Complainant

Respondent

Anonymised Parties

An administrative worker

A public sector body

Representatives

IMPACT Trade Union

Industrial Relations Officer

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00011555-001

24/05/2017

The complainant was on sick leave for a considerable period of time. She was certified fit to return to work in November 2016. The respondent did not put her back on payroll until June 2017.

The complainant went off work on 13th November 2013 for surgery on her back. During her prolonged absence, she complied fully with the respondent’s sick leave policy including requests to attend Occupational Health appointments.   Following one such visit in October 2016 the consultant recommended that the complainant return to work on a phased basis during the week commencing 7th November 2016.   The referring manager of the respondent wrote to the consultant on 26th October 2016 stating that there was no vacant position at that time. No suitable position was offered to the complainant until June 2017. The claim is for the difference between what the claimant received in support and what she would have received if she had been reinstated in November 2016.

The union is seeking application of a whole-time rate of pay to the complainant from 7th Nov 2016 until 9th July 2017 (244 calendar days) in circumstances where she was not fit to resume whole-time duties. Due to the length of her absence the position which she had vacated had been filled by someone else. The respondent sent emails to approx. 7 units seeking a position for the complainant. One of these was considered a possibility but was declined by the complainant in March 2017.

There are two issues to be considered in this dispute; firstly, if the complainant had an entitlement to return to her original post and; secondly, was there an obligation on the respondent to offer her a post at the time she was fit to return to work.

The complainant was a Grade 111, Clerical Officer, which is a generic administrative grade within the respondent’s sector. Staff at that level are interchangeable and may be assigned by the employer to different sections. It would be unreasonable to expect an employer to hold the particular post an employee had held prior to going on sick leave open for a three year period provided that an alternative could be found when that employee did return. I therefore do not believe that the complainant should have had an entitlement to return to that specific post.

At the hearing the respondent confirmed that there were a number of vacancies at Grade 111 level during the period between November 2016 and June 2017 and that the relevant managers had been approached to see if they would take the complainant. In all but one case the managers declined. In relation to the one area which had indicated that they could facilitate the employment of the complainant, this was a considerable distance from her original employment location and she declined that offer. I note that the respondent appears to have accepted that she was entitled to decline and did not pursue the matter further.

In relation to the other vacancies at Grade 111 level, there may be any number of reasons why an individual manager may not wish to have a particular member of staff assigned to his or her functional area. It is of course desirable that an attempt be made to accommodate these wishes but not to the extent that the employee is denied employment to which they have a contractual entitlement. In this instance the complainant’s contract of employment remained in place throughout the period of sick leave and when the Occupational Health Specialist – nominated by the respondent – certified her fit to return to work she had a duty to do so. Similarly, at that point the respondent had a duty to pay her.

I recommend that the respondent pay the complainant €9,500 as full and final compensation for the unfairness of its treatment to her, which sum, not being an award of wages is not subject to tax.

Entitlement to return to work after illness