FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TUSLA CHILD AND FAMILY AGENCY - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Foley Employer Member: Mr Murphy Worker Member: Mr McCarthy |
1. An appeal of an Adjudication Officer's / Rights Commissioner's Decision no: r-153492-ir-15/MMG.
BACKGROUND:
2. This case concerns thea claim for payment to the claimant of her remaining entitlement to sick pay under the employer’s scheme following the exhaustion of her entitlement under the Serious Physical Assault Scheme.
- The Employer said the Claimant was authorised payment under the Serious Physical Assault Scheme backdated to July 2013 following an incident at work. However, when the Claimant did not return to work as advised by the Occupational Health Physician, the paid element of the Scheme having previously been extended, was withdrawn in February 2014.
- The Union said the Occupational Health Physician did not carry out an examination of the Claimant and her own Doctor had not deemed her fit to return to work. The Claimant has not exhausted her sick leave entitlement and she is entitled to be paid for the days she was out sick.
- This matter was referred to an Adjudication Officer for investigation and Recommendation. On the 9th December 2015 the Adjudication Officer issued the following Recommendation:-
- Notwithstanding the fact that the policy with sick pay is a discretionary policy and is also governed by its own rules of usage over a rolling period of time it is clear that the claimant requested, was assessed for and was granted 6 months full pay under the Serious Physical Assault Scheme.
Therefore it is my recommendation that the specific aspect of the claim should be denied but reaffirm the intent of both parties to pursue the medical review situation with the ultimate review of an early return to work.
- Notwithstanding the fact that the policy with sick pay is a discretionary policy and is also governed by its own rules of usage over a rolling period of time it is clear that the claimant requested, was assessed for and was granted 6 months full pay under the Serious Physical Assault Scheme.
The Employee appealed the Adjudication Officer’s Recommendation to the Labour Court on the 8th January 2016 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on the 28th April 2016.
UNION’S ARGUMENTS:
3. 1. The Occupational Health Physician did not carry out any examination of the Claimant.
2. The rules of the Serious Physical Assault Scheme provide that, upon expiry of the employee’s entitlement under that scheme, “an employee may be granted sick pay in accordance with the normal sick pay scheme for officer grades”.
3. The Sick Pay scheme was amended by the Labour Court and is a rolling scheme and is not discretionary. The Claimant should be paid for the remaining sick leave she is entitled to.
EMPLOYER’S ARGUMENTS:
4. 1. The Occupational Health Physician made recommendations on the basis of relevant medical reports.
2. The decision not to pay sick pay to the Claimant was justified in the circumstances.
3. The Claimant resumed full time duties in June 2015.
DECISION:
This is an appeal by the claimant against the decision of an Adjudication Officer / Rights Commissioner.
The dispute relates to the refusal of the employer to allow the claimant access to the sick pay scheme in place in the employment following her access to, and exhaustion of benefit under, the employer’s Serious Physical Assault Scheme including entitlement deriving from the employer’s agreement to extend the claimant’s period of benefit under the scheme.
Background
The claimant participated in the Serious Physical Assault Scheme between July 2013 and February 2014. The claimant had accessed the sick pay scheme of the employer for a total of 259 days over a period of five years before the incident giving rise to her participation in the Serious Physical Assault Scheme. The claim before the Court is for payment to the claimant of her remaining entitlement to sick pay under the employer’s scheme following her exhaustion of entitlement under the Serious Physical Assault scheme as extended by the employer in her case.
Discussion
The events relating to the claimant’s absence include apparent differences of view over time between the claimant’s doctor and the employer’s Consultant Occupational Health Physician as to the claimant’s readiness to return to work. Indeed it has been stated to the Court that on one occasion the claimant’s doctor confirmed her readiness to return to work and altered that assessment subsequently. It has also been stated to the Court that the claimant herself on one occasion confirmed to the employer that a certification by her doctor that she was suffering from work-related stress was incorrect.
The Court has not been provided with details of the possible entitlement of the claimant to sick pay under the employer’s scheme taking account of her history of benefit under the scheme and the rules of the scheme. The Court has been provided with the rules of the Serious Physical Assault Scheme which provide that, upon expiry of the employee’s entitlement under that scheme, “an employee may be granted sick pay in accordance with the normal sick pay scheme for officer grades”. The Court has also been advised that issues related to the absence record of the claimant in the within case had been raised by the employer prior to the incident giving rise to the claimant’s access to the Serious Physical Assault Scheme.
Recommendation
In all of the circumstances and without prejudice to the position of either party, the Court recommends that the employer should pay a sum of €1,250 to the claimant as a gesture of goodwill and in full and final settlement of her claim for access to the sick pay scheme of the employer.
Signed on behalf of the Labour Court
Kevin Foley
CR______________________
13th May, 2016.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.