Case Number: ADJ - 00032481. Workplace Relations Commission

CourtWorkplace Relations Commission
Date17 October 2022
Docket NumberADJ - 00032481
Procedure:

In accordance with Section 13 of the Industrial Relations Act 1969 (as amended) following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute.

Background:

This complaint was received by the Workplace Relations commission on 12th March 2021.

The Complainant is referred to a ‘a worker’ and the Respondent is referred to as ‘the employer’ (where possible).

Summary of Workers Case:

Introduction

This complaint pertains to a claim by Ms DO’N (referred to as a worker) to be classified as a HSE employee and be encompassed by the terms and conditions of a HSE Employee since commencing work in the HSE community services.

Background

The worker trained as a psychiatric nurse in St Vincent’s Hospital Fairview 1991/1994, she interviewed for a position as a psychiatric nurse in Dublin North Central in 1995, the interview panel consisted of Nursing Officers, representing Eastern Health Board (EHB), St. Vincent’s Hospital Fairview and the Mater Hospital and the interview took place in Park House the Head Quarters of the HSE.

The worker was successful at interview, was offered a psychiatric staff nurse position and was asked to select a location to work in out of one of the following: St. Vincent’s Hospital Fairview, the Mater Hospital or the Eastern Health Board.

The worker selected St Vincent’s Hospital as it was nearer to where she lived at that time. No explanation was given to her with regard to the consequences in relation to which location she selected and the impact on her terms and conditions of employment.

The worker would not have knowingly chosen a location which entitled her to lesser terms and conditions of employment had the implication of this choice been explained to her.

The worker commenced working as a psychiatric staff nurse in St. Vincent’s Hospital Fairview in 1995. She was not issued with a contract for this position.

In March 1996 she interviewed for a position of acting community psychiatric nurse. The worker commenced work in the Community Mental Health Services in May 1996 and was made permanent as a Community Mental Health Nurse (CMHN) for Dublin North Central in 2000. She was not issued with a contract for this promotional position. In her role as a Community Mental Health she provides a key worker service to HSE patients, through clinics and home visits. She is involved in presentations to community groups on mental health on behalf of the HSE. She implements and has contributed to HSE policies, she provides clinical supervision to staff including the HSE Adult and Child and Adolescent Mental Health community services and is informed by HSE policy and Guidelines.

The worker continues in this role to date she is based in Millmount Centre, Drumcondra Dublin and is governed by the HSE. St Vincent’s Hospital (section 38) only provides inpatient and residential care and does not provide a community mental health service.

The following applies to the worker’s employment as a community mental health nurse:

· Is governed by HSE policies

· Her base, Millmount is a HSE premises.

· The worker reports to a HSE manager

· Records her nursing entries in HSE clinical files

· Her ID badge, key and access fobs are all HSE

· She accesses IT with HSE Laptops, Computers

· She is supplied with a HSE phone

· The care she provides is solely to HSE Patients.

· Other than getting paid by St. Vincent’s Hospital she has no relationship with St Vincent’s.

· CMHN’s have been refused access to the unit in St. Vincent’s Hospital for the past few years.

· CMHN’s and community staff of all disciplines are not permitted to hold their ward multidisciplinary meetings in the hospital.

· CMHN’s are no longer permitted to hold their meetings in St. Vincent’s Hospital.

· The worker subscribes to the Voluntary Hospitals Superannuation Scheme, which requires her to work a minimum of 40 years and minimum retirement age is 60 years. The local Government Superannuation scheme applies to Health Board employees.

· Psychiatric Nurses working in the psychiatric services have more favourable superannuation benefits, i.e., they can retire at 55 years of age after 30 years’ service whereby every year after 20 counts as double.

These entitlements arise from the provisions of the Mental Treatment Act 1945 and apply to psychiatric nurses employed by the Health Board prior to April 1st, 2004. It is the worker’s contention that she should be encompassed by the Local Government Superannuation Scheme.

Process to Date regarding the worker’s claim

· This matter has been ongoing since the late 1990’s without resolution.

· In August 2017 contact was made with the Psychiatric Nurses Association (PNA) in relation to this matter following which a letter was sent by PNA General Secretary to the Pensions Manager, HSE on 10/01/2017. As there was no reply a reminder was sent on 19/10/17.

· On the 23/10/17 correspondence was received from the Pensions Manager stating that the matter is not “a superannuation function, it is a HR/Contract issue and any matter arising should be addressed via normal HR channels.

· A meeting was convened with the Human Resource Manager for CHO9, in March 2018.

· A reconvened meeting took place with Human Resources HSE in June 2018.

· The matter was referred to the WRC for conciliation on 22/10/2018. HSE responded on the 16/01/19, declining the invitation.

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