ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002135

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 17/05/2016

Workplace Relations Commission Adjudication Officer: Michael Hayes

Procedure: 2015

In accordance with Section 41(4) of the Workplace Relations Act, and the abovementioned Act, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

The complainant submits that he suffered an injury in the course of his duties. In such circumstances the benefits of the scheme are extended, which would have entitled him to additional salary payment of €6,067. In cases of doubt concerning the sickness classification the scheme provides for reference to the CMO for advice. The CMO is obliged to “take into account all relevant information” in making the investigation. It is submitted that the CMO failed to seek a report from the treating counsellor leading to a flawed investigation and conclusion leading to a breach of s. 5 of the Act.

Respondent’s Submission and Presentation:

The respondent submits that the complainant reported sick and unfit for duty on the 27^th of July 2015 and that he returned to work on the 8^th of January 2016. He was declared to be suffering from Sciatica until the 7^th of September 2015 and thereafter from anxiety/depression. At the request of local management the complainant was referred to the CMO who found him to be temporarily unfit and referred him to an independent specialist advisor. He exceeded the entitlement period (92 days) to full pay and his entitlement was reduced to half pay from the 27^th of October 2015. On the 2^nd of November 2015 the complainant asserted that his absence was as a result of an injury at work arising from the murder of his sister in law in May 2012. In particular he asserted that the source of his stress emanated from his role in his nephew’s arrest on the day of the Funeral of his sister in law. The Divisional Officer sought reports in respect of the assertion in compliance with HQ 43/2014 (the sick pay scheme) and ultimately declared that the claimant’s sickness could not be classified as having arisen from an injury sustained on duty.

The respondent submits that the reduction in the complainant’s pay arose wholly from the provisions of the Public Service Management (Sick Leave) Regulations 2014 and associated terms and conditions (see above). It is accepted that the Divisional Officer does have discretion in the matter however the classification in this case was reasonable in all the circumstances.

Decision:

The cognisable period of complaint in this case is from the 30^th of August 2015 until the 29^th of February 2016.    

Prior to setting out my decision in this matter I would like to acknowledge the fact that it will have been extremely difficult and upsetting for both sides (particularly so for the complainant) to revisit and engage with the profoundly sad and tragic events touched upon in this case.

This matter turns upon the classification of the complainant’s illness under the respondent’s sick pay scheme    in the first instance and in looking at that issue in isolation I would accept the submission of the respondent that it behoves any third party in the appropriate forum to consider whether or not the respondent has acted reasonably in coming to it’s conclusion in all the circumstances. However before addressing that issue I must ask myself whether or not I am permitted to regard that the provisions set out in this enactment provide such an appropriate forum.

I am satisfied that the respondent acted reasonably in this case however it is not for me to conduct an investigation de novo into the specifics leading to the conclusion and classification it arrived at under this Act.

Accordingly I must conclude that the complaint is misconceived and therefore that it is not well founded.

Dated:   28/10/2016