FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE MAYO PCCC (REPRESENTED BY MS MARY FAY B.L. INSTRUCTED BY RONAN DALY JERMYN, SOLICITORS) - AND - A WORKER (REPRESENTED BY MS CATHY MCGRADY B.L. INSTRUCTED BY GILVARRY & ASSOCIATES, SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Ms O'Donnell |
1. Appeal of Adjudication Officer's Decision No: ADJ-00001120
BACKGROUND:
2. The matter before the Court concerns an appeal of an Adjudication Officer’s Recommendation which rejected the Complainant’s claims. The Complainant submitted claims to the Workplace Relations Commission on 16December 2015 under the Employment Equality Acts and the under the Industrial Relations Acts 1946 to 2015. Furthermore, he submitted claims under the Employment Equality Acts and the Payment of Wages Act 1991 on 22 February 2016. The Adjudication Officer issued his decisions and recommendation on 15 July 2016 rejecting his claims. The Complainant appealed the decisions and the recommendation.
At the hearing of the appeals on 6 April 2017, the Complainant’s legal representative informed the Court that all of the appeals under the Employment Equality Acts and the Payment of Wages Act 1991 were being withdrawn and he wished to pursue the appeal under the Industrial Relations Acts.
The claim under the Industrial Relations Acts related to his concerns over his removal from physiotherapy duties and the employer’s efforts to place him in roles at a lower level than he was qualified for when it deemed him unfit to carry out his role as a Senior Physiotherapist. Furthermore, he claimed that he was not paid the appropriate sick pay when he was deemed unfit for work between 21stNovember 2014 and 16th December 2016, when he was on a pension rate of pay (Temporary Rehabilitation Rate).
The Claimant sought an award of compensation for loss of earnings and for his alleged unfair treatment by the Respondent.
DECISION:
The Complainant commenced working as a Senior Physiotherapist with the Respondent assigned to Mayo Community Services in April 2005. He was seriously injured in a car accident on 17 October 2005 and was hospitalised until January 2006 and required extensive rehabilitation for the injuries. The Respondent referred him for assessment in February 2007; he was assessed by Dr. McElligott, Consultant in Rehabilitation Medicine who recommended a return to work on a phased basis. This was confirmed by the Consultant in March 2007 wherein she stated that the Complainant should be gradually reintegrated into a caseload within an acute hospital setting, initially on a part-time basis, and then with another physiotherapist in the physio-gym setting. The Respondent engaged Ms Eilish Duggan, Workright Consultants to carry out a structured return to work plan, a Functional Capacity Evaluation and a Neuropsychological Assessment. She issued her report on 17 October 2007. She recommended assigning the Complainant to a department where he could seek assistance as needed.
He was subsequently referred to HSE's own Occupational Health Doctor, Dr. Sugrue, and a neuropsychological assessment from Dr. Benson Ikueson, Consultant Clinical Psychologist. He returned to work on 13 August 2007 on a phased basis until 26 November 2007, at which point he commenced full duties in Swinford District Hospital (Swinford) and by May 2008 he also worked two days a week, on hand and arm physiotherapy, in Mayo General Hospital (MGH) as the caseload in Swinford was insufficient to occupy him full time and to allow his professional development.
By letter dated 22 August 2008 to the Respondent the Physiotherapy Manager in MGH raised concerns over the Complainant’s fitness to carry out his role, communication, clinical assessment, documentation and use of evidence based practice. She asked for further evaluation of his competence. The Respondent suspended him from practice in MGH pending such an assessment. He remained employed in Swinford during this time.
He was assessed by Ms Annette Shanahan, Specialist Chartered Physiotherapist in Occupational Health & Ergonomics on 15 December 2008.
Following an incident on 4 November 2010 in Swinford, Ms. Canning removed him from physiotherapy duties and sought to allocate non-clinical duties to him until matters could be resolved.
He had another occupational health assessment in December 2010 duringwhich he was informed of the option of retiring on grounds of ill health.
In June 2012 he was examined by Dr. William O'Flynn, HSE Occupational Physician, the report stated"apparently there has been no change in his capacity to perform atalevel expected by and clearly outlined by his manager MsAnne Canning".Dr. O'Flynn requested management to consider offering the Complainant retirement on ill health grounds.
In or about January 2013 the Complainant was assessed again by Dr. McElligott in the National Rehabilitation Unit, in Dun Laoghaire who concluded that he was not currently capable of returning to full independent duties as a full Senior Physiotherapist. By October 2013, having carried out further reviews Dr. McElligott and Dr Sugrue concluded that he was not likely to be fit for the role of a physiotherapist and that his extensive rehabilitation was unsuccessful.
From November 2010 until 3rdJune 2014 the Complainant was paid a Senior Physiotherapist’s salary, even though he was attending at work but not carrying out the role of a Senior Physiotherapist. On 19 February 2014, in response to IMPACT’s concerns regarding the offer of a role which was not commensurate with his current grade, the Respondent provided details of options open to him, including a trial of a Clerical Officer position on offer to him, retirement on the grounds of ill health or a targeted redundancy. IMPACT sought details of the redundancy package and was supplied with the relevant details on 21 March 2014. The option to work as a Clerical Officer was to commence in June 2014. The Complainant wrote to IMPACT on 21 March 2014 stating that he was accepting the assignment as Clerical Officer under protest and he intended to bring a claim under the Acts. The Complainant went out on sick leave suffering from stress from June 2014.
On 27 August 2014 the Complainant’s sick pay was reduced to half pay. Two days later he was asked to sign an occupational health referral form by 24 September 2014 otherwise his sick pay entitlement would be terminated. On 2ndOctober 2014, the Complainant’s solicitors wrote to the Respondent alleging that the Complainant was being forced to sign the document, which it claimed was a form of penalisation and indicated that the Complainant refused to sign the referral form as it incorrectly described his job as Clerical Officer. By letter dated 17 October 2014 the Respondent pointed out that the Complainant had not raised a grievance against the Respondent and that if he wished to do so he could take a grievance through its internal procedures. Furthermore it offered to amend the Occupational Health Referral Form. The Complainant’s sick pay ceased with effect from that date.
On 4 March 2015 at a meeting between the Respondent, the Complainant and his Solicitor it was agreed that the Complainant would undertake a further occupational health assessment to cover both his absence from work in respect of stress as well as his ability to carry out physiotherapy functions solely in respect of hand and arm care. The Respondent confirmed that, dependant on the findings of the assessment; it would agree to consider confining the Complainant to these two areas of practice. In the event that the assessment was positive, it was agreed that a further period of assessment would be needed while the Complainant actually carried out the work. Furthermore, in the event that the assessment was negative, the Complainant’s Solicitors had pointed out that the Complainant was far too qualified for a grade 3 clerical post and should be offered an Administrative post at a much higher level. On that basis the Complainant agreed at the meeting that he would attend for the assessment.
The assessment was carried out by Dr Haji Muhammad on 29 October 2015 who found that his health status was stable and recommended that he was medically fit for "the stated post". Clarification of this assessment was sought by the Respondent and Dr Muhammad’s clarification was given on 16 November 2015. He confirmed that the Complainant was deemed fit for "clerical duties". In relation to his physiotherapy duties, Dr Muhammad advised management to consider onsite assessment with work related tasks. The Respondent informed the Complainant of this clarification on 17 December 2015 and indicated that it would proceed to identify an appropriate professional to carry out the onsite assessment. In the meantime as he was deemed fit to undertake clerical duties, the Respondent suggested that he undertake a trial period from 4 January 2016 at his Senior Physiotherapist salary. On 4 January 2016, the Complainant submitted sick certificates. He was advised that as he had been assessed fit for clerical duties, he was now been referred for a further assessment. An assessment was carried out by Dr Joseph Sim, Occupational Physician on 26 January 2016. He made a number of recommendations:-
- i.he is medically fit to resume a clerical role and to engage with management on a job description for the role
ii.it was not possible to state that he was fit for a physiotherapy role
iii.allow him a 4-week trial period of “on-the-job/on-site assessment” to determine if he is capable of performing the tasks required of a physiotherapist.
On 1stMarch 2016, the Respondent wrote to the Complainant informing him of its plans to organise the recommended trial period.
Position of the Parties
- The Complainant:
Following his accident and his return to duties on 26 November 2007, the Complainant maintained that the Respondent has refused to make any or any appropriate reasonable accommodation in respect of his duties notwithstanding the fact that he, having made a remarkable and significant recovery, could carry out the majority of his previous duties. Indeed, rather than make such accommodations it demoted him instead and forced him into a position outside of physiotherapy which caused him great stress and humiliation.
The Complainant maintained that the Respondent actively attempted to demote him to an entry level clerical position in March 2014. This he maintained resulted in a humiliation situation for him and a de-skilling of his physiotherapy skills.
The Complainant submitted that the Respondent refused him his contractual sick pay while he was on sick leave which resulted in significant loss of earnings.
- The Respondent:
The Respondent submitted that it acted lawfully, fairly and in compliance with all its obligations to the Complainant. The Respondent has sought and continues to seek to accommodate the Complainant in his return to work. Its concerns regarding his return to the role of physiotherapist related primarily to health and safety matters. It stated that at all times it followed the advices of its Occupational Health physicians and it complied with its Policies and Procedure. The Respondent disputed the Complainant’s contention that it failed to afford him reasonable accommodation and permit him to return to work. In fact, it said that it was spending considerable time, money and resources liaising with professionals to ascertain precisely what accommodations the Complainant required to render him fit to safely return to work as a Senior Physiotherapist with the Respondent.
The Respondent said that an incident occurred in Swinford District Hospital on 4 November 2010 which gave rise to serious concerns regarding the Complainant’s clinical judgment and raised capabilities issues. It raised very significant health and safety concerns for both the Complainant himself and patients such that Ms. Canning requested him to refrain from carrying out any clinical duties and he was accommodated with nonclinical duties until matters could be resolved.
The Respondent stated that the Complainant had received his full sick pay entitlements under the sick pay scheme.
Findings and Conclusions of the Court
The Court has considered the extensive submissions made by both parties on this case. Having carefully examined all the facts, the Court is satisfied that the Respondent went to great lengths to accommodate the Complainant in his role following his unfortunate accident, while at the same time complying with its obligations to both his safety and wellbeing and that of its users. This process included having tests and assessments carried out at considerable expense to the Respondent. The Court fully accepts that in order to permit the Complainant to carry out his duties as a Senior Physiotherapist it was necessary to ensure he was deemed fit to do so by those with such expertise. Where such assurances were not forthcoming, it was not unreasonable for the Respondent to assign him to alternative duties. The Court is satisfied that the Respondent acted with appropriate haste in the circumstances.
At this point the parties confirmed for the Court that the Complainant has returned to work since January 2017 and is currently undergoing the “on-the-job/on-site assessment” trial period offered to him in January 2016. The pension rate was extended continued until he resumed duties in January 2017.
The Court is satisfied that the Complainant was paid in accordance with the Respondent’s sick pay scheme for the duration of the periods he was not deemed fit to return to work.
Therefore the Court does not recommend in favour of the Complainant’s claims and rejects his appeal.
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
24 April 2017______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Michael Neville, Court Secretary.