FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : SLIGO COUNTY COUNCIL (REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT AGENCY) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Haugh Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Recommendation r-151081-ir-14/EOS.
BACKGROUND:
2. This dispute concerns the manner in which the Worker is to return from sick leave. This dispute was referred to a Rights Commissioner for investigation and recommendation. On the 24th April, 2015 the Rights Commissioner issued the following Recommendation:-
- 'In the complaint referred to the Commission, the claimant specifies his complaint as"I am being prevented from returning to my job after a period of absence due to illness". Given that the complaint did not refer to loss of earnings, and in light of the fact that the Council has continued to pay the claimant full sick pay during this period even though he has exhausted his entitlement for full sick pay since August 2014, I am recommending against the claim for loss of potential earnings.
I have considered the entirety of evidence presented by the parties and have concluded that the amended formula of wording documented in the respondent's email to SIPTU dated the 14th January 2015 [...] to be fair and reasonable.
The Union has confirmed that they have no objection to the requirement to undergo any necessary refresher training.
With respect to the third requirement of a 3 month trial, I note the contents of both letters from [the Consultant] as well as the provisions of the respondent's attendance management policy. I recommend that the Council accept that the trial recommended by [the Consultant] has a welfare focus as opposed to a performance improvement focus as set out in paragraph 2.12 of the Attendance Management Procedure and that as outlined by [the Consultant] any behavioural incidents of concern to his employers should be confronted immediately".'
On the 14th May, 2015 the Worker appealed the Rights Commissioner's 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 7th October, 2015.
3. 1. The Employer's actions have caused the Worker a great deal of stress and anxiety.
2.The Worker feels that he is being unfairly treated by the Employer.
3.The Worker should be allowed return to work without the proposed preconditions.
EMPLOYER'S ARGUMENTS:
4. 1.The Employer followed its own procedures at all stages of the Worker's absence from work.
2.The Employer acted on independent medical advice when it set out the conditions for the Worker's return to work.
3. The Employer is willing to facilitate the Worker's return to work once it is satisfied that the Worker has met these conditions.
DECISION:
Background
1. The Claimant is employed by the Respondent as a retained firefighter. He went on certified sick leave on 28 May 2014 suffering from stress. He has not returned to the workplace to date despite recommendations from the Respondent’s medical advisors that he is fit to do so.
2. The Claimant disputes what he perceives to be an unfair set of pre-conditions to which his return to work has been made subject by the Respondent. The Respondent, for its part, asserts that in imposing the aforementioned pre-conditions it is simply implementing the recommendations of its expert medical advisors and that it would be negligent of it to do otherwise.
3. The Claimant has also referred a claim in respect of loss of earnings.
4. The Claimant attended for an independent medical assessment with the Respondent’s Occupational Health Advisor on 5 August 2014. She found that the Claimant was not fit to return to work at that stage and requested he attend for a subsequent assessment, which he did on 8 September 2014. Thereafter, the Doctor submitted a written report to the Respondent in which recommended that the Claimant be evaluated by a Consultant and that his return to work date should be contingent on the Consultant’s recommendations.
5. The Consultant recommended that the Claimant be allowed to return to work as soon as possible thereafter and that he should be afforded “a trial in the work situation”. She further recommended that any problems that recurred in relation to the Claimant's behaviour in the workplace should be addressed immediately.
6. On the basis of the Consultant’s Report, the Respondent wrote to the Claimant on 11 November 2014 and advised that his return to work would be subject to 4 conditions. A copy of the Consultant’s Report was enclosed with the correspondence.
7. The Claimant subsequently, through his Union, informed the Respondent that he did not regard the pre-conditions it sought to place on his return to work as acceptable or within its remit.
8. The Respondent wrote to the Union on 12 November clarifying the substance of, and basis for, the individual preconditions it was seeking to apply to the Claimant’s return to work. The Respondent’s correspondence of that date emphasises that the Respondent wanted the Claimant to return to work as soon as possible and restated the Respondent’s belief that the stated preconditions were reasonable and necessary in order to protect the Claimant’s health and safety.
9. The Union disputed certain aspects of the Consultant’s Report and also contended that a number of the pre-conditions sought by the Respondent were not necessitated by the Report’s contents.
10. As a consequence of queries raised by the Union, the Respondent requested the Consultant to provide written clarification in regard to certain of the recommendations contained in her original report. These clarifications were furnished on 14 January 2015.
11. The following day, the Respondent advised the Claimant’s Union Representative that it was prepared to amend the first of the 4 pre-conditions it had sought to impose on the Claimant.
12. Despite the parties’ ongoing efforts to get agreement concerning the Claimant’s return to work, agreement was not reached and the Complainant referred a complaint to the Rights Commissioner which was heard on 19 January 2015. The Rights Commissioner issued a comprehensive recommendation on 24 April 2015 in which she recommended that the Claimant accept the revised conditions set out in the Respondent’s correspondence of 15 January 2015.
13. The Rights Commissioner recommended against the Claimant’s claim for loss of earnings.
Recommendation
Having considered the totality of the parties’ written and oral submissions, the Court upholds the Rights Commissioner’s recommendation in full while noting that the level of agreement previously achieved by the parties in relation to the revised conditions attaching to the Claimant’s return to work appears to have waned in a number of respects.
The Court so recommends.
Signed on behalf of the Labour Court
Alan Haugh
20th October, 2015______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jonathan McCabe, Court Secretary.