Complainant

Respondent

Anonymised Parties

A Care Assistant

A Care Provider

Act

Dispute Reference No.

Date of Receipt

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

CA-00014486-001

26/Sep/2017

The worker is a Care Assistant working with her employer since 1980. On 4 March 2017 she sustained a back injury while at work and was out of work on sick leave.

She returned to work on 2 April 2018 some 9/10 months later.

She is looking for her sick leave to be discounted and/or the “discretionary clause” in the Critical Illness Protocol to be extended to her due to the circumstances that her sick leave resulted from an Occupational injury.

The following is a summary of the worker’s case.

The worker is a Care Assistant working with her employer since 1980. On 4 March 2017 she sustained a back injury while at work and was out on work of sick leave.

As of the end of June 2017 the worker was no longer receiving sick pay and applied for Critical Illness payment, which she was refused by her employer. She returned to work on 2 April 2018 – 9/10 months later. She said that she was without payment of salary for that period. She claims that she is approx. €8,000 in loss because of this situation that she found herself in due to an Occupational injury.

She claims that the employer has discretion to award an extension of paid sick leave to an applicant, as per the employers Critical Illness Protocol, and that she has raised that with the employer but has not got a suitable reply to resolve this dispute and was not directed to a formal grievance procedure thereafter. She is looking for her sick leave to be discounted and/or the discretionary clause in the Scheme be extended due to the fact that her sick leave which she claims resulted from an Occupational injury.

The following is a summary of the employer’s case.

The employer said that the worker was in receipt of her paid sick leave in line with the employer’s current sick leave pay policy. It claims that raising this claim is an attempt by the worker’s trade union to introduce the Critical Illness Protocol in to the employer, which will create a precedent for the employer going forward.

It claims that the worker did apply for sick pay under the Critical Illness Protocol which was considered by the employer but was refused. It said that the worker’s union official was advised of that decision and the employer was subsequently informed that the dispute was to be referred to the WRC for adjudication. It claims that section 5 of the Critical Illness Protocol sets out the grievance procedure of management decisions. The employer said that the grievance procedure was not followed.

It was not in dispute between the parties that the employer has an internal dispute resolution mechanism for addressing grievances and disputes of this very nature. The worker was of the opinion that her grievance was raised with her employer and it went up to senior management and she was not directed to a formal grievance procedure following its decision against her request. The employer is adamant that the grievance procedure is clearly set out in the documentation that the worker is relying upon, and that she has not fully exhausted these internal grievance procedures prior to the referral of the present dispute to the Workplace Relations Commission.

It is well established by the Workplace Relations Commission and the Labour Court that they do not intervene in a dispute under Section 13 of the Industrial Relations Act 1969 until all internal grievance procedures have been fully exhausted. This has clearly not happened in the circumstances of the present dispute.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute. Accordingly, I recommend that the worker exhausts all internal dispute resolution mechanisms for addressing her grievances before considering the further referral of this matter to the Workplace Relations Commission under Section 13 of the Industrial Relations Act 1969.

the Industrial Relations Act - internal grievance procedures not exhausted -