PWD1817

The Complaint was referred to the Workplace Relations Commission on 4 July 2016. The Adjudication Officer issued her decision on 5 April 2017. The Complainant appealed against that decision to this Court on 15 May 2017. When the case came on for hearing before the Court it was adjourned to allow for more detailed submissions from both sides in the case. The matter finally came before the Court on 20 March 2018.

The Complaint

The Complainant states that the Respondent made an unlawful deduction from his wages when it failed to pay him while available for work from 7 March 2016 until he was restored to the payroll on 17 March 2016. He further claims that by treating this period as sick leave, a characterisation he rejects, he was excluded from a proportion of his entitlement to additional hours to which he would otherwise have been entitled under the Annualised Hours scheme in place in the Irish Prison Service.

Background

The Complainant is a prison officer. He was absent from work in 2015 under the care of cardiologist. Due to the level of sick leave he accumulated in the relevant reference period he exhausted his entitlement to paid leave under the scheme.

Under the terms of the Sick Pay Scheme Prison Management may refer an employee to the Chief Medical Officer for an assessment of their capacity to carry out their duties. Prison Management thereafter accepts and follows the advice of the Chief Medical Officer

In this case the office of the Chief Medical Officer assessed the Complainant. On the basis of that assessment Dr Thomas Donnelly wrote to Mr Michael Stenson in the attendance management section of the prison service on 13 January 2016. In relevant part he stated: -

“Mr Sharpe is medically fit to continue working but not driving passenger service vehicles for the moment. I recommend that he is asked to provide me with an up to date medical report from his specialist in two months time (a copy of correspondence from his specialist to his GP at that time should suffice.)”

On receipt of that letter Mr Stenson raised the following query with Dr Donnelly: -

“…In note from it (the letter of 13 January above) that Officer Sharpe is still not recommended for driving duties and this restriction has been in place since early November and may be in place for some time to come.

In view of this, and the intrinsic nature of driving work required in PSEC, can I ask you would you deem Officer Sharpe fir for full duties in a traditional prison environment where driving duties would not be necessary?"

Dr Donnelly replied to this query, by letter dated 21 January 2016, in the following terms:-

“ …In addition to my advise about him not driving PSV vehicles for the next wo months, I think it would be prudent if he were not to undertake high prisoner risk duties but was restricted to lower risk duties for the next two months.”

Mr Stenson forwarded this advice by email dated 17 February 2016 to Assistant Governor (HR) Conor Flynn of the Prison Escort Service. On 18 February Assistant Governor Flynn wrote to the Governors of Mountjoy Prison Training Unit, St Patrick’s Institution, Wheatfield Prison and Cloverhill Prison to ascertain if they could facilitate the Complainant’s return to work with a post in their prison, for a period until such time as he was fit to resume full duties.

In the meantime the Complainant was certified fit to work by his treating General Practitioner and her presented himself for wok on the 11^thFebruary. The officer on duty was unaware of the CMO’s directions in this case and assigned him duties at the Criminal Courts of Justice. This assignment conflicted with the CMO’s directions.

The Complainant availed of parental leave on the 12^thFebruary and was rostered off work on the following two days. He commenced a further period of sick leave on 15^thFebruary that ended on 6^thMarch. He presented for work on the 7^thMarch.

On reporting for work he submitted a fitness for work certificate to the officer on duty that morning. He was assigned to an escort detail to bring a prisoner from the Central Mental Hospital to St Vincent’s Hospital for treatment.

When senior management in the Service became aware that the Complainant had reported for work without clearance from the CMO he was taken off duty. Arrangements were made for the Complainant to report to the CMO to establish whether he was cleared to return to work.

An appointment with the CMO was arranged for 14 March 2016. At that meeting Dr Donnelly reviewed the Complainant’s medical records together with notes from his treating general practitioner and a note from his cardiologist that had been provided to the Complainant in December 2017 but had not been given to the CMO’s office until this appointment on 14March 2016.

Dr Donnolly formed the view that the Complainant was sufficiently recovered to take up full duties. He required the approval of the CMO for that decision. That approval was issued on 16 March 2016.

The Complainant returned to work on 21 March 2016.

Complainant’s Case

The Complainant submits that as he returned to work in February and had been assigned duties his period of absence arising out of his heart condition had ended on that date and no further grounds for preventing him from continuing at work were extant.

He returned to work from a sinus infection on 7 March and was again assigned work. He submits that the decision to send him home was cannot be a period of illness as he had been certified fit for work by his GP. He submits that he had not been examined by the CMO and had not been advised that he required clearance from that department before returning to work. He finally submits that he was not made aware of the restrictions the CMO’s department had placed on the duties he could undertake. He submits that he should not be held culpable for failing to comply with a requirement, to secure clearance from the CMO before returning to work, of which he was not notified.

He submits that the decision to withhold pay from him including his entitlement to additional hours under the annual hours scheme constitutes an infringement of section 5(1) of the Act.

The Respondent submits that the Complainant’s contract of employment contains provisions regarding the manner in which incapacity for work is processed within the Prison Service. It submits that the relevant scheme provides that the CMO can determine an employee’s fitness to undertake the duties of his post. Where the CMO places restrictions on the range of duties an officer can undertake Prison Management is bound by those medical decisions.

It submits that in this case the CMO placed restrictions on the duties that could be undertaken by the Complainant. As the section in which the Complainant was employed required that he undertake such restricted duties it had no option but to seek alternative employment for him within the Service. It submits that it took immediate steps to locate such alternative employment but none was available. It submits that it was continuing with its search when the Complainant returned to work unannounced. It submits that the local officers who assigned work to the Complainant when he reported for work in February and March did so unaware that they were acting in contravention of the CMO’s directives. It submits that this was an oversight and does not amount to a proper return to work within the meaning of the scheme.

It submits that when senior management became aware that the Complainant was at work on both 11 February and 7 March it acted immediately to bring him into line with the terms of the scheme, removed him from duty and instructed him to report to the CMO for assessment. It submits that it arranged an early appointment with the CMO and returned the Complainant to the roster when medically cleared to undertake full duties.

It submits that operating the contractual scheme that regulates the procedure the Complainant must follow when seeking to return to work following an illness cannot amount to an unlawful deduction within the meaning of Section 5(1) of the Act.

It further submits that the terms of the Additional Hours Scheme have been properly applied to the Complainant and the pro-rata adjustment in the hours allocated to him is entirely consistent therewith. It submits that the proper application of the contractual scheme cannot amount to an unlawful deduction within the meaning of section 5(1) of the Act.

The Law

Section 5 of the Act states

• 5.—(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

  (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

  (b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

  (c) in the case of a deduction, the employee has given his prior consent in writing to it.

Part 4 Return to Work Procedures and Processes states at clause 4.3

Officers should not return to work unless they are fit to do so. In cases of long term absences the CMO or treating Doctor must confirm to the Line Manager that the civil servant is fit to resume duties.

Prison Service Attendance Management Policy and Procedures Manual governs the payment of sick pay and procedures to be followed when returning to work following a period of sick leave.

Section 5.8 in relevant part states

Where an officer is certified to return to work following a period of absence, ….., s/he does not need to be routinely cleared to return to work by the CMO and as a general rule officers do not need a fitness to resume certificate. However, in individual cases, where the Governor and or SCS have particular concerns or the CMO has previously indicated that the officer should be referred, then they will be referred to the CMO before a return to work is agreed. In recognition of the fact that officers may be at a financial loss while on long-term sick leave, the SCS Directorate will endeavour to get the officer an early appointment with the CMO and the IPS will provide full pay and allowances to the officer from the date s/he is deemed fit to resume duty by the CMO.

Findings of the Court

It is common case that the CMO in this case had indicated that the Complainant should be referred for further consideration before being allowed return to work. It is also clear that this information was not as widely available within the service as it should have been. It is equally clear that the Complainant was not aware of this requirement.

These are undoubtedly shortcomings in the administration of this case. However, it does not alter the CMO’s indication that the office was not prepared to provide a fitness to resume certificate to the Complainant until it was satisfied that he was fit to resume his duties.

Had the Complainant been notified of this requirement the Court has no doubt that he would have complied with it. However he was not aware of it and he reported for work and was assigned duties in both February and again in March.

The core of the Complainant’s case is that as he was fit for work and had been assigned duties in February the CMO’s requirements were moot. He further claims that as he returned to work in March from a routine sinus infection he was not required to secure clearance from the CMO as the restrictions placed on him related to the coronary disease form which he suffered.

The Court finds no merit in these points.

The Complainant was aware that there was a restriction on his capacity to drive. He was not aware of the other restriction placed on him by the CMO. However that does not avail him in this case. The CMO had placed restrictions on his capacity to work and required to assess him before he was prepared to issue him with a fitness to resume duties certificate. Until he received such clearance his return to work was premature and was not authorised.

The fact that he was assigned work by a duty officer was clearly the result of poor communication within the Service. However it cannot set at naught the CMO’s requirements. A certificate of fitness to resume duties from the CMO was required in this case and until it was issued no officer could over rule that requirement. Errors that arose out of ignorance of this requirement do not undermine the requirement itself.

When Senior Management became aware that the Complainant had been assigned duties on 7 March 2016 it acted immediately to correct the error. As no alternative duties that the Complainant could undertake were available it had no alternative but to put him off duty pending clearance to resume duties by the CMO. It further acted with urgency to arrange a meeting with the CMO and again restored the Complainant to the payroll in accordance with the terms of clause 5.8 of the Attendance Management Policy & Procedure Manual (July 2014).

Accordingly the Court finds that those procedures are included in the Complainant’s contract of employment. It further finds that the Respondent acted in accordance with those procedures and by extension in accordance with the Complainant’s contract of employment.

As the Complainant had not been cleared to be at work by the CMO he had in effect contractually agreed to continue on the sick pay scheme. That scheme provides for graduated payment levels depending on the frequency of absence from work over a given period of time. By requiring the Complainant to remain on the sick pay scheme until he was cleared to return to work by the CMO the Prison Service was applying the terms of the Complainant’s contract of employment. Any loss of income that arose from that application comes with the scope of section 5(1)(b) of the Act. It is a deduction authorised by the Complainant’s contract of employment and accordingly cannot amount to an infringement of clause 5(1) of the Act.

The Court makes a similar finding in relation to the Complainant’s claim that he had an entitlement to additional hours within the meaning of the Additional Hours scheme.

The Court finds that the Complainant was not properly at work on 11 February as he had not been cleared to return to work by the CMO at that time. Accordingly the Court finds that the Complainant’s absence from work was continuous until 7 March 2016.

In these circumstances the Complainant was not eligible under the scheme to access the full additional hours for which he had volunteered. A pro-rata adjustment was permitted under the scheme. On the basis of the evidence before it the Court finds that the pro-rata adjustment implemented in this case was permitted under the scheme. The Court further finds that as the scheme itself is incorporated into the Complainant’s contract of employment compliance with its terms cannot constitute an infringement of clause 5(1) of the Act as it is a protected deduction within the meaning of section 5(1)(b) of the Act.

Determination

The Court determines that the complaints are not well founded. The decision of the Adjudication Officer is affirmed. The appeal is not allowed. The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
LS______________________
11 April 2018Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.