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-00016316-001

14/12/2017

The Complainant was working for the Respondent for 15 years. He was on certified sick leave when he was seen using a quod bike beside the Respondent’s premises. On his return to work he was disciplined and the complaint is that the sanction imposed on the Complainant was too severe.

1.       The Complainant worked as a production operator for the Respondent since 2003

2.       He was a shop steward.

3.       He was certified as being unfit for work due to a back injury for the period 16.10.17 until 30.10.17. This was for acute lumbar disc.

4.       During this period of work absence, during which he was paid under the Respondent sick pay scheme, unknown to him, he was witnessed, by a manager, using a quod bike beside the Respondent premises

5.       On his return to work he was requested to attend a disciplinary meeting that had followed an investigation that he had not been party to.

6.       At the disciplinary meeting on 15 November 2017, the Complainant accepted that he had used the quod bike on one occasion. He explained the circumstances as being that he was at home doing nothing and he got a phone call from a local mechanic who was servicing his son’s quod bike. The quod bike needed to be collected and the mechanic needed to be paid.

7.       He felt able to go an collect the quod bike and did so. His back was bad to take time off work but this does not mean that he is physically unable to do anything. The pain comes and goes and when he has taken the medication that he was prescribed, the pain goes away.

8.       This does not mean that he would be able to work because the nature of his work is standing in one place on a factory line for long periods of time; it is this that exacerbates the back complaint, but sitting in one place is similarly bad.

9.       He was encouraged by his doctor to move about and he did not see that using the quod bike would be bad for his back as you move when you use it and it is not overly physical.

10.   What he accepted was inappropriate was the impression that this might give to other workers. He accepted that his actions may have given the impression to co-workers and especially those who were more junior to him that he was flouting the sick pay scheme, but he did not intend that. For that he was sorry and was happy to accept a sanction for that. However, the actions themselves were not in any way a deliberate attempt to flout the sick pay scheme.

11.   He accepted too that his position of a shop steward meant that he was a guardian of the sick pay scheme that had been agreed between management and trade unions, and therefore his actions in that regard were not adequately careful.

12.   The finding was that the Complainant had been guilty of serious misconduct and was sanctioned with a Final Written Warning and a banning from claiming under the Sick Pay Scheme for 3 years was tantamount to making a finding that he deliberately took sick leave, when he was not sick, which is not the case.

13.   Even if the Company was to view his actions adversely they could not deny that he was on medication which would have prevented him from working with factory machinery. As he was certified by a doctor and had attended a consultant orthopaedic surgeon who had confirmed a lumbar disc problem and medication was prescribed, which the Complainant was taking he could not have attended work during this period for that reason alone. For that reason, the finding of serious misconduct and the sanctions imposed were too severe.

14.   He seeks that the finding and the sanctions be lifted and that he recieve compensation

1.       The Respondent is a significant employer in the northern half of the country. It employs 500 employees in the dairy processing business in 15 counties, 250 of which are at the processing site in question.

2.       It has a generous sick pay scheme that has been agreed with the trade union. This allows full pay for 6 weeks and 75% pay for the following 6 weeks. This sick pay scheme is generous in terms of what other employers provide and the terms of it must be adhered to strictly. If there is any flouting of the terms of the scheme or taking time off when an employee is able for work then this undermines the entire operation of the scheme

3.       The disciplinary hearing was conducted by the Financial Controller of the Company. It is a known fact that a significant number of the employees of the Respondent are part-time or hobby farmers. They often use quod bikes to assist in this work.

4.       The Complainant had said to his line manager, when explaining why he required sick leave, that his consultant said that he could end up in a wheel chair if he didn’t take the time off. From this the Respondent considered that the Complainant’s back was acutely bad and required sick leave. It was the Respondent’s understanding that the Complainant would recuperate at home in a sedentary way because his back condition was so acutely bad.

5.       At the disciplinary meeting the Complainant did not deny using the quod bike on 19 October 2017. This admission was entirely at odds with the description of his back injury given prior to taking the sick leave.

6.       The Financial Controller issued a decision on 17 November 2017. In it he finds that this was a serious matter that could be a dismissing offence. Based on the admissions of the Complainant and the fact that he acknowledged poor judgment on his part, the Respondent found that an act of serious misconduct had occurred but based on the Complainant’s long service, the sanction imposed would be less than dismissal. Instead he imposed a sanction of Final Written Warning and banning from being able to claim under the Respondent Sick Pay scheme for 3 years.

7.       This finding and sanction are reasonable based on the facts, the admissions and the seriousness of the offence.

I find that the decision maker and the appeals officer failed to adequately take into account the secondary argument raised by the Complainant in the disciplinary meeting, namely that while he was certified as unfit based on an acute lumbar condition that he was also unable to work because the prescription medication for his back would have prevented him from safely operating machinery. Therefore, even if it were the case that the Respondent suspected that the Complainant was making up or was exaggerating his injuries, he had been certified by a doctor as being unfit and he was on prescription medication which prevented him from performing his job of operating machinery.

The Respondent without conducting its own medical examination or without even obtaining the opinion of a doctor is not qualified to take a view as to whether the actions of the Complainant, in using a quod bike for the short time that they saw him do so, was medically inadvisable or not. It may form a view that, in the event that, the Complainant denied using the bike, that he was untrustworthy as sometimes occurs in these cases. However, he did not so deny. He accepted, at all times, that he used the bike and there is no evidence to contra indicate that this would have worsened the Complainant’s back condition. A medical opinion that any physical activity at all would have impeded the Complainant recovery, has not been made available and without it, it is not reasonable for the Respondent to form this view.

However, the Complainant in conspicuously using the bike beside his place of work could and did give the impression that he was claiming to be unfit when he was not. This, given his role of leadership within the workforce (he was a shop steward) was ill advised and justified a lesser sanction being imposed. Alternatively he could have contacted his manager on the phone to advise them that he was about to do this job but that it was within the advice of what his doctor had told him was acceptable exercise.

Regarding the more serious finding there is no evidence to suggest that his use of the quod bike was an activity contra-indicated by his doctor or any doctor. Often doctors will encourage some degree of physical activity to improve a back condition, whether his quod bike activity might or might not have fallen into this type of activity is unclear. This is a judgement that a doctor should make and as no such evidence is available I do not accept that use of the bike as described in the minutes was evidence that the Complainant was fraudulently invoking the Respondent sick pay policy. I take into account as relevant that the Complainant had been working with the Respondent 14 years and during that time was not disciplined nor did he give any reason that he was not to be trusted.

Indeed, the fact that the Complainant’s actions were so conspicuous and within eye sight of his managers that, in the absence of evidence of any darker motive, it is more likely that his explanation that he did not regard this to be an activity which was in breach of the sick pay scheme was actually the case.

In respect of complaint no CA00016316-001, I recommend that the finding that the Complainant fraudulently claimed sick pay to be overturned and the sanction of a first written warning (for failing to meet standard of behaviour expected of him) replace that of final written warning (for giving an impression that he was flagrantly misusing the Respondent’s sick pay scheme) and that the sanction that he be denied access to the Respondent’s sick pay scheme for 3 years be lifted.

No award is made for compensation due to what is accepted by the Complainant to have contributed to the situation that arose.

It is noted that the Respondent’s sick pay scheme is a generous one and one which benefits the many workers who have gone through the doors of this employment. It is understandable the Respondent would react severely in circumstances where it had reliable evidence that the scheme was being fraudulently mis-used.