ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00024699
A Clerical Officer
Des J. Kavanagh HR Consultancy Ltd.
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 17/12/2019
Workplace Relations Commission Adjudication Officer: Catherine Byrne
This dispute was referred to the WRC on October 6th 2019 and, in accordance with Section 13 of the Industrial Relations Acts 1969, it was assigned to me by the Director General. I conducted a hearing on December 17th 2019 and gave the parties an opportunity to be heard and to set out their respective positions regarding the matter in dispute. The complainant was represented by Mr Des Kavanagh of Des J. Kavanagh HR Consultancy Limited. Two Human Resources (HR) Managers and the manager of the department in which the complainant works attended on behalf of the employer.
CO2: Clerical Officer in the Accident and Emergency Department
AO: Admissions Officer and the complainant’s line manager
AB: CO2’s Manager
CD: The Admissions Manager
DO: Director of Operations
Chronology of Events Resulting in this Dispute
The complainant is a grade 3 clerical officer and she has worked in the hospital since January 1996. She has been a clerical officer since 2003. In September 2018, she was appointed to a new role in the reception area. On January 23rd 2019, her line manager, “AO,” was on a day off and the complainant was covering the essential aspects of her job in the Admissions Office. At some point during her shift, a security officer employed by an outsourced provider complained to a clerical officer, “CO2,” in the Accident and Emergency Department, that the complainant was not doing her job at the reception desk. CO2 told her manager, “AB,” what the security officer had said and AB visited the complainant in reception and asked her if everything was okay. The complainant replied that everything was fine. She wasn’t aware at the time that CO2 had complained about her, but she decided to phone AB to see if there was a problem. AB replied that she was just passing reception at the time and she asked if everything was okay.
The following day, CO2 sent an email to several colleagues, including the complainant’s sister who is employed in the hospital, and her line manager, AO, in which she informed them about the security officer’s comments. In the email, which was submitted at the hearing, it appears that CO2 is agreeing with the security officer regarding the complainant not doing her duties at reception. AO replied to all the people who received CO2’s email and she gives the impression that she agrees with CO2 regarding the complainant not providing cover at the reception desk. The complainant’s sister replied to AO’s email and she advised her that she would give the complainant a copy of the complaint so that she could respond. CO2 replied, and, in her email, she is again critical of the complainant, noting that “this isn’ta one off.”
On January 27th, the complainant made a formal complaint to hers and AO’s manager in the admissions department, “CD,” under the HSE’s grievance procedure. When she got no response, she wrote to CD again on February 10th. On February 21st, she received a response from CO2’s manager, AB. AB answered the complainant’s questions in factual terms, but the complainant felt that the response did not deal with the issues she raised, which were related to the complaint made by CO2 and the fact that AO appeared to support CO2’s allegations without consulting the complainant at any stage.
The complainant became sick with the distress that this issue caused and she had to go out on sick leave. On February 24th, she wrote to the HR Manager asking her to intervene. The HR Manager spoke with the complainant by telephone on March 1st and she advised her that she would instruct her line managers, AO and CD to meet her to hear her grievance. The complainant agreed to this course of action, however, because of the distress she was experiencing, she said she would only agree if the meeting took place before Friday, March 8th. By March 7th, a meeting had not been arranged, and the complainant referred herself for an appointment with the hospital’s occupational health consultant, “OHC.” On Saturday, March 9th, she referred her complaint to the Director of Operations, “DO”, under stage 2 of the Grievance Procedure.
On March 11th, the complainant received a letter dated March 4th from AB. Strangely, the letter was to invite her to a meeting on March 8th, three days earlier. The complainant replied that she had escalated the matter under stage 2 of the Grievance Procedure. On March 15th, AB wrote to the complainant and offered dates to meet under stage 1 of the Procedure. The complainant replied to the effect that she had moved her complaint on to stage 2.
The complainant received a letter from the HR Manager on March 20th, advising her that, from April 17th, her sick pay would be reduced and she would be on half pay and that, from July 5th, she would receive no sick pay. She responded on March 29th and asked the HR Manager to meet her and to intervene in getting her grievance resolved.
On April 13th, arising from her medical consultation, the complainant received a copy of a report sent by the OHC to the admissions manager, CD. The consultant noted that the complainant was “unfit for all duties until the next review due to an ongoing grievance procedure work environment (sic), is considered at this time an aggravating factor for the medical condition outlined above.”
On May 3rd, the complainant attended a meeting under stage 1 of the grievance procedure. She met the admissions manager, CD, and CO2’s manager, AB. This was followed on May 10th by a letter setting out the findings of CD and AB, and their conclusions to the effect that:
§ CO2’s email of January 24th was inappropriate;
§ LM’s email of the same day was also inappropriate;
§ Options regarding a different post would be considered for the complainant on her return to work.
The complainant was not entirely happy with the statements in this letter, as it appeared to suggest that her grievance was about her relationships with her colleagues. On May 17th, she wrote to CD and explained that her grievance arose from false allegations made about her which were circulated in emails to several colleagues. She requested that all the recipients of the emails, and the security officer who made the original complaint, be informed that, on the day in question, January 23rd 2019, she was working between two jobs in the admissions office and on reception, and she was alternating between the two desks. The admissions office is behind the reception area in the hospital’s concourse.
In her letter of May 17th, the complainant also asked for:
§ A job description for one of the alternative roles that had been suggested for her;
§ What the arrangements were to put her back on full pay;
§ What the implications would be if she was absent due to illness in the next few years. The complainant had taken sick leave because of the incident on January 23rd, and this would disentitle her to sick leave in the future.
On May 30th, CD wrote to the complainant and informed her that the allegation that she was not carrying out her duties at the reception desk on January 23rd was not upheld. She was also provided with some information regarding the new post to which she was expected to return after her sick leave. On June 10th, she replied to CD asking her why there was no mention of dignity at work. She also advised CD that a Monday to Friday roster was not suitable for her and as a job-sharer, she wanted to work a split week, or every second week.
On June 14th, the HR Manager wrote to the complainant to inform her that, since she went sick from work on January 31st, she had been paid her full wages as sick pay and that she was expected to return to work shortly. This was followed up on June 26th by a further letter from the HR Manager in which she informed the complainant that, if she did not return to work, she would go on half pay from July 1st. She was informed also that the grievance process had concluded.
On July 1st, the complainant contacted the HR Manager and explained that the jobs offered as alternatives to the post she held up to January 2019, all involved changes to her terms and conditions of employment. She also said that she found the HR Manager’s letter of June 26th threatening and intimidatory. On the same date, the complainant received confirmation from the HR Manager that she would go on half pay from July 1st and from July 6th, payment of her wages would cease.
A meeting took place on July 15th, at which the complainant was accompanied by Mr Kavanagh, who represented her at the hearing of this complaint. At the meeting, the complainant accepted an offer of a suitable post on the roster which she had been working on until January. She returned to work on July 18th.
Summary of Complainant’s Case:
The Grievance Procedure
The hospital’s grievance procedure has the objective of dealing promptly and fairly with any complaints raised by an employee. The process stipulates that certain timelines are followed, including a commitment to meet a person who initiates a grievance within seven days.
The Complainant’s Sick Leave Record
At the hearing, Mr Kavanagh said that the complainant had never been absent from work due to illness, apart from an occasion when she tripped on a cracked tile in work. She would not have taken sick leave between February and July 2019 if her grievances had been properly dealt with.
The Complainant’s Position Regarding her Treatment by the Hospital
Mr Kavanagh submitted that the complainant is a committed employee who has provided long and faithful service to the hospital where she works. On January 23rd 2019, she went to work and was agreeable to do her own work and to cover for her manager, who was on a day’s leave. She then became the victim of an unfounded complaint that was followed up by “scurrilous email correspondence” containing inaccurate and defamatory statements and which caused her deep shock and distress. This was compounded by her grievance being poorly managed. Despite the timelines in the grievance procedure, some of the complainant’s correspondence was ignored, and at other times, the responses from managers were delayed.
Mr Kavanagh said that the complainant was the person who was offended and hurt because of what happened; she suffered ill health and had to take sick leave. While she was maintained on full pay until July 1st, her sick leave record has been detrimentally affected. From July 1st, she was paid half her wages and from July 6th until she returned to work on July 18th, she received no wages.
Wages and Payslips
The complainant returned to work on July 18th.
On July 15th, she got no wages and no payslip.
On August 8th, she got no wages and no payslip
On August 22nd, she got around 30% of her normal pay.
On September 5th, her pay returned to normal.
The complainant got no response to her queries regarding the problems with her wages and the fact that, over a period encompassing three pay dates and six weeks, she was paid €298. Following several letters back and forth between the complainant, Mr Kavanagh and the HR Department, the problem with the complainant’s pay was referred to the payroll department of the HSE and, on December 6th, three days before the hearing of this complaint, a detailed response was sent to the HR Manager.
From the letter from the payroll office, it appears that, during the period of the complainant’s sick leave, the payroll system was transferring to a new software programme. Also, the payroll appears not to have been capable of dealing with the fact that the complainant should have been on half pay from June, whereas as decision was made to maintain her on full pay. There was also an issue with the amount of illness benefit deducted from her wages and it seems that a deduction was made on June 13th of one sum of €406.
At the hearing, Mr Kavanagh pointed out that, if the complainant had been overpaid, then the HSE’s National Financial Regulations concerning overpayments were not followed in respect of how the overpayment was to be managed. Mr Kavanagh argued that it is extraordinary that an employee would be left with no pay for two pay periods and a reduction of 30% in a third pay period without any notice and no opportunity to discuss the matter with anyone regarding repayment options. Apart from this failure, the complainant received no payslips for the two periods in which she received no pay.
The complainant is seeking a recommendation that the sick leave that she had to take arising from the incident that occurred on January 23rd 2019 be expunged from her record. She also seeks the reimbursement of her wages for the period during which she received no wages from July 1st 2019. Finally, she seeks compensation for the emotional and financial distress she has experienced.
Summary of Respondent’s Case:
Handling of the Complainant’s Grievance
The management involved in this grievance reject the complainant’s assertion that the delay finalising the investigation is wholly attributable to management. They claim that on some occasions, the complainant did not engage or respond to their communications. They accept that there was a delay of eight days in February 2019, when the complainant should have received a response to her letter to CD of January 27th.
It is the hospital’s case that occupational health support was offered to the complainant in the first instance on February 26th 2019, and then on April 18th, June 26th and July 10th. The hospital’s managers made efforts to contact the complainant on four separate occasions over the 24 weeks of her absence, and she did not respond. She provided medical certificates and wrote to management about her grievance, but did not engage otherwise e with the managers involved in trying to resolve her grievance.
For most of the time she was out of work, the management arranged for the complainant not to be placed on half pay, as provided for in the sick pay policy. She was due to go on half pay from April 17th until July 4th 2019, after which, she was not entitled to any wages. The payroll department reinstated the standard sick pay regulations from Monday, July 1st 2019, and the complainant was advised of this change in her sick pay status.
The senior HR Executive who attended the hearing on behalf of the hospital pointed out that the public service sick leave scheme is legislated through the Public Service Management (Sick Leave) Regulations 2014 (Statutory Instrument 124 of 2014). This transposed the Department of Health’s Circular 5/2014 and the HSE HR Circular 005/2014 into law. This statutory instrument can only be amended by ministerial order and, apart from a single amendment related to pregnancy, no changes have been made to the Regulations.
Within the health service, an employee’s sick leave is a matter of public record and may not be amended or altered. In this regard, the hospital’s representative referred to the conclusion of the adjudication officer in a case considered in February 2019, ADJ-00014875.
In relation to the discrepancies in the complainant’s wages after she returned to work, the HR executive said that the period of the complainant’s absence coincided with the migration of the payroll to a new software system.
The complainant was due to go on half pay from April 17th 2019; however, the payroll department was instructed not to move her to half pay. This was to give some time to resolve the complainant’s grievance, without her having to suffer a loss of earnings. If the circumstances had been normal, she would have been on half pay until July 4th, and then on no pay.
The HR Manager was not informed of the intention of the payroll section to reconcile the complainant’s sick leave and she ended up with no pay because of her accrual of sick leave up to July 17th 2019.
Another complicating issue is the fact that, in the month of June 2019, the complainant was overpaid, because the payroll department did not deduct the correct amount in illness benefit. The hospital accepted that the complainant should have been informed of this problem.
At the end of the hearing, the HR Executive accepted that there were communication issues that exacerbated the complainant’s problems after she returned to work, but she argued that she was given an extension of full sick pay for the majority of the time she was absent. The hospital’s position is that they have no authority to make changes to the sick pay regulations and they reject the case for compensation put forward by Mr Kavanagh.
Findings and Conclusions:
Handling of the Complainant’s Grievance
At the hearing of this complaint, I listened to the complainant describing the effect on her of the incident that occurred on January 23rd 2019. It strikes me that for a person with so many years of service and, with no history of engaging in grievances or employee-relations issues over those years, the email circulated on January 24th must have had a very detrimental and distressing effect. On January 23rd, the complainant was at work, doing her own job and attempting to cover for her manager as well. While it is apparent that the reception / admissions area of the hospital must be a busy place, and she may have been alternating between the front desk and the office, she should not have been criticised in the manner shown in the emails submitted at the hearing.
More importantly, it is my view that, having seen the correspondence from CO2, the complainant’s managers should have immediately informed the complainant and got her version of events and found out from her if there were problems at reception, as described by the security officer and CO2. Instead, her manager responded to CO2, even though she was not at work on the day the complaint was made.
It appears from the information supplied at the hearing, that AB, who is CO2’s manager, was on site on the morning of January 23rd, and that she went to the reception desk to check on things. It seems that she spoke with the complainant who informed her that everything was fine. When the emails began circulating the next day, AB could have intervened to confirm that things were fine, or, if she thought otherwise, she could have arranged to have a discussion with the complainant and her manager.
In the end, the outcome of the investigation into the complainant’s grievance was that the allegation that she was not properly attending to her duty on reception on January 23rd 2019, was not upheld. It is regrettable that this was not communicated to the complainant until May 30th. If either the complainant’s manager, CD, or CO2’s manager, AO, had taken the initiative to sit down with the complainant the day after the email was circulated, the effect may have been lessened and the complainant may not have been out of work for 24 weeks.
It is my view that the fact that the complainant’s wages were not reduced to half pay until July 1st, is a reasonable response on the part of the management to the fact that she was out sick because of a workplace grievance. I acknowledge the series of issues that resulted in her receiving no pay on July 15th and August 8th and 30% of her normal pay on August 22nd. I understand that the reason for this was because of overpayments in June and the fact that the payroll system was migrating to a new software programme and that the complainant’s particular circumstances were not be taken into account.
I have carefully considered the complainant’s grievance and I understand how upset she was because of the comments in the email of January 24th 2019. No form of monetary compensation will undo the hurt that was caused. Apart from this, it is my view that any recommendation of a financial award from me will only prolong this grievance further because, as a public body, it will be difficult for the hospital to obtain the authority to pay. I would hope that, having had her grievance aired at the WRC, she can move on in the knowledge that, on January 23rd 2019, she was doing her job, and that of her absent manager, to the best of her ability and that no comment or criticism was warranted.
In relation to the payroll issues, while I accept that communication on the issues was poor, from a technical perspective, no deduction was made from the complainant’s wages, that was not in compliance with regulations. I note that the HR Executive said that a self-service tool is being introduced so that employees can have an input into the information provided to the payroll section in future.
I note the findings of my colleague adjudicator in the decision, ADJ-00014875 and I find that I have no authority to recommend any departure from the regulations regarding sick pay that apply in the HSE.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I note that the complainant is now working in a different area of the hospital and that her transfer to this role was one of the outcomes from the grievance process. I recommend therefore, that no further action is taken by either party and that this grievance should be considered as resolved.
Workplace Relations Commission Adjudication Officer: Catherine Byrne