PW15/2015

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

PW15/2015

APPEAL OF:                                                                                                       

HSE West N.A.S.

-appellant               

against the recommendation of the Rights Commissioner in the case of:

Liam Barry   

-respondent

under

PAYMENT OF WAGES ACT 1991

I certify that the Tribunal

(Division of Tribunal)

Chairman:       Dr. A. Courell B.L.

Members:        Mr. D. Morrison

                        Mr T. Gill

heard this appeal at Castlebar on 27th July 2016 and 11th January 2017

Representation:

_______________

Appellant:       Mr. Diarmuid Cunningham, Comyn Kelleher Tobin, Solicitors, 2 George's Quay, Cork

Respondent:    Martina Weir, SIPTU, Moneen Road, Castlebar, Co. Mayo

Background

This case came before the Tribunal by way of an employer appeal of the Rights Commissioner Decision ref: r-144007-pw-14/EOS under the Payment of Wages Act 1991. Hereinafter the respondent will be known as the employee and the appellant the employer.

Preliminary Application

Employer

The employer made the preliminary application that as this is not a deduction from pay the employee is not entitled to any remedy under the Payment of Wages Act 1991. The employee did not work from the 15^th of October 2013 to the 30^th of December 2013 and was not paid for that period. Prior to the 15^th of October the employee had been on paid sick leave with back pain (35 days); the employee worked as a paramedic.

The employee was certified fit to return to work by his GP from the 15^th of October 2013. As the employee had been on long term sick leave (over 20 days) the employer referred him to the Occupational Health doctor. The OC doctor wanted to consult with the employee’s GP to get a full medical history; the employee did not consent to this. Consequently the OC doctor said she was not in a position to make a judgement on his fitness to return to work. The employer believes this was a reasonable request as per the sick scheme and as he did not comply he is not entitled to sick pay. The employee’s contract of employment states that sick pay is discretionary.   It is up to the employee to prove that he had an entitlement to be paid during that period. It is the employer’s belief that he was not entitled to be paid so is therefore disqualified under the Payment of Wages Act.

Employee

The claimant’s GP certified him fit for work and the employer advised him to come to work and attend training on the 15^th of October 2013. He signed in for the training and was then asked to leave as he had to go to the OC doctor.  The employee attended the OC doctor and was happy to consent to release the records on his current sickness but the OC doctor wanted full disclosure of his medical history. This request for a blanket disclosure was unreasonable. The employee lodged a grievance in November 2013; this resulted in him being referred for a 2^nd OC assessment. On the 30^th of December 2013 the employee saw a second OC doctor who deemed him fit for work immediately without full disclosure of his medical records, the employee worked a shift that evening. As there was no basis for the full disclosure of his medical records it was essentially the employer that blocked his return to work and they are therefore liable to pay him.

The employee did not receive the letter of the 24^th of September requesting he attend the OC doctor. This proposed assessment was not mentioned by BC, the employee’s manager when he was discussing the employees work schedule with him. The employee accepts there is a lot of lifting and bending in his role and that the sick pay scheme is discretionary.

The Claimant maintained that the loss of earnings for the period, including overtime shifts is approximately €15,000.

The hearing resumed on the 11^th January 2016.

The Tribunal heard evidence from a witness for the respondent who was the operations resource manager at the time. He explained that he was the employee’s line manager at the time. He was aware that the employee was absent. He phoned the employee and spoke with him. He asked him if he was ok and the employee told him that he was fine. He explained to the employee that he had to go to the occupational health service before he could return to work. The employee told him that he would do so. He told the employee that he was not to attend work/ to return to work on 16^th October. He also informed another person (B) that the employee was not to return t work.

The witness later received a phone call from FH who was an instructor on a manual handling course. FH told him that the employee was insistent on participating in the course. At some point in time in or around 16^th or 17^th October he received a call from a shop steward. He told the shop steward that because the employee had a back injury that he wanted the employee to attend occupational health.

On 17^th October he spoke to the employee who told him that he was unhappy with the way he had been treated the day before, i.e. being asked to leave the manual handling course.   He told him that if he had any concerns to put them in writing.   The witness concluded by confirming that he was clear that on 15^th October that the employee was not to return to work.

Both parties made closing submissions to the Tribunal.

Determination:

The Tribunal has considered all of the oral and documentary evidence, and the submissions of both representatives. The Tribunal considers that the employer acted appropriately in advising the employee that he could not return to work until he was assessed by the occupational health service. However when the employee was assessed on 18^th October 2013, the outcome was inconclusive as the assessing doctor required further information. The employee was subsequently assessed as being fit to return to work by a different doctor on 30^th December 2013.

The Tribunal finds that the employee engaged fully with the occupational health rules insofar as it was reasonable and considers the request for blanket access to his entire medical history to be excessive. In circumstances where the employee co-operated with occupational health insofar as was reasonable, it was unfair of the employer to not sanction the payment of sick leave.  

In this particular case the Tribunal considers sick pay as to be a form of wage.

Accordingly, the employer appeal of the Rights Commissioner decision fails. Accordingly, the Tribunal awards the employee the sum of €7,409.49, this being eleven weeks pay, under the Payment of Wages Act, 1991.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)