FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : FÁS - AND - PHYLLIS GAFFNEY JANSSEN DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Keogh Worker Member: Ms Ni Mhurchu |
1. Alleged unfair treatment
BACKGROUND:
2. The dispute concerns a worker who was employed as a Placement Services Officer(Grade 10) in the North East Region of FAS. She had approximately 23 years service. She retired from the Company in August 1997 on the grounds of ill health and accepted the Company's early retirement package. The worker claims that while in the employment she suffered unjust and unfair treatment and was eventually forced into retirement because of the Company's attitude to her. FAS rejected the claim. On the 5th August, 2000 the worker referred a complaint to the Labour Court under Section 20(1) of the Industrial Relations Act, 1969 and agreed to be bound by the Court's recommendation. A Court hearing was held in Cavan on the 8th November, 2000.
WORKER'S ARGUMENTS:
3. 1 The worker concerned was suspended on two occasions without pay but was never given valid reasons or proper explanations for these suspensions. The worker considered that she was competent at her job but was constantly undermined by others and her complaintts to Management went unheeded. The suspensions impacted very severely on her health. They gave rise to a stress related illness which took a long time to diagnose. The Company persisted in stating that the worker was ill. She rejected this contention, however, she eventually became ill through stress.
2 The worker submitted a written request for annual leave in 1996. It was not approved and the worker suffered a loss of approximately three weeks.
3 The worker had been making contributions into a health protection scheme, for income continuance purposes for many years, however, unknown to her it lapsed during the suspension period. The Company which is the grantee of the scheme never informed the worker and she subsequently derived no benefit from the scheme.
4 The worker had travel and subsistence payment claims rejected and did not understand why the Company did so. When the worker availed of the early retirement scheme she was under the impression that Management would deal with the issues raised. This did not happen. No attempt was made to address her legitimate grievances.
COMPANY'S ARGUMENTS:
4. 1. Over a period of time the Company's line management experienced difficulty with the worker in relation to work performance, not carrying out her duties and unauthorised absence which led to her suspension from work without pay on two occasions. This disciplinary action took place in accordance with FAS procedures. The worker confirmed in writing after the first suspension that she was making a fresh start , however, further difficulties in the workplace continued.
2. When the worker had not returned to the employment she was contacted by Management, advised that she was absent without authorisation and medical certificates were required. She failed to submit medical certificates and, therefore, was not paid. Subsequently her doctor confirmed the worker's illness as being stress related and this diagnosis was confirmed by the Company's doctor. The Company reviewed her case and offered the worker the Ill Health Early Retirement Scheme which she accepted effective from 1st August, 1997. An element of retrospection was paid.
3. In relation to the issue of annual leave the worker did not have an entitlement as she was not in attendance at work.
4. The worker's eligibility for permanent health insurance lapsed when she stopped making contributions.
5. The travel and subsistence claims relating to monitoring visits were refused because the monitoring procedure was not carried out and the worker's explanation for same was unsatisfactory.
6. The Company gave no undertakings to the worker relating to the complaints she raised as these were all dealt with before she accepted the Ill Health Early Retirement Scheme. All information requested was provided in a comprehensive manner in accordance with FAS procedures.
RECOMMENDATION:
The Court has given serious consideration to all aspects of this case. The claimant has put forward many issues to the Court to consider in relation to difficulties she encountered during her employment with the organisation. It is not appropriate for the Court to go through all of the items.
The claimant has activated claims relating to two suspensions from work, which took place a number of years ago. The Court does not consider it appropriate to revisit these issues as they were dealt with at the time in line with the normal disciplinary procedures within the organisation and were not referred to a third party for investigation at the time, as was her right to do so if she wished.
Following the second of these suspensions the claimant did not report back for work and was paid sick pay benefit for a period. Thereafter due to absence without authorisation she received no payment for over a year. The claimant applied for Permanent Health Insurance and was informed that she had no entitlement to such benefit due to her break in contributions caused by the non payment of sick pay. The culmination of these events appears to have caused great stress for the claimant.
The Court considers it regrettable that she was not made aware of the possible disentitlement to PHI due to the non-payment of contributions. The Court is of the view that the rules of the scheme should have been clearly explained to her, particularly as she was likely to be a beneficiary of such benefit. It is also regrettable that the claimant was not provided with assistance in line with that provided by Employee Assistance Programmes. Such asistance may have helped the employee during this period.
The Court is of the view that the distance from headquarters and its various departments lead to the sense of isolation felt by this employee.
The Court notes that the problems associated with PHI have been referred to the Insurance Ombudsman by way of resolution and considers that to be the most appropriate method of resolving that issue.
Without prejudice to the merits of the claim , the Court is of the view that the travel and subsistence claims sought should be paid as a gesture of goodwill.
The issue of an outstanding entitlement to annual leave for the year 1996 was raised: management agreed at the Court hearing to investigate this issue and will pay any payment due.
The Court notes that the Ill Health Early Retirement Scheme was offered and accepted by the claimant and the Company decided to back date this entitlement to the date the claimant was last paid sick pay, this gesture is over and above the commitments under the scheme
The Court takes the view that this offer can be construed as a form of compensation for the lack of employee assistance offered to the employee. The Court recommends that the claimant accept the terms offered to her in full and final settlement of all outstanding issues.
Signed on behalf of the Labour Court
20th November, 2000______________________
tod/todCaroline Jenkinson
Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Tom O'Dea, Court Secretary.