FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : CARLOW COUNTY COUNCIL - AND - A WORKER (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Connolly Worker Member: Mr Shanahan |
1. Appeal of an Adjudication Officer's Decision No. ADJ-00002437
BACKGROUND:
2. This matter was referred to an Adjudication Officer for investigation and Recommendation. On the28th October 2016 the Adjudication Officer issued the following Recommendation:-
- "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 17 of 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 employee appealed the Adjudication Officer’s Recommendation to the Labour Court on the 1st December, 2016 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on the 22nd March, 2017.
UNION’S ARGUMENTS:
3. 1. The Union argues that the Critical Illness Protocol was not followed without fault. It says that it was inherently flawed. The employee should have had a face to face medical assessment.
2. The Union argues that the decision not to grant the employee benefit under the Critical Illness Protocol was based on a medical appointment 6 months previously and that this was unfair.
EMPLOYER’S ARGUMENTS:
4. 1. The Employer says that the procedure was followed in relation to the decision on whether or not to grant benefit under the Critical Illness Protocol and that the management decision on the matter is final.
2.All routes of appeal have been exhausted by the claimant.
DECISION:
This is an appeal by Mr Shane Clarke of an Adjudication Officer’s Recommendation ADJ-00002437 which found against his claim for payment of critical illness benefit under the Critical Illness Protocol.
The Union on behalf of the Claimant complained that the Claimant’s application for access to the extended provisions of the Critical Illness Protocol under the public sector sick leave scheme was refused to him.
The Claimant has been absent on continuous sick leave from 12thSeptember 2014. He was certified as suffering from “stress related illness”. He had exhausted his entitlement to sick pay under the public sector sick leave scheme. He applied for benefit under the Critical Illness Protocol, which would provide him with additional sick pay benefit. This is granted on an exceptional basis only, subject to certain criteria, as set out at clause 2.1.1. of the Protocol:-
- “The employee should ordinarily be under the current or recent clinical care of a consultant wither as an inpatient or an outpatient. This excludes employees attending primarily for report preparation or medico legal purposes.”
Management submitted that every effort was made to address to the Claimant’s application and moreover to accommodate his needs in relation to this return to work. It contended that the intention of the Critical Illness Protocol was to extend paid sick leave only in exceptional circumstances and as the Claimant did not satisfy any of the medical criteria for eligibility, he was not approved for critical illness benefit.
The Union stated that the decision by the Council’s medical advisors (Medmark) was made without a face to face medical assessment and was based on a medical appointment the Claimant had with Medmark in October 2014, six months previously, this it contended was a major procedural flaw in the process.
The Court notes that while Medmark did not have a face to face appointment, in making its assessment of his application, Medmark did have access to and took account of up-to-date reports from the Claimant’s treating consultant. Medmark considered the criteria for entitlement to extended paid sick leave under the Critical Illness Protocol and found that the nature of the Claimant’s medical condition did not have any of the required characteristics to qualify for the benefit.
Having considered the oral and written submissions of both parties the Court is satisfied that the correct procedures were observed in this case and accordingly upholds the Adjudication Officer’s Recommendation and rejects the Claimant’s appeal.
The Court so Decides.
Addendum:
The Court notes that this new public sector sick pay scheme which operates in the Council is a significant change to that which previously existed. The Court observes that clearer communications regarding the specific criteria for operation of the scheme are being considered even as the Court’s hearing is in progress and that such matters are in discussion between the parties.
Signed on behalf of the Labour Court
Caroline Jenkinson
7th April, 2017______________________
CCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ceola Cronin, Court Secretary.