Worker

Employer

Anonymised Parties

A Kitchen Porter

A Hotel

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-00017961-001

14/03/2018

The Worker commenced his employment with the Employer on 17th November 2010 as a kitchen porter. He left his employment on 29th March 2018. He referred this dispute to the Workplace Relations Commission (‘WRC’) on 14th March 2018.

The Worker submits that he commenced his employment with the Employer in 17th November 2010 as a kitchen porter. In November 2017 the Worker was out on sick leave with eczema. This was his third occasion on leave due to eczema. He was certified fit to return to work by his GP on Wednesday 15th November 2017. The Worker emailed his supervisor, Ms K on 15th November 2017 to advise her that he was fit to return to work from Friday 17th November 2017. This would have been the practice on the previous occasions when he was out sick. On 16th November 2017 the Worker emailed Ms C in HR advising her that he had emailed Ms K advising her that he was fit to return to work from 17th November 2017. He advised that on checking the roster that morning there were no hours in for him. Ms C replied to the Worker by email on 16th November 2017 requesting him to attend the company doctor on Monday 20th November 2017. This is notwithstanding the fact the Worker had already been certified fit by his GP. The Worker attended the company doctor on 20th November 2017 and was certified fit to return to work. The Worker submits that the Report was available on this date. However, the report was not picked up by the Employer until 27th November 2017. This was only after the Worker intervened and telephoned the doctor’s surgery on that date and the Report was picked up by the Employer. The Worker emailed Ms C of HR on 27th November advising her again that he was fit to return to work and that he was without any income since 15th November 2017 despite the fact that he was available for work. Ms C replied that she had received the Report that day and was forwarding some to the Employer’s insurers causing further delay even though the company doctor concurred with the GP. The Worker eventually returned to work on 1st December 2017. He raised a grievance by letter of 18th November to the General Manager. The General Manager upheld the decision not to pay the Worker in his reply of 21st December 2017. However, he made no reference to the unacceptable delay in the report being picked up by the Employer. On 8th February 2018 SIPTU wrote to Ms C of HR requesting that the Worker be paid in respect of the period which he was declared fit to work. SIPTU did not receive any reply to this correspondence. SIPTU on behalf of the Worker argue that he was available for work. The Employer should have returned him to work and if they had any issues with his skin condition should have relocated him from dishwashing area to another part of the kitchen while he was being medically reviewed. While this was the third occasion the Worker was out on sick leave with this condition, it was due to the fact that he was left at an industrial dishwasher for prolonged periods whereby he was subjected to large volumes of hot steam which exacerbated his condition. If the Worker works for more than one week at this machine his skin flares up, and this is what occurred.

The Worked seeks payment in respect of the period from 17th November 2017 to 1st December 2017.

The Employer submits that the period between 17th November and 1st December 2017 is the period of time in dispute. The Worker is seeking a recommendation of salary payment for the period while the Employer established his fitness to return to work. The Employer submits that the Worker commenced his employment with the Employer on 2nd February 2010 (not 17th November 2010 as submitted by the Worker) as a kitchen porter on a part-time basis (signed “Casual-Part Time Contract of Employment” was exhibited at the hearing). The Worker ceased his employment on 29th March 2018. On 31st August 2017 the Worker was signed off as unfit for work due to a skin irritation and eczema. The medical certificates covered the period form 31st August 2017 to 14th November 2017. The sick leave was unpaid as per the Employer policy. On 15th November 2017 the Worker issued to HR a certificate indicating that he was fit for duties. Due to the nature of the absence and its potential impact on health and safety, the Employer required the Worker attend Occupational Health on 20th November 2017 as precaution to ensure that he was indeed safe to return to his duties and to see what accommodations, if any were required to provide for his return to normal duties. He remained on sick leave during that period as a precaution. The Occupational Health doctor acknowledged the seriousness of the Worker’s condition, particularly in his specific work environment which is of high risk. Whilst the overall recommendation was that of a return to duties, it was under express direction for the use of proper PPE, which is changed regularly, application of moisturiser, and did conclude that despite all these interventions the condition may again flare up and ultimately render the Worker unable to continue to perform his role as a kitchen porter. On this basis, the HR Manager confirmed to the Worker by email dated 29th November 2017 that he was to be returned to normal duties. The Employer intended to refer the Worker to Occupational health again in one month after the above appointment, per doctor’s recommendation. However, the Worker had actually gone back out on sick leave from 23rd December 2017, once again due to the same skin irritation. He remained on sick leave due to this condition until his resignation. The Employer submits that the Worker worked as a kitchen porter and has had issues with the skin condition complained of in this instance. As per the Occupational Health report, the medical issue is exacerbated by wet work, irritating the skin and making it worse. This directly matched the type of duties and environment the Worker would have worked in, as a kitchen porter with mainly cleaning duties. The Worker’s GP simply stated that the Worker was fit for duties. As a reasonable employer with a duty of care for employees and others, the Employer had a concern and a need to establish that the Worker was indeed fit for duties and if there were any supports or accommodations required to facilitate his return to work. There is also the matter of hygiene as well as health and safety of customers and other employees of the Employer to safeguard. Indeed, skin diseases are considered with such seriousness they are identified under page 28 of the Employee Handbook where it is referred to as a health and safety consideration of the utmost importance “for the safety of colleagues and customers”. It was therefore incumbent that the Employer ensured that there was no risk posed, and this was the reason for the Occupational Health appointment, which required the turnaround that is the matter of this dispute. Therefore, the Worker remained on sick leave (unpaid as per the Employer policy) whilst this urgent confirmation was sought from Occupational Health, at the Employer’s expense as it is the Company norm.

The Employer does reserve the right to send employees to Occupational Health “to provide your employer with the information as to how best to facilitate a return to work and the likely timescale involved”. The Employer submits that there is a formal grievance procedure the Worker could have utilised which he has not done. The Worker could have used this, has received it and indeed used in the past.

The Employer disputes the details included in the Complaint Form in respect of the Worker’s hours of work and salary. The Worker submitted that he worked 39 hours a week and earned a salary of €382 per week. The Employer submits that the Worker was on a variable hours’ contract depending on availability from both sides. The disputed period in November was not particularly busy one and there was no guarantee of work available, nor that the Worker would accept during this period. The Employer through examination of 52 weeks prior to 17th November 2017 confirmed an average of 29.88 hours per week worked by the Worker at a rate of €9.65 which totals €288.34 per week.

Post-hearing the Employer provided a detailed calculation of the Worker’s hours of work, which showed that on average the Worker worked 16.66 hours a week. The Worker accepted this figure.

I have carefully considered the written and oral submissions made by the parties in relation to this dispute. The matter which prompted the Complainant to refer this dispute to the WRC for adjudication under Section 13 of the Industrial Relations Act 1969 related to the delay in returning the Worker to work following a period of illness which resulted in the Worker being without any income from 17th November until 1st December 2017. It is common case that the Worker suffers from eczema. He was unavailable for work on sick leave due to recurring eczema on three occasions in 2017:

·         From 11th February to 8th April

·         From 27th May to 29th July

·         2nd September to 15th November

I note that the Employer argued that the Worker remained on sick leave until 2nd December when, following the company doctor’s review he was put back on the roster. However, I find the Complainant was certified fit for work on 15th November by his GP, he informed the Employer that he was deemed fit to resume his duties by his GP from the 17th November and he did not submit any further medical certificates after that date. The Contract of Employment, as signed by the parties stipulates as follows: “The Company reserves the right to call you for a medical examination to determine your fitness to work on general and specific duties. In the event that you refuse to undergo such a medical examination, the Company will have to make a decision on your fitness for employment on the evidence of information available. The Company does not operate a sick pay scheme but sick may be paid in exceptional circumstances at the discretion of the Company.”

I accept the Employer’s argument that, taking the nature of the Worker’s position and the possible health and safety implications, the Employer believed that the assessment of the Worker’s condition by the company doctor is necessary. However, I find that the delay of two weeks in circumstances where the Worker was deemed fit to return to work by his own GP was unacceptable. If the Employer felt that it was not appropriate to return the Worker to his normal duties it was up to the Employer to either put the Worker on alternative duties during the period the Employer awaited the Occupational Health Doctor’s Report or, if that was not feasible, perhaps consider the circumstances to be exceptional and put the Worker on paid leave of absence. Having reviewed all the evidence available to me I find that there was an inordinate and unreasonable delay by the Respondent in dealing with this matter.

In considering this issue, I note that in circumstances where a worker has a grievance there is an obligation to instigate the internal procedures. The Worker has been furnished with Contract of Employment and Handbook which outline the grievance procedures. The Worker was aware of the Employer’s internal grievance procedures and had used them in the past. At the hearing the Worker did not express any concerns in respect of the fairness of these procedures. However, he chose on this occasion not to follow the process. Following his return to work he wrote directly to the General Manager of the Employer. In his letter of 18thDecember 2017 the Worker outlines the matter of delay in putting him back on the roster and the requirement for additional doctor’s review. However, his letter states clearly: “This letter is a complaint about [Ms C], our HR Manager.”   Subsequently, on 8th February 2017 SIPTU on behalf of the Worker wrote to Ms C, HR Manager requesting a payment for the period between 17th November and 1st December 2017.

In the circumstances, I find that the Complainant is entitled to compensation for the delay arising from the manner in which the Employer dealt with the matter. In considering the level of compensation, I have taken cognisance of the Worker’s failure to appropriately engage in the grievance process.

I recommend that the Employer pay the Worker a sum of €250 in compensation in full and final settlement of this dispute.

Sick pay- medical examination