ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003449

Complaint/Dispute for Resolution:

Date of Adjudication Hearing: 10/03/2017

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure: 

In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaint/dispute to me by the Director General, I inquired into the complaint/dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint/dispute.

Complainant’s Submission and Presentation:

The complaint under the Payment of Wages Act, 1991 was withdrawn at the hearing.

The complainant, who had eight years service with the respondent but who had since left her employment with them was seeking payment of her wages for a period when she had been certified as fit to return to work, but did not wish to because it would require her to work with a line manager who was the subject of a grievance she had submitted.

Following an incident in October she submitted a formal grievance in February 2016. On March 2^nd she was certified as fit to return to work, but this certification was given subject to her grievance being addressed.

She says she sought to be redeployed to a location away from the respondent named in her grievance or alternatively put on paid administrative leave. This latter request was refused. The request for redeployment was not made formally.

An independent third party neutral was appointed to process the grievance as the company HR partner was named in the grievance. One meeting was held on April 13^th.

However, despite efforts to agree an amicable solution the matter remained unresolved and the complainant resigned her position on June 19^th2016.

Respondent’s Submission and Presentation:

The respondent says that it was willing at all times to process the complainant’s grievance in line with its procedures. The initial delay was attributable to the late identification of the respondent’s HR partner as a party to the grievance, and the need to appoint an external neutral.

The company made it clear by email to the complainant April 4^th that it would not facilitate the complainant with paid administrative leave and it has never provided this option in the past.

It was also not made clear to the respondent that the medical certification in relation to the complainant’s return to work was conditional in any way.

Findings and Conclusions

The complainant’s case is based on her contention that she was available to return to work from early March (although her return to work certificate dated March 1^st only reached the respondent on March 14^th) but was unable to do so because it would have involved being in proximity to the respondent in her grievance, then a liability falls on the respondent to pay her wages.

It was accepted at the hearing that the complainant had not made this clear to the respondent who was obviously unaware of it.

A clear obligation fell on her to do so. The respondent would have had other options to accommodate her return to work had it been aware that this condition existed, such as redeploying her to another work location.

It is not uncommon to see medical practitioners attaching conditions to a person’s fitness to return to work related to the processing of a grievance such as happened in this case.

Such conditional medical certification may not be very helpful. How a medical practitioner can assess the contribution and impact of a HR process on a person’s health at some unspecified time in the future, which has yet to be commenced and about which they may have very limited information is not too clear.

It might be preferable if, in such circumstances certification was confined to the simple question as to whether an employee is fit to return to work or not, having regard to the known circumstances of that return to work i.e. she is either fit or not fit.

In any event the complainant failed to give a clear statement to her employer about her position and the nature of the medical advice she had been given.

But one option open to the employer, had it known of the medical opinion, would have been to facilitate a return to work accompanied by protective measures and it is not a matter for the employee to decide simply that she will not return to work, without putting her employer in full possession of all the facts.

She made no complaint about the rejection of her claim for payment (save to the third party neutral who had no jurisdiction to act on it).

A good case for payment may arise in circumstances where a complainant is unambiguously certified as fit to return to work and the employer unreasonably refuses to permit it.

That is far from the position in this case and in all the circumstances her claim is without merit and must fail.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint/dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.

Complaint CA-00005028-001 was withdrawn at the hearing.

I do not uphold Complaint CA-00005028-002 and it is dismissed.

Dated:   4^th May 2017