FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TUSLA (HSE SOUTH) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Mr Shanahan |
1. Appeal of Adjudication Officer's Recommendation.
BACKGROUND:
2. The case before the Court concerns the Employer's appeal of anAdjudication Officer’s Recommendation. The dispute relates specifically to the Claimant's claim for loss of earnings and the removal of a period of sick leave from her personnel file. The Claimant is employed as a social care worker in a residential facility which cares for young people. Following two alleged incidents in the workplace, the Claimant absented herself from work pending the investigation and outcome of the situation. The Employer maintains that there was no reason for the Claimant to remain on sick leave pending the outcome of the investigation on the basis that it had put the necessary measurements in place so as to ensure the Claimant could carry out her duties in her normal manner. The matter was referred to an Adjudication Officer for investigation and recommendation. On the 19th July 2016, the Adjudication Officer issued the following Recommendation:
"...I recommend that in order to conclude this dispute, the complainant's sick leave record be cleared of the related absence and that a compensatory lump sum of €4,500 be given to her as a contribution towards her earnings as a once-off settlement".
On the 15th August 2016, the Employer appealed the Adjudication Officer’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 8th November 2016.
UNION'S ARGUMENTS:
3. 1. The Claimant contends that she had no option other than to remain absent on sick leave pending the conclusion of the investigation.
2. The Claimant suffered a significant financial loss and exhausted all of her sick leave entitlements while absent from the workplace through no fault of her own.
3. The Claimant maintains that she was treated in an inequitable manner as a result of Management's failure to accommodate her requests to be facilitated with an alternative leave scheme.
EMPLOYER'S ARGUMENTS:
4. 1. The Employer asserts that the Claimant was paid during the period of absence in accordance with its sick leave regulations.
2. The Employer is of the view that there was no reason to place the Claimant on an alternative leave scheme while she was absent on sick leave.
3. The Employer contends that it took every step to facilitate a phased return to work for the Claimant and supported her throughout the entire process.
DECISION:
This is an appeal by Tusla (HSE South) of an Adjudication Officer’s Recommendation which held that the Claimant’s sick leave record should be cleared of the absences taken from 8thMay to 25thOctober 2015 and she should be paid a compensatory lump sum of €4,500 as a contribution towards her earnings loss as a once off settlement.
The Claimant is employed as a Social Care Worker in a residential centre which caters for young people. On 7thMay 2015, two allegations were made by young persons against the Claimant. One was immediately withdrawn, the other was the subject of investigation. During the period of the investigation, a risk assessment was carried out and protective measures were put in place to ensure the Claimant was not alone in the company of the young person in question. On 8thMay 015 the Claimant went on certified sick leave and was paid in accordance with the Sick Leave Regulations. On 12thJune 2015 the Social Worker Team Leader verbally advised her that there was no child protection concern and that he would issue his report.
The Claimant contended that the Trust in Care Policy should have been implemented, whereby a staff member may be placed on Administrative or Protective Leave pending the outcome of the investigation. Instead she claimed that her sick leave was exhausted and she sustained a loss of income in the order of €9,685.
Management stated that the placing of a staff member on Administrative/Protective Leave is not a decision taken lightly and has only been taken in very limited circumstances. Such decisions are only taken, if following a risk assessment, it was deemed that the staff member posed a risk to a service user or that the staff member was at risk by remaining on duty. It stated that in this case, neither was applicable.
The Claimant maintained that she had no choice but to remain absent until the outcome of the investigation. The final report was issued on 28thAugust 2015. She returned to work on 26thOctober 2015.
Management stated that the Claimant was advised verbally on 12thJune 2015 that there was no case to answer, this was followed up with confirmation of that fact by a letter dated 15thJuly 2015 from the Social Care Manager. The investigator was on sick leave around this time, his report was issued in late July 2015. As the Claimant was dissatisfied with the report, the final report did not issue until 28thAugust 2015.
Having considered the written and oral submission made by both parties, the Court is of the view that Management were entitled to determine that the application of the Administrative/Protective Leave under its Trust in Care Policy was not appropriate in this case. However the Court is of the view that there were some deficiencies in the application of the Policy,viz,
- Management did not consult with the Claimant regarding the risk assessment and associated protective measure it intended to implement;
- The period from the institution of the complaint to the time it was formally reported with confirmation that the matter was closed and there was no case to answer, was somewhat elongated.
In all the circumstances of this case, the Court decides to vary the Adjudication Officer’s Recommendation. The Court recommends that 40% of the Claimant’s sick leave absence during this period should be discounted for the purposes of her sick leave record and she should be paid compensation of €4,000.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
23rd November 2016______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.