ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001919

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, 1946	CA-00002637-001	16/02/2016

Date of Adjudication Hearing: 15/06/2016

Workplace Relations Commission Adjudication Officer: Joe Donnelly

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).

Complainant’s Submission and Presentation:

The complainant was injured in 3 separate incidents in work in 2013. The complainant was off work sick since November 30th 2013. In 2014 the complainant had to have Left knee replaced in June and his Right knee replaced in October 2014. He attempted to return to work March 8th 2015 and was told because his final cert from his Doctor said light duties that he would have to see a Dr representing the respondent. They refused to allow the complainant back to work at that time. In the mean time he returned to social welfare who suggested for him to sign back on Illness Benefit. The complainant went to see the Dr on behalf of the respondent, who was around 35 miles away and after about 6 weeks from initially trying to return to work, the respondent said as far as their Dr was concerned, the complainant was not fit to return to work because if a stack of pallets fell over he would not be able to move fast enough to get away from the falling pallets and he was a health & Safety Liability/Issue. The respondent asked if the complainant would agree to let them contact his Dr to ask what she meant by light duties. He said he did not have a problem with that as long as they only gave her a copy of his "Contract and Job description", where neither state that his job involves heavy lifting of 70-85kg boxes of goods (he used to scan goods in and offload trailers, using forklifts stand on pallet trucks and printing and labelling pallets etc.) in the warehouse. The forklift driving would get uncomfortable due to the getting on and off forklifts, where some have a step up of around 450mm. The complainant also then tried to return to work on December 14th 2015, and was told that the respondent was still not willing to allow him back to work and he had received an email that said that as he was only cleared for light duties, and none such were available, he would continue on long-term sick leave and could claim state illness benefit. The complainant has come to the conclusion that the respondent is not willing to allow him to go back to work at any cost. He had handed in Final Cert from Doctor, the statement of "continued long-term sick leave" was made by somebody who is not qualified to decide whether he is sick or not. In 2014 the complainant’s job of Warehouse Manager was advertised in the local press, yet he is still employed by them. The respondent has never said there is different type of work, they have never asked if he would be willing to take less pay for a slightly different job, with lighter duties. The complainant has worked a HGV driver for the respondent and 4.5 years as Admin and around 2 years 4 months as Warehouse Manager, 12 years in total and he believes that they are not willing to take him back because he has had the audacity to take out a claim against them for injuries he received.

Respondent’s Submission and Presentation:

The complainant was signed off as unfit to work on 30 November 2013 due to work related incidents.

In March 2015 his doctor confirmed the complainant as fit for work but unable to perform heavy lifting / driving. The complainant was requested to attend an Occupational Health Specialist who stated that he was unfit for work.

The respondent met with the complainant and wrote to his doctor in order to get a better understanding as to the duties the complainant could perform. The doctor advised that the complainant was unfit for work.

The complainant continued to provide sick certificates and in December 2015 there was an attached note stating that he was fit for light duties. The respondent met with the complainant to discuss the situation and requested him to again meet with an Occupational Health Specialist. The complainant refused on the basis that he had referred the dispute to the WRC.

The respondent refutes the allegation that the complainant has been prevented from returning to work. The respondent has been prevented from gathering the information necessary to provide the complainant with light duties.

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.

Section 13 of the Industrial Relations Act, 1969, requires that I make a recommendation to the parties to the dispute.

Recommendation:

The complainant is employed as a warehouse manager by a road transport company. His employment commenced in November 2011 and his gross pay is €576.92 per week.

There is no major dispute in relation to the facts of this case. The complainant went out on sick leave as a result of work related incidents in November 2013. He underwent treatment in this regard including operations on both knees. The final operation was in October 2014. Since March 2015 the complainant has been endeavouring to return to work, albeit that his doctor has specified light duties. There have been meetings between the parties on this point and in March 2015 the complainant attended an Occupational Health Specialist (OCS) who found him unfit to carry out the normal duties of warehouse manager. In December 2015 the complainant’s own doctor certified the complainant as fit for work which excluded heavy duties. A request by the respondent that the complainant attend OCS again for an update was turned down pending the WRC adjudication hearing.

I can quite understand and have great sympathy for the complainant’s desire to return to work and the belief that this would aid his general rehabilitation. On the other hand the respondent has quite legitimate concerns in relation to facilitating this return to work. I therefore recommend that the complainant attend an appointment arranged by the respondent with the Occupational Health Specialist as a first step. I further recommend that a meeting then take place between the parties to discuss the provision of light duties with the view of positively expediting a return to work by the complainant.

Dated: 1^st September 2016