FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : IMPERIAL TOBACCO (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal of Rights Commissioner Recommendation R-065329-Ir-08-EOS
BACKGROUND:
2. This case concerns an appeal by the Employer of Rights Commissioner Recommendation r-065329-ir-08-EOS. The issue in dispute concerns an employee of Imperial Tobacco, Mullingar (represented by IBEC) and SIPTU in relation to the alleged removal of a worker from the Company's Sick Pay Scheme.
Management's position is that the worker was paid his sick pay entitlements in line with the sick pay scheme and was only removed from payment after he was declared fit to return to work but failed to do so.
The Union's position is that the worker was removed from the sick pay scheme on the basis that he was declared fit to resume work by an independent medical assessment, yet his own General Practitioner (G.P.) had declared him unfit to return to work. It is seeking that the worker be paid the 4 weeks sick leave entitlements (21st January 2008 - 21st February 2008) that was refused to him by the Company.
The dispute was referred to a Rights Commissioner for investigation. Her Recommendation issued on 21st January, 2009 and recommended that the worker be paid the 4 week's sick pay entitlements on the basis that the sick pay scheme was silent on what should happen when there is a difference of medical opinion between a worker's G.P. and an occupational physician nominated by the Company. This was recommended on the basis that Management had refused to consider a compromise position put forward by the Union for a further medical assessment which would be independent of the nominated Occupational Physician and the worker's own G.P.
On the 23rd February, 2009 the Employer appealed the Rights Commissioner's Recommendation in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 16th June, 2009.
UNION'S ARGUMENTS:
3 1 The worker had an entitlement to eight weeks sick pay per calendar year. He was removed from the sick pay scheme on the basis that an Occupational Physician nominated by the Company found that he was fit to resume work yet his own G.P. had deemed him unfit.
2 In an attempt to resolve the matter, the Union (on behalf of the worker) was prepared to accept the findings of a further independent medical assessment of a mutually agreed Physician.
COMPANY'S ARGUMENTS:
4 1 The worker had an entitlement to payments under the occupational sick pay scheme while he was absent on certified sick leave. His entitlements ceased when he was certified to return to work but failed to do so.
2 Management have the right to refer workers to an occupational physician of its choice if a worker is absent on sick leave for an extended period of time. In this case the worker was on sick leave and all sick pay entitlements were exhausted.
DECISION:
The matter before the Court concerns an appeal by the employer of a Rights Commissioner’s Recommendation, which found in favour of the worker’s claim for the payment of four weeks sick pay where it had been declined by the employer.
The worker sought payment of sick pay for the period 21st January to 21st February 2008, when he was on continuing sick leave from 3rd October 2007. By the end of December 2007, he had exhausted the sick pay entitlement in accordance with the Company’s scheme. However, the Company stated that he was inadvertently paid sick pay for the first two weeks in 2008. It did not seek a refund of the erroneous payments, however, it made it clear that no further payments would be made until he fulfilled his contractual duties.
The Company held that he was not entitled to further sick pay in accordance with its scheme as he had been deemed fit to return to work by Doctors appointed by Management during both October 2007 and December 2007. The Union on his behalf held that these medical opinions were contrary to his own GP’s advice and consequently, the Company should have sought an independent third party assessment of his condition.
Having considered the submissions of both sides the Court notes that the sick pay scheme provides as follows:
- “The company reserves the rights to require an employee to be examined by an appointed doctor or to obtain a special report from his or her own doctor.”
While this provision is contained as a condition of the scheme, the Court is of the view that it is inadequate in providing the necessary protection the Company seeks as it fails to outline the consequences where there is conflict of opinion between a Company-appointed-Doctor and the worker’s GP. The worker’s GP certified his condition as “stress reaction to work”.
On 12th November 2007 he wrote to the Company requesting a formal investigation into allegations of bullying.
The Court notes that the Company made a number of attempts to deal with his concerns and attempted to set up a formal investigation in his complaints. To enable the investigation to proceed, and despite having two independent medical opinions stating his fitness to return to work, the Company on 1st February 2009 requested him to provide it with a medical certificate from his GP stating his“ability or otherwise to participate…”. The worker agreed to this request, however, his GP certified him unfit to work from 21st January 2008 until 22nd February 2008. By 22nd February 2008 he was certified as fit to return to work and did return.
In all the circumstances of this case the Court fully understands the difficulties facing management in attempting to deal with the worker’s complaints and to ensure his speedy return to work. However, this process was dependent on a medical certificate stating that he was medically fit to partake fully in the investigation process and in that regard the Company wrote to him on 1st February 2009.
The Court also notes that the worker complied with the Company’s instructions and submitted a medical certificate on 21st January 2008 which deemed him unfit for work until 22nd February 2009.
Therefore, despite the independent medical opinions on his fitness to return, the Court is satisfied that the worker complied with the Company’s stipulation advised to him in its letter dated 1st February 2008,regarding his“ability or otherwise to participate…”and, in those circumstances, the Court is of the view that the sick pay payments should have continued during this period. Therefore, the Court does not uphold the Company’s appeal. Accordingly, the worker should be paid an additional four week’s sick pay.
The Rights Commissioner recommended that both parties should review the sick pay scheme with a view to agreeing a mutually satisfactory formula that addresses the matter of conflicting medical opinions. The Court upholds this aspect of the Recommendation.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
23rd_July 2009______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.