ADJUDICATION OFFICER RECOMMENDATION

Adjudication Decision Reference: ADJ-00002956

Complaints for Resolution:

Date of Adjudication Hearing: 10/10/2016

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance Section 13 of the Industrial Relations Act, 1969 and following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Attendance at Hearing:

Background

The Complainant is employed as a Paramedic since 1^st September 1996. He has been out sick following an alleged workplace accident in 2014. He has claimed that his employer has failed to give him Temporary Rehabilitation Remuneration (TRR) also the employer has failed to properly engage with him regarding his grievance.

 Complainant’s Submission and Presentation:

1) Refusal to grant TRR

The Staff Officer HR verbally informed the Complainant that the TRR was approved and referred it to Superannuation for payment. The Staff Officer some days later phoned him to advise that there was a problem with the approval. On 23^rd March 2014 the Respondent stopped paying sick pay. The new TRR came into play on 1^st April 2014. The Pension Rate of Pay (PRP) was replaced by TRR. He didn’t know what the PRP rate was. The sick pay scheme provided for full pay for 3 months and half pay for 3 months. Her got full pay for 3 months but didn’t get the half pay. He was paid to March 2014. TRR was suggested in December 2015. TRR is an 18 month payment. He is seeking this payment.

2) Non Engagement

He is seeking that the Respondent decides one way or other about his position; a job or early retirement. In June 2014 the Respondent offered him temporary rehabilitative duties. This was declined due to his illness as he could not do the job as it required heavy lifting. He gave a list of modified duties in March 2016, e.g. office work or driving duties. The Respondent declined to give that job because of the embargo on jobs in the public sector. He was offered a role in the Control Centre dealing with non-emergency issues in June 2016. He was promised a job description and that rate of pay was approximately half of his substantive role rate of pay. He raised concerns about difficulties in getting to and from that centre due to his injury. He is still awaiting the job description and details about the role despite being told he would get it within 12 days. The Occupational Consultant declined to review his case. He had made a complaint to the Medical Council about the Consultant.

In July 2016 he lodged a Stage 1 grievance seeking that the respondent would make its mind up either to get him back to work or to grant early retirement. He heard nothing from the Respondent and so he escalated it to Stage 2 and also he has heard nothing. He then escalated it to Stage 3 and it was referred back to Stage 1. He agreed to this but he has heard nothing since.

He is seeking either a return to work in some format or the granting of early retirement.

Respondent’s Submission and Presentation:

The Complainant commenced sick leave on 24^th February 2014. He was placed off pay on 23^rd March 2015 in accordance with the scheme, i.e. 84 days in one year. He submitted an application for TRR in December 2015. This was forwarded to the Superannuation section for processing. It was noticed that his illness commenced on 24^th February 2014 therefore the new sick pay scheme did not apply to him. This did not allow for TRR, formally known as Pension Rate of Pay. The new sick play scheme was introduced on 31^st March 2014. Circular 005/2014 outlines the transitional provisions that should apply for staff on sick leave at 31^st March 2014. TRR was not applicable to him and he was informed in writing on 7^th January 2016 and his union was informed on 14^th January 2016. He was not satisfied with the responses received.

It is the Respondent’s position that his sick leave commenced prior to the introduction of the New Sick Pay Scheme. The scheme that he was under did not allow for the payment of TRR. Under the old scheme there was a provision for an extension of the sick pay scheme if an employee had an excellent leave record and suffered from a serious illness/injury. He had a record of absenteeism and so he did not satisfy this criterion. There is no provision in the scheme for half pay. The scheme provided for 84 days in full only. Under Circular 05/2015 it advises that where an employee is on sick leave on the date of the commencement of the new sick leave scheme the pre existing sick leave provisions will continue to apply for the duration of that episode of sickness absence. The provisions of the new sick leave scheme did not apply to him. The Respondent sought advice and clarification on their interpretation of the circular. It was confirmed that their interpretation was correct and that he was not entitled to TRR. He was never promised anything other than his legitimate entitlements. He is aware that that the Respondent is required to implement policies and procedures fairly to all staff. He is not entitled to TRR.

Findings

I find that the Respondent is obliged to apply its policies in a fair manner.

These policies and procedures were implemented following collective agreements or department circulars which carry full authority.

It is incumbent on all users to adhere to these policies and procedures.

I note that the Complainant was a union member and had the benefit of that membership.

I find that it was unfortunate the timing regarding his absence and the introduction of the new scheme.

I find that the Respondent has applied the sick pay scheme correctly both in the sick days provided and the application of the new rules.

I find that the Respondent is not in a position to treat one individual differently as this could not be justified.

I find that the Complainant, based on the rules of the scheme, is not entitled to Temporary Retirement Remuneration (TRR).

I find that the manner in which the Complainant deals with the Respondent has led to difficulties in the relationship and how they have engaged with each other.

I find that if the Respondent agrees to a course of action such as the provision of information then it should be done.

I find that the Respondent should have engaged with the Complainant at Stage 1 level of his grievance in the first instance.

I note that the Complainant has sought either a job or TRR.

I note that the Complainant is undergoing further surgery which is viewed as a last opportunity to address his medical condition that prevents him returning to work.

I am aware that if this surgery is a success then he could return to his substantive role as a Paramedic. Also if it is not successful then it appears that he will not be able to return to his substantive role.

However in view of his lengthy absence from work the parties should explore the possibility that he may never return to work.

Recommendation:

Section 13 of the Industrial Relations Act, 1969 requires that I make a recommendation in relation to the complaints.

I recommend that the Complainant accepts that he must be bound by the Respondent’s policies, procedures and agreements.

I recommend that he accepts that he cannot be treated differently to other employees.

I recommend that he accepts that he is not entitled to Temporary Retirement Remuneration, based on the rules of the scheme.

I recommend that both the Respondent and the Complainant engage on his Stage 1 grievance with immediate effect.

I recommend that the Complainant should apply for early retirement with immediate effect.

Dated:   16^th November 2016