ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002437

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

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00003302-001	21/03/2016

Date of Adjudication Hearing: 20/09/2016

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and or Section 13 of the Industrial Relations Act, 1969 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).

Summary of Complainant’s Submission and Presentation:

The dispute is over the refusal of Respondent Co. Council to grant the Complainant Critical Illness Status. (CIS). In a major reform of Public Service Sick Leave and Pay arrangements in 2014 the concept of a Critical Illness Protocol was introduced. Essentially this was to cover situations where a Public Servant, being seriously ill, had exhausted the new reduced sick leave entitlements. S.I. No. 124 0f 2014 refers. The Complainant having gone sick in September 2014 had by January 2015 exhausted his entitlements to sick pay. IMPACT then applied to have him classified as suitable for the CIS Scheme. Correspondence followed and the Council declined to accept the Complainant as suitable. Various Medical Reports were commissioned and a final Appeal decision, finding against the Complaint was communicated to IMPACT. The Complainant case was that the CIP allowed for a considerable degree of local management discretion in making decision regard the CIP. The Co. Council had failed to use its allowed discretion in favour of the Complainant but had stuck overly rigidly to a narrow interpretation of the Regulations. The union pointed to case Study 5 in the Protocol as being of particular relevance and applicability to the Complainant’s case. In supplementary material supplied post the hearing details of a Respondent decision granting the CIP to another staff member were supplied

Summary of Respondent’s Submission and Presentation:

Section 3 of the Protocol “Decision to Award” covered this situation at hand

There are two avenues of Appeal to any decision, Medical and Administrative. The Complainant availed of both, supported by his Union.

The final Appeal decision by the Respondent Council had considered all the facts and the background and had to be regarded as a Final Decision.

The only area of review open to the AO was a ruling on whether or not the Respondent Council had correctly implanted the terms of the Protocol.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Issues for Decision:

Was S.I. No 124 of 2014 and the Updated CIP (post LCR 20667) implemented correctly by the Respondent Co.Council
Under the terms of Section 3.1 and 3.2 (quoted above) was the decision not to grant the CIP Status to the Complainant flawed and unfair. ?

Legislation involved and requirements of legislation:

Industrial Relations Act, 1969

Decision:

The best Authority on this case is found in a close reading of LCR 20667 and the preceding LCR20335.

The Complainant suffered from an illness that was one of the three specifically mentioned in LCR20667. Reading the Court Recommendation in relation to Item 3 the complainant’s illness, the Court effectively differentiated between illness of a severity requiring Hospitalisation and those that do not.

The Court was happy that

“(ii) There is management discretion available for cases that may not meet the specific criteria for inclusion under the CIP”

I took this to mean that the Court was happy to let local Management decide on a case by case basis the applications that came under this section. The Public Services Committee of the ICTU were the other party to the Recommendation which it accepted.

Referring to the two questions set out above

In relation to Question 1 I found that the respondent Co. Council implemented SI. No 124 of 2014 correctly and followed all procedures. No fault attached here.

In relation to Question 2 I found that the Respondent carried out detailed reviews both medical and administrative. At the oral hearing their replies to questioning on the Administrative factors underlying a review were a bit woolly and unclear.

However the final appeal decision letter of the 17of June 2015 written by the Director of Services & Human resources was a careful and considered decision if I thought somewhat overly reliant on the strict medical evidence. In addition the Complaint was a long standing employee and all his particular personal circumstances would have been well known to all relevant Council staff.

Taking all these balancing factors into account I could not find any major faults with the Discretionary Appeal process or the decision as written.

The fact that another decision cited by IMPACT and by the same Respondent, had gone in the other Employees favour in my view simply illustrates that discretion has to be discretionary with cases judged on their merits and not to a fixed formula.

However noting the Medical Reports of the nature of the Complainant’s illness I recommend that if the need to call upon the CIP should arise again in the future this current decision against him should have no bearing on any future decisions involving this Complainant.

In conclusion and putting it bluntly the Labour Court and the negotiating bodies were happy to allow local Management discretion. It was exercised in this case and I can find no reason to question it further in this instance.

Dated: 28/10/2016