A psychiatric nurse who retired with a pension and lump sum before going back to work in order to fill in for staff shortages has been awarded a second lump sum payment after the HSE dispensed with his services.
In a decision that could have far-reaching implications for pensioners returning to work, the Employment Appeals Tribunal ruled that nurse Liam Mooney was, in fact, an employee of the HSE when he returned to work at St Loman's Hospital Services in Palmerstown, Dublin.
Mr Mooney (62), of Woodfarm Acres, Palmerstown, had retired from his work as a psychiatric nurse in February, 2008, when he was 55.
On his retirement he received an annual pension of €32,000 and a lump sum of more than €89,000.
In August 2008 he applied for and succeeded in being placed first on the panel for the Nursing “Bank”, an initiative put in place by the HSE to cope with chronic nursing shortages.
Flexible hours
Retired nurses and permanent employees who wanted more flexible working hours applied to join the Nursing Bank.
Mr Mooney had been working for more than four years under this arrangement when he was served notice by the HSE in October 2012 that, as the Nursing Bank came under the terms of the rehiring of retired HSE employees, it was intended to cease his contract in January 2013.
He replied by letter, advising the HSE that he was in his fifth year as an employee of the HSE Nursing Bank and inquiring about the redundancy terms being offered.
He subsequently brought a case to the Employment Appeals Tribunal for a redundancy payment.
The HSE argued he was not an employee during his time on the Bank and therefore was not entitled to a redundancy payment. Mr Mooney claimed he was an employee and was entitled to a redundancy payment.
The HSE director of nursing told the tribunal hearing late last year that, when work was available, Mr Mooney would be contacted and offered hours of work. He could accept or reject them - it was his decision.
He was paid for annual leave and for public holidays and had to follow company policy. But nurses who left the Bank did not have to give notice of their departure.
Mr Mooney said he had tax, PRSI and pension levy payments taken from his wages and explained he took note of the hours he worked to ensure he did not exceed the €33,000 yearly threshold - otherwise he would lose his pension.
The tribunal, in its report just published, pointed out that Mr Mooney would only be entitled to a redundancy payment if he was, in fact, an employee. It had to decide whether he was an employee or an independent contractor.
Detailed report
The detailed report quoted extensively from employment case law before pointing out that no credible evidence had been presented that Mr Mooney was in business on his own account.
The fact he was paid annual leave was “strongly indicative” of employee status.
It found a redundancy situation had occurred and ruled that Mr Mooney was entitled to a lump sum payment under the Redundancy Payments Acts.