FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE SOUTH EAST (TREATMENT ABROAD SCHEME) - AND - A WORKER (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Mr Haugh Employer Member: Mr Marie Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Recommendation No R-147457-IR-14/JT.
BACKGROUND:
2. The case before the Court concerns the Worker's appeal of Rights Commissioner's Recommendation No R-147457-IR-14/JT. The dispute relates specifically to the Worker's claim that she was treated in an inequitable manner by her Employer following her removal from the Employer's sick pay scheme. The Worker maintains that the Employer unfairly took the decision to exclude her from the scheme. The Employer rejects the Worker's claim, arguing that it operated appropriately within the terms of the sick pay scheme when the Worker was removed from it. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 10th December 2015, the Rights Commissioner issued his recommendation as follows:
"I am satisfied that the Respondent has acted way and beyond what is required of any employer. In regard to any possible transfer of the Claimant, I leave that matter in the hands of the Respondent.
I do not find the claim well founded and it fails".
On the 11th January 2016 the Worker appealed the Recommendation of the Rights Commissioner to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 12th April 2016. The following is the Decision of the Court:
DECISION:
This is the Worker’s appeal from a recommendation of a Rights Commissioner – r-147457-ir-14/JT – dated 10 December 2015. The Rights Commissioner found that the Worker’s claim was not well founded. The notice of appeal was received by the Court on 11 January 2015. A Labour Court hearing took place on 12 April 2016.
Background
The Worker is employed as a Clerical Officer. She availed of maternity leave in 2013. Thereafter, she took accrued annual leave between 7 July 2013 and 30 August 2013. The Worker went on long-term sick leave on 2 October 2013 and did not return to work until 11 August 2014. She was paid sick pay in accordance with the terms of the Respondent’s discretionary sick pay scheme until 18 February 2014 from which date sick pay was withdrawn. The dispute before the Court relates to the Respondent’s decision to discontinue payment of sick pay to the Worker from the aforementioned date.
The Worker attended for an occupational health assessment on 10 February 2014, at the Respondent’s request. The report (dated 10 February 2014) that issued from that assessment to the Worker’s line manager recommended that it would be in her interest to transfer to a different department within the Respondent organisation. A meeting had been scheduled to take place between the Worker and her line manager on 12 February 2014 following the occupational health assessment. The Worker advised her line manager, albeit just before close of business on 11 February, that she wished to be accompanied to the meeting the following morning. This meeting was postponed as a consequence of the Worker’s request to be accompanied although the Worker attended for the meeting along with her representatives.
The Respondent issued a letter on 12 February to the Worker advising that she was not entitled to be accompanied to what was intended to be an attendance review meeting intended to discuss the Worker’s ‘non-compliance’ with the Respondent’s Management Attendance Policy and ‘the work related stressors’ that contributed to her ongoing absence. The letter also advised the Worker that consideration would be given to removing her from the HSE sick pay scheme in the event that she was deemed not to be complying with ‘reasonable measures to support [her] in [her] absence’. She was invited to attend a rescheduled meeting set for 14 February 2014. There followed a detailed exchange of correspondence between the Union and the Respondent in relation to whether or not the Worker was entitled to be accompanied to any meeting.
The Worker was removed from the sick pay scheme with effect from 18 February 2014. The Worker submitted a formal grievance in response to the Respondent’s decision to cease her sick pay and related issues. The grievance was not upheld. Ultimately, the Worker attended a management review meeting, unaccompanied, on 26 May 2014 and returned to work on 12 August 2014.
Case on behalf of the Worker
The Union submits that the Worker should have been permitted to be accompanied at the meeting of 12 February 2014 as the meeting had the potential to be very stressful for the Worker and the Respondent ought to have been aware of this given that the Respondent knew of the work-related stressors flagged by the Worker and had also received the occupational health report dated 10 February 2014. The Union accepts that the Attendance Management Policy is silent in relation to the issue of employees being accompanied/represented at review meetings conducted thereunder but submits that it is aware of two similar situations in which the worker concerned was permitted to be accompanied by an IMPACT representative.
Finally, the Union submitted that the Respondent should not have taken the decision to remove the Worker from the sick pay scheme without first undertaking a disciplinary procedure. The Union characterised the Respondent’s decision in this regard as a sanction. In the within claim, the Union is seeking an award of “compensation for the undue stress caused [to the Worker] by not being allowed to be accompanied to the Review Meeting and by not being facilitated with a timely transfer, as promised by HSE Management”.
Case on behalf of the Respondent
The Respondent submits that the Worker was removed from the sick pay scheme as she failed to comply with the terms of the scheme: she refused to meet her supervisor in February 2014 to discuss her continuing absence; failed to submit medical certificates in a timely manner; and she did not remain in regular contact with the Respondent throughout the period of her sick leave absence despite her supervisor’s best efforts to maintain contact with her.
Recommendation
The Court does not accept the Union’s submission that the removal of the Worker’s sick pay with effect from 18 February 2014 equates to a disciplinary sanction. Nevertheless, the Worker’s concerns regarding work-related stress and her request to be transferred to an alternative department within the Respondent are matters that the Respondent ought to have been far more proactive in dealing with. The situation in which the Worker found herself – deprived of sick pay for some 6 months because she had a genuine concern about attending unaccompanied at a meeting she believed could have had long-term implications for her future in the workplace - should not have been allowed to continue for that period of time.
Having considered in some detail the parties’ written and oral submissions, the Court recommends that the Respondent should deem the Worker to have been restored to the sick pay scheme with effect from 18 May 2014 and pay her the sick pay she would have been entitled to from that date until her return to work on 12 August 2014.
Signed on behalf of the Labour Court
Alan Haugh
29th April 2016______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.