PW151/2013

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                                  CASE NO.

Department Of Agriculture, Food & The Marine - appellant                                                       

                                                                                                                               PW151/2013

against the decision of the Rights Commissioner in the case of:

Patricia Murphy - respondent

under

PAYMENT OF WAGES ACT, 1991

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms N. O'Carroll-Kelly BL

Members:     Mr P. Pierce

                    Mr C. Ryan

heard this appeal at Dublin on 15th April 2014

Representation:

_______________

Appellant(s) :       Mr Graham Lennox, Department of Agriculture, Food & The

                              Marine, Legal Services Division, Agriculture House, Kildare

                              Street, Dublin 2

Respondent(s) :   Ms Phyllis Behan, Assistant Secretary General, PSEU, 30

                            Merrion Square, Dublin 2

This case came before the Tribunal by way of an appeal by the employer (appellant) against the decision of the Rights Commissioner ref: (r-127476-pw-12/JW) under the Payment of Wages Act, 1991.

Summary of Case

The respondent employee went on sick leave on 14 September 2011 and submitted a medical certificate for her absence. She was suffering from work related stress and all parties were aware that she was having difficulties with her line manager. Pursuant to the appellant department’s policies a meeting was arranged with the Chief Medical Officer (CMO). The CMO met with respondent employee on 21 October 2011 and the CMO’s report stated that “…her absence is due to an ongoing inter-personal relationship problem with one of her managers.” The CMO’s report goes on to say that “Ms M enjoys the work in her section and is keen to resume work but first she needs to meet with management to discuss the problem and come to an agreeable solution. I recommend that you organise a meeting with all the relevant people….”.

The recommendation of the CMO was not implemented. However the respondent employee did meet with one of her managers, (Mr.B) and he suggested mediation. The respondent employee consented to that suggestion. The mediation process was never invoked. At all stages of the process the respondent employee was on medically certified sick leave. The appellant employer conceded that the respondent employee did not necessarily have to return to work to be involved in the mediation process. The appellant employer stated that alternative working arrangements would be put in place however nothing definite was put to the respondent employee.

Determination

In circumstances where an employee is on medically certified sick leave, where the recommendations of the CMO were not implemented, where the mediation process was not invoked, where no alternative suitable work was found for the respondent employee and when a bullying and harassment issue was still live, albeit no formal procedure had been invoked any attempt to remove the respondent employee from the payroll was unjustified. The Tribunal finds that the action of the appellant employer in removing the respondent employee from the payroll amounted to an unlawful deduction from her wages.

Accordingly the Tribunal finds that the appeal fails and the decision of the Rights Commissioner is upheld.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)