FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : WYETH NUTRITIONALS IRELAND - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Hayes Employer Member: Ms Doyle Worker Member: Mr O'Neill |
1. Appeal of Recommendation of a Rights Commissioner r-082356-ir-09
BACKGROUND:
2. The Worker was employed as a line service operator since May 1988. The issue in dispute arises in relation to the interpretation and application of the terms of the sick pay scheme operated by the Company.
The issue involves a claim by a Worker. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 16th March 2010, the Rights Commissioner issued his Recommendation as follows:-
"This dispute in particular relates to the priority accorded to the medical opinion in circumstances where an employee's doctor does not agree with the occupational health physician concerning fitness to return to work.....I am not in a position to recommend in favour of the claimant."
On the 23 April, 2010 the Worker appealed the Rights Commissioners Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act 1969. A Labour Court hearing took place on the 24th November, 2010.
UNION'S ARGUMENTS:
3. 1.The Worker contends that he should be paid in accordance with the sick pay scheme as he as he had furnished proper medical certification at all times.
2. The matter should have been resolved by dialogue between the Worker's General Practitioner and the Company's Occupational Health Physician.
COMPANY'S ARGUMENTS:
4. 1. The Occupational Health Physician bases opinions not only on a person's medical condition and fitness to work but also on detailed knowledge and assessment of the person's role and responsibilities on the site.
2. The Occupational Health Service has over 20 years experience with the Company and the Company relies on this medical expertise.
DECISION:
The Court has carefully considered the submissions of both parties in this case.
The Court notes that the Company operates a very generous Sick Pay Scheme. Payment of benefit under the scheme can be withheld if the Company Occupational Health Physician (OHP) certifies an Employee fit for and the Employee fails to return to work. The Court was advised that this arrangement works well in the vast majority of cases.
Where there is a conflict between the OHP and an Employee’s doctor regarding fitness for work the difference is normally resolved by way of a discussion between the medical professionals. Whilst this arrangement routinely works well the system broke down on this occasion. No such conversation took place or was attempted by either medical professional.
In those circumstances the individual was left in the position that he had conflicting advice with no means of, or procedure by which to, resolve the dispute. Furthermore the Court was advised that the individual was not notified by the Company that his sick pay would be withheld in the event that he was deemed fit for work by the OHP irrespective of any certificate to the contrary issued by his own doctor. Therefore he was not aware of the gravity or urgency of the matter.
Accordingly the Court Recommends
•That the Company set out the details of the scheme in writing for all of its Employees.
•That a definite procedure be put in place for resolving differences in assessment of fitness for work that arise between the OHP and GP.
•Where such a difference arises the Company should notify the Worker concerned and set out the consequences that arise in relation to the payment of sick pay.
In this case the Court is satisfied that the individual involved was not culpable in the confusion that arose regarding company policy on the payment of sick pay where a dispute arises between the OHP and a GP and accordingly should be paid for the period for which it was withheld.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
30th December, 2010______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.