Complainant

Respondent

Anonymised Parties

Staff Officer

A County Council

Representatives

Mike Mc Namara IMPACT Official Louise Ryan , Branch Official

Eamon Hunt ,LGMA

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00006723-001

31/08/2016

The claimant is a County Council employee .She was on sick leave from 29 January 2016 to 2 August 2016. She claimed that she was denied an extension to her sick leave under the Critical Illness protocol and sought the application of the scheme. The claim was received by the WRC on 31 August 2016.

The claimant commenced work with the County Council on 18 September, 1995.During 2015, the claimant began to experience severe back pain .This resulted in a diagnosis of a prolapsed disc at two levels, requiring urgent surgical intervention ,after which she spent two days in hospital .

The complainant commenced a rehabilitative programme of Physiotherapy, but had a set back causing her to request an extension of her sick leave (full pay) on 15 April 2016.

On 25 April, the Council wrote to the claimant outlining her options under the provisions of the Critical Illness Protocol.

(1)    A File review

(2)    A review by way of personal medical examination at a cost of 250 euro plus vat ( 50:50 contribution by staff and employer ,to be recouped if appeal was successful )

The claimant was devastated and elected for the medical review .The appointment with an Occupational Health Specialist was scheduled for 11 May, 2016.

The Council wrote to the claimant on 19 May advising that the medical report had indicated that her condition did not meet the criteria for critical illness .She was informed of the appeals mechanism to the Director of Services.

Her Occupational Health   medical report of 16 May stated :

“Regretfully, I must conclude that (the claimant) does not meet the critical illness protocol medical criteria for extended sick pay. However, in view of the genuineness of her condition , her good work record and good sick leave record, I am happy to support a management decision to award discretionary pay due to exceptional circumstances “

On July 1st the Union submitted a request to the HR Officer to make a case to the CEO for a discretionary application of the illness protocol, given the exceptional circumstances .The Council advised the claimant she could appeal to Mr A ( Director of Corporate Services and Human Resources ) .The appeal was lodged on July 4,2016.

Mr A wrote to the claimant on 18 July refusing the appeal .He stated that the Council was unable to apply the exceptional circumstances to the claim and he apologised for this.

The Union gave a background on the changes to the claimant’s sick leave scheme in 2014.

They submitted that the claimant had exhausted her sick leave (full pay) by April 2016 and relied on half pay.

The Union contended that Management had not exercised the discretion permitted in the Critical Illness Protocol , where they were to particularly consider :

1 The Individuals sick leave record

2 The potential impact of an early return on the workplace efficiency and effectiveness

The Union argued that the Council had not applied sufficient weighting to the letter from the Occupational Health specialist in support of the claimant and was an overly administrative process deficient in a duty of care.

The Union sought that the Adjudicator make findings in favour of the claimant :

1 Find that the Council did not exercise their discretionary powers with due care and reasonableness.

2 That the claimant’s circumstances at the time of her application for Critical Illness Protocol were in the nature of exceptional circumstances.

3 Make an award of compensation

4 Make a recommendation re-instating the claimant’s entitlement to 12 weeks @half pay which she utilised on being denied access to the Critical Illness Protocol.

The respondent rejected the claim .The background to the case presented by the respondent was at one with the claimant in terms of the dateline of the sick leave at the centre of the case .

The respondent arranged for the claimant to attend the Councils Occupational Health Physician on March 21, 2016.Dr OH reported that the claimant would remain on sick leave until in or around the end of April , he also advised that she would not be eligible for Critical Illness Protocol .

This was followed by the claimants application for an extension of her sick leave on 19 April, 2016.This was refused on foot of the Occupational Health report .The respondent offered an appeal to the claimant, which was actioned on April 29, 2016.

The Independent Medical assessment advised that the claimant did not meet with the requirements of the Critical illness Protocol .The claimant appealed this decision on 8 July 2016.The Director of Services reviewed the file and he issued his decision on 18 July ,not to grant access to the Critical Illness Protocol .

The respondent submitted a brief background on the evolution of the revised sick leave in the public service as set out in Statutory Instrument No.124/2014.The Labour Court Recommendations, LCR 20335 and LCR 20667 were referred in the context of clarifications which followed the inauguration of the scheme.

The respondent submitted that granting of Critical Illness leave is on an exceptional basis only in accordance with paragraph 2 of the Protocol.

The Council hold the final decision making responsibility for the scheme .The scheme provides for a

1 Medical Appeal

2 Administrative Appeal

The claimant availed   of both appeals

1 In the claimant’s medical appeal, the Independent Occupational Health Specialist upheld the Councils own Occupational Health Physicians report not to grant Critical Illness Protocol.

2 In the administrative appeal, the appeal was undertaken by the Director of Services, having regard for the provisions of the sick leave regulations, the critical illness protocol and all provisions in relation to granting or otherwise of additional sick leave on a discretionary basis.

The decision not to grant the extended provisions under Critical Illness Protocol was upheld on administrative grounds.

This respondent argued that the process had now been exhausted and submitted that it was not up to the Adjudicator to re-examine medical evidence but rather to make a finding on whether or not the process was correctly utilised by the Council.

The respondent contended that they had done all in their power to assist the claimant in relation to her return to work, by means of a full work station assessment of all additional supports. In addition, the Council made every effort to address the question of access to the exceptional extended provisions.

I have listened carefully to both parties well presented cases. I have considered both parties written submissions .Section 13 provides that I investigate the dispute and make a recommendation to the parties.

Critical Illness or Injury: Sick leave provisions are detailed in S1 124/2014, and, incorporated into an updated Protocol on Critical Illness on 21 January 2014.

Section 12(1)(b) Sick leave provisions are detailed in Part 4 of the Statutory Instrument:

This part applies to a case where the administrator determines-

(b) Notwithstanding the absence of any of the foregoing matters being so evidenced in writing (CIP), that the exceptional circumstances relating to an illness, injury or condition of the relevant person warrant the application of this Part to the person.

This confers the authority on Management for the decision making with regard to the discretionary element of CIP.

Section 3.2 of the Critical Illness Protocol details the provision for Management to still make a decision to award the CIP in exceptional circumstances through the modicum of Section 3.3.

“ Management should in particular consider the following :”

Sick Leave Record

Potential impact of an early return on workplace efficiency and effectiveness

It has not been possible to make an accommodation of return to work of a person with a disability related illness or condition .Management should also confer with Occupational Health Physician in such cases.

Both parties in this case drew attention to current live analogous cases before the WRC and the Labour Court with regard to the application of discretionary sick pay. It is clearly a live issue .In response to my questions; the Council confirmed that to the best of their knowledge, the discretionary element of CIP had not been granted to any staff member since the scheme was launched. Budgetary provision was permitted, but not specifically detailed as CIP budget.

Both parties accepted that the claimant was solely focussed on securing the CIP on a discretionary basis following the Occupational Health Specialist Report on 16 May 2016.

I have considered the sequence of events following the distribution of this report to the parties .I find that a lack of definition of just what constitutes” exceptional circumstances” in the case of this discretionary award to be concerning

There is a clear protocol of defined objective criteria to be applied in the case of Medical Critical Illness Protocol. I could not establish a reciprocal arrangement in the Discretionary scheme .Instead there was a loose reference to the factors to be considered on sick leave record, which was ruled out on this occasion by the Councils Advisors.

I was interested in the format of the decision making process and established that it was a desk review completed by the Director of Services, who was not in attendance at the hearing ,based on the appeal submitted on 4 July , 2016. It incorporated :

1 Claimants letter of 15 April , 2016

2 Two Occupational Health Reports.

3 Possible Exceptional Circumstances, Section 3.3 of CIP.

On 18 July , 2016,the refusal to grant the appeal was advised by the Councils Advisors on the grounds that

“ having a good sick leave record in the past or promptly returning to work does not constitute exceptional circumstances “

I found that the appeal was hampered by a lack of definition of exceptional circumstances. I took some guidance from Section 5 .1 of CIP on

Appeal of Management Decision

The Management decision may be appealed using the Grievance Procedure in the Civil Service .

I note that the cornerstone of fair procedures in any Grievance Procedure centres on the

1 Right to be heard

2 Right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances.

(Code of Practice on Grievance and Disciplinary Procedures, (Declaration) Order, 2000.)

S.I 146/2000

I have found that there was an “Inequality of arms “in relation to the appeal.

The Occupational Health Specialist issued an endorsement of support for a discretionary payment for the claimant on 16 May, 2016. While the appeal report mentions the medical reports. It is silent on the comments post scripted to the medical report in support of the discretionary payment .It does not appear that the Doctor was called on during the decision making period of the appeal , i.e. July 2016 .

There was no provision for representation during the appeal. The claimant, in my view deserved an opportunity to set out her claim for the discretionary payment and be heard on it. In the absence of this, it is unclear how the “discretion “was exercised or measured by the Council.

Having to rely on a reduced sick leave entitlement is an unenviable position for any employee , I am satisfied that the claimant struggled financially during this period   of January to August 2016.The CIP was the sole contingency position open to her at her employment and I accept her reports of her devastation in the face of the refusal .

On the other hand, I can also understand the difficulties faced by the respondent in addressing a claim for a discretionary payment .It seemed to me that the Council did not have before it an adequate road map or rules for progression. This resulted in an inadvertent fettered access to the scheme as demonstrated by the lack of a positive precedential decision to grant the discretionary payment since the scheme was inaugurated at the Council and nationally in 2014.

This can hardly have been the intention of the draftspersons of Section 12(1) (b) of the Scheme. It is important that discretionary decisions are open to review and audit in any administrative scheme, both the positive and negative decisions. I note that Case 5 of the Test cases outlined in the CIP provided for a consideration of application of the claimants sick leave record, when the medical criteria was not 100% satisfied.

In the instant case, I note that this consideration was canvassed against by the Council . It was accepted by the parties that the claimant had a very satisfactory record of low sick leave .

In all the circumstances of the case, I found that the management discretionary decision making on the appeal was an incomplete exercise, lacking in the “full picture “. The discretionary payment is clearly meant to be made available through the prism of “exceptional circumstances”, yet I found insufficient guidance on the parameters of these circumstances .It may be something which needs to be reflected on at sectoral or national level.

Based on the evidence before me , I recommend that the justice of the case determines that the claimant should be granted the Critical Illness Protocol( Discretionary payment ) on foot of

1 Occupational Health support for the payment.

2 Inconsistent approaches on consideration of sick leave record.

3 Personal Circumstances not heard on appeal.

4 The lack of adherence to the protections provided in the Code of Practice on Grievance Procedures

5 The negative impact of the decision on the claimant , where her sick leave had eroded until 2020 .

I recommend that the respondent engages with the claimant and her representative within a four week period to make the necessary adjustments to the claimant’s sick leave record accordingly.

I also recommend that the Council secures national/sectoral clarification on the application of the “exceptional circumstances “clause so as to formally incorporate the principles of the Grievance Procedure.

Critical Illness Protocol /Sick leave