead, she suffered significantly with her health due to stress from the alleged behaviour and to date, has not been afforded the opportunity to address this serious complaint.

It is the Employer's responsibility to ensure adequate resources are put in place to deal with complaints. In the Worker’s case, it took the Employer 3 months to put forward nominations which were accepted by her. It then took the Employer a further 3 months to advise the Worker these nominations had been rejected by the [identified] respondent. The delay is completely unsatisfactory and to the Worker’s detriment.

It is contended that the Worker had the expectation as set out within the

Dignity at Work Policy, that the Employer would deal with her complaint promptly. However, she feels badly let down by the Employer's actions/inaction to date and has suffered enormously as a result professionally.

It is submitted that the Worker's confidence in the Employer has been completely eroded, along with her own professional confidence given the Worker has still not been afforded the opportunity to address all of the incidents of alleged inappropriate behaviour and undermining of her dignity within the workplace.

The Worker has had significant stress and anxiety issues for which she is receiving ongoing medical and psychological care due to the alleged chain of events and delayed process to bring closure to the matter.

Conclusion

The Worker is seeking that the investigation process is now expedited within the shortest possible timeframe.

It is submitted that the Worker suffered financially through elongated sick leave due to the delayed processing of the complaint and finding suitable accommodation.

It is submitted that the Worker has suffered personally and professionally, with her health directly affected by the delayed process to investigate the serious allegations put forward by the Worker against her line manager.

At hearing, it was submitted that the Worker was referred back to Occupational Health again four months later. The Worker’s representative submits that the Director of Nursing failed to address the issue, that the Employer is disrespectful, tardy at best; and that the local service management had a clear failure to respond. He submitted that the Worker had suffered financial loss as a result, in the region of €12,500 due to the Employer’s classification of the illness. He submitted that neither her GP nor Occupational Health declared the Worker to be sick. The Worker’s representative is seeking pay, that the Worker be restored to full pay (not placed on sick leave) for the identified period. He submitted that he was not disputing whether the Worker had sick leave or not – that had been modified through a different WRC process. He said that there was a simple matter in dispute, the Worker was not sick, and that nobody – except the Employer - was saying that she was sick (not Occupational Health and not her own GP). He submitted that you cannot be on sick leave unless it is certified that you are sick. He said that the Worker was left for over 16 weeks with no pay because of that classification.

The Employer submits that the Worker and her representative had previously made a submission to the WRC Adjudication Services (reference ADJ-00025682; CA-00032656), under Section 13 of the Industrial Relations Act, 1969. This matter was scheduled for hearing by a WRC Adjudicator on 10th December 2020. (Appendix 2) That matter was resolved by way of an agreement between the Employer and the Worker’s trade union representative, and details relating to the agreement are detailed below within the Employer’s submission. Having regard for the terms of the agreement reached in December 2020, the Employer is strongly refuting the claim which is now being presented by the INMO on behalf of the Worker.

Employer’s Position

The Worker’s history:-

The Worker commenced employment with the Employer on 4th August 2014 as a temporary Staff Nurse in [Name Redacted] Hospital. The Worker was subsequently appointed as a permanent Staff Nurse, with an initial assignment in the same [Name Redacted] Hospital on 11th January 2016.

The Worker was temporarily assigned to the position of Acting Clinical Nurse Manager II, in the same [Name Redacted] Hospital on 5th January 2015, to cover a vacant position.

On 6th December 2018, the Worker raised a complaint against a Nurse Manager and the matter was being dealt with under the Dignity at Work Policy.

Pending the outcome of the Dignity at Work matter, the Worker, at her request, was temporarily assigned to an alternative work placement in a different [Name Redacted] Hospital with effect from 24th July 2019 at the grade of Staff Nurse whilst maintaining the rate of remuneration of the higher grade of Acting/Temporary Clinical Nurse Manager 2. The Employer submits that the matter could not be fully investigated as the relevant respondent in that matter resigned from the Employer. This was clarified by the Employer in correspondence, dated 16th September 2021.

On 5th February 2020, a separate workplace issue was raised by the Employer with the Worker which required to be dealt with through the nationally agreed HR procedures. That matter is ongoing at this time.

Initially, the Worker commenced a period of sick leave from 13th February 2020 and was ultimately placed on administrative leave as a protective measure with effect from 12th April 2021 and remains on administrative leave i.e. at full pay at the Grade of Staff Nurse.

'December 2020' Agreementbetween the Employer and the Worker’s trade union

On 3rd December 2019, the INMO on behalf of the Worker submitted a claim to the Adjudication Services of the WRC (Reference Adj-000-25682; CA-00032656) wherein the details of the claim as comprehended within the INMO's submission to the WRC Adjudication Services incorporated enhanced sick leave payments.

The Employer refers to the INMO's submission to the WRC in that matter and has included the following extract by way of context:-

-       The claim brought before the WRC today relates to the Employer’s tardy adherence to the Dignity at Work Policy, following a complaint made by the Worker to the Employer;

-       The Worker's complaint was not dealt with in a timely manner nor has the complaint been investigated yet to date, which relates to very serious allegations of breaches of the Worker’s Dignity at Work

-       The INMO are seeking that the Employer agree nominations in the shortest possible timeframe to commence a full investigation under the Dignity at Work policy without any further delay;

-       On behalf of the Worker, the INMO are seeking reinstatement of the Worker’s sick leave record from the date of the original complaint (December 2018) to the date the Worker commenced protective measures, working in [Name Redacted] Hospital on 15/7/19;

-       The INMO is seeking that the Worker is fully remunerated for the period in which she was not on full pay/off payroll due to the fact she had exhausted her sick leave entitlement owing to the fact that there was a significant delay by the Employer to follow procedure and put in alternative measures to protect the Worker;

-       The INMO are seeking redress for the Worker by way of financial compensation to the sum of €15,000 for the considerable impact these chain of events have had on her which has caused a significant detriment to her health and professional career;

-       On behalf of the Worker, the INMO are seeking that the investigation process is now expedited within the shortest possible timeframe;

-       The Worker suffered financially through elongated sick leave due to delayed processing of the complaint and finding suitable accommodation;

-       The Worker has suffered personally and professionally, with her health directly affected by the delayed process to investigate [the serious allegations she put forward] against her line manager. (Appendix 3)

The parties attended the WRC Adjudication Hearing on 10th December 2020 during which it was confirmed to the WRC Adjudicator that the parties had engaged on a without prejudice and without precedent basis for the purposes of identifying a proposal in full and final settlement of the matter.

The following is an extract from the terms of the proposal as tabled by the Employer to the INMO at that time:-

-       On a without prejudice basis, the Employer has acknowledged the frustration expressed by [the Worker] with the length of time associated with progressing the formal investigation process and the Employer apologises to [the Worker] for same. Your union will be aware of a number of factors which have delayed the process to date to include delays experienced in securing agreement of the membership of the investigation team and the obvious delays resulting from the suspension of all investigations/IR processes within the [Respondent Employer] for a number of months in 2020 owing to the need to prioritise resources to ensure a safe service delivery during the ongoing pandemic.

-       The Employer is agreeable to revising the Sick Leave payment arrangements that applied to [the Worker] for the period of sick leave where half-pay and off pay applied in 2019. In this regard, the Employer is agreeable to the continuation of full pay less social welfare benefit for the period from 13th February 2019 to 23rd July 2019.

-       Furthermore, the Employer is agreeable to this period of Sick Leave, which commenced in November 2018 to 23rd July 2019, being excluded from the look-back period in calculating payment under the Sick Leave Scheme in respect of the next period of sick leave, which commenced on 13th February 2020 from the post in [(new) Name Redacted] Hospital.

-       The above is subject to confirmation of formal acceptance by the union on behalf of [the Worker] in full and final settlement of this matter and subject to confirmation that the matter is withdrawn from the WRC Adjudication Services.

-       Upon receipt of acceptance of the above, this office will engage with Central payroll in this region for the purposes of progressing the implementation of the above within the shortest timeframe possible. (Appendix 4)

On 11th December 2020, the INMO on behalf of the Worker wrote to the Employer in response to the offer tabled confirming... "l can confirm that the proposal put forward is acceptable to our member and this Union. ... I wish to advise that the INMO will be in contact with the WRC today advising that an agreement has been reached and our instruction to withdraw the case.' (Appendix 5)

In keeping with the terms of the agreement, correspondence dated the 8th of February 2021 issued

to the Worker confirming that her sick leave record for the relevant period in 2018/2019 had

been amended to reflect the agreement reached with the INMO on 11th December 2020. (Appendix

6)

The terms of the 'December 2020' agreement between the Employer and the Worker’s trade union representative had an extended benefit to the Worker in respect of a subsequent period of sick leave which commenced in February 2020 to 12th April 2021 whereby the previous period of sick leave from 2018/2019 was 'excluded' to the benefit of the Worker when calculating sick leave payment on that occasion.

The Employer submits that the terms of the 'December 2020' agreement effectively resulted in the

Worker receiving a period of extended payments relative to the nationally approved and agreed Sick

Leave Scheme: The terms provided for an extended period of full pay for the period 13th February

2020 - 14th May 2020. The Worker then progressed to half pay for the period 15th May 2020 to 28th

July 2020 and progressed to 'off pay' from 29th July 2020 until 12th April 2021 at which time the

Worker was placed on administrative leave.

In April 2021, the Union sought for a further enhancement to the sick leave payments already made

to the Worker on the basis that the Union were of the view that the Worker ought to have been

returned to rostered duty with effect from 18th December 2020 following what the Union refer to as

a recommendation from the Occupational Health Department.

It is submitted that the union will be aware from numerous engagements with various management

representatives from the Employer, to include regular engagements between Senior HR/ER

personnel and the INMO via an established monthly forum, that management was not in agreement

with the union’s understanding of this matter and that the matter of enhanced sick leave payments

had been dealt with fully in accordance with the terms of the 'December 2020' agreement.

On 22nd February 2023, correspondence issued to the INMO wherein the Employer confirmed

that the Occupational Health Department, having reviewed its records relating to the Worker’s attendance for medical assessment on 18th December 2020, had confirmed that the Worker was not in fact confirmed as 'fit to return to work'. (Appendix 7)

On 27th March 2023, the INMO reverted to the Employer seeking an appeal with respect to the union’s request for enhanced sick leave payments for the period 18th December 2020 to 11th April 2021 inclusive. [Note — the Worker returned to full pay with effect from 12th April 2021 on administrative leave as a protective measure and remains on this leave to date.] (Appendix 8)

On 6th April 2023, the Employer responded to the INMO restating its position on this matter

and also referred to previous engagement which took place in December 2020 which resulted in an agreement. (Appendix 9)

On 23rd June 2023 and again on 25th January 2024, the Employer responded to correspondence from the INMO dated 15th June 2023 restating its position on this matter. (Appendix 10)

Conclusion

The Worker has had the benefit of the terms of the 'December 2020' agreement applied to her in full which provided for enhancements to the nationally agreed Sick Leave Scheme which is operational on a statutory basis (S.l. No. 124 of 2014).

The Employer submits that the current claim as submitted by the INMO seeks to undermine/set aside the terms of an agreement reached in good faith between the Employer and the INMO in December 2020 which provided for enhanced terms relative to sick leave scheme in respect of two periods of sick leave i.e. 2018/2019 and again in 2020.

It is submitted that the claim as is now being presented by the INMO on behalf of the Worker is effectively seeking to inappropriately draw from the 'good faith' approach adopted by the Employer in terms of the previous concessions made in December 2020.

The Worker has, at a minimum, been afforded her terms and conditions of employment throughout this period of time and has been provided with access to the additional supports of the Occupational Health Department and the Employee Assistance Programme at all times.

The Employer submits that the complaint is without merit.

At hearing, it was set out that correspondence issued to the Worker (8/2/21) retrospectively, in respect of agreement reached in December 2020. The list of correspondences between the parties in 2021 was set out at Appendix 7 of the Worker’s submission. The Employer emphasised its good faith engagements with the Worker and its monthly engagements with the union on a range of issues, the previous deal struck, the impact of Covid-19 (lockdown) in a health-care setting and the prior Cyberattack on its system.

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

I conclude that there appears to have been a gap in communication between the parties, pertaining to the relevant period.

In response to queries from the Adjudication Officer, it emerged that the Worker had not submitted medical certs pertaining to the relevant period, and the Employer had not sought them or followed up. The Worker had submitted medical certs. pertaining to the timeframe immediately preceding this – the Employer said it had a medical cert. from the Worker covering the start of the relevant period until 2/1/21 from her own GP. It submitted that there had been extensive engagement with the Worker through her union, in relation to a number of matters, and that it was well aware of her situation. In response to queries from the Adjudication Officer, the Employer explained that there was no centralised system in place at the time in relation to the receiving of medical certs and no centralised mechanism for triggering the requirement to submit a medical cert. by an employee who had not shown up for work and/or for contacting him/her. It is something that was dealt with at local level, at the time. The Employer further highlighted the impact of the prior cyberattack on its system, as well as the impact of the Covid-19 pandemic.

The referral to the Occupational Health Doctor, based on his notes, refers to ‘fitness to engage’. However, the representative for the Worker has submitted that there is no such status within the Employer’s own policies, that an Occupational Health Doctor can certify someone as ‘fit for work’ or ‘not fit for work’. I conclude, however, that it is not unusual for Occupational Health to meet with an employee by consent who is on sick leave or protective leave, and to certify an employee as fit to engage with their Employer. I note that the Employer’s applicable policy (cited) sets out the form that different types of recommendations by the Occupational Health are likely to take. Both sides have emphasised their willingness to engage and that there have been multiple engagements in relation to a variety of issues which arose. The initial referral to Occupational Health, was a self-referral by the Worker.

The Worker had been on a period of certified sick leave after which she would either need to return to work or continue to submit medical certificates – neither occurred. The Employer classified the period of 18/12/20 – 12/04/21 as certified sick leave, even though no medical certificates were sought or produced during the period 3/1/21 – 12/4/21. It is submitted on behalf of the Worker that she sought to engage, but that the Employer did not engage until April and that it is wholly inappropriate that she be placed on sick leave in those circumstances, whereby the only party alleging the Worker is sick is the Employer. It is submitted on behalf of the Employer that there were monthly engagements during those months, with the union; that there was no recommendation by Occupational Health that the Worker was fit to resume work; that the context was unusual and that the Worker was anxious to engage and there was a recommendation from Occupational Health that she was fit to engage, and in that context the Employer then engaged on the substantive issue, and that that was very much the ‘proper procedure.’

The representative for the Worker emphasised the aspect of the Employer’s Dignity at Work/grievance policy which emphasises the benefit of early intervention possibly preventing attendance issues, and said that this had not occurred in this case.

The issue of TRR was also raised – the Employer submitted that it had drawn the process for application for TRR to the Worker’s attention but that she did not appear to have applied for it. The representative for the Worker submitted that TRR is available for those who are sick, that the Worker was not sick and that is why she did not apply.

I find that there was a gap in communication between the Employer and the Worker. I also find that there were delays during the relevant identified period, in particular at local level. The Employer ran into difficulties applying its own policies. The obligation is on the Employer to resource the timely application of its own policies (Dignity at Work; Grievance; etc.) in order to give reality to them for a Worker, as part of their terms and conditions of employment. In light of the gap in communication, and the delays, I recommend that the Employer pay the Worker €3,500 compensation in full and final settlement of this dispute.

I do not recommend any adjustment to the Worker’s sick pay record pertaining to the period 18th December 2020 to 12th April 2021. I note the Occupational Health Doctor’s communication, in this regard.

Industrial Relations; Sick leave; Dignity at Work; Delay; Compensation Sought;