ADJUDICATION OFFICER DECISION/RECOMMENDATION

 Adjudication Reference: ADJ-00009180

Complaint(s):

ActComplaint/Dispute Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 CA-00012050-001 21/06/2017  

Date of Adjudication Hearing: 04/10/2017

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 Section 13 of the Industrial Relations Acts 1969] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Section 13 Industrial Relations Act 1969

Ca-00012050-001

  Background: The Claimant commenced employment with the Respondent in May 1980 and she is currently employed as a Social Care Worker on a red circle rate at the top of Social Care Leader scale. In January 2015, the Claimant went absent on long term sick leave following a workplace incident with a service user. At the time, her available sick leave entitlement under the public service sick leave arrangements were very limited due to a long-term absence because of a road accident in February 2014. The claimant was paid her full salary, including premia, from January 2015 to August 2015, then from August 2015 to November 2015 she continued to be paid her basic salary, she was then placed on paid sick leave for 4 weeks until she exhausted her paid sick leave entitlement on December 12th 2015. In February 2016, the claimant applied for TRR(Temporary Rehabilitation Remuneration), and was supported in this application by the respondent. The application for TRR requires approval from the HSE. Further applications were sought and approved of up until January 2017. On January 18th 2017, the Respondent sent in the application for the renewal of the claimants TRR for the period February 1st 2017 to June 30th 2017. On January 25th 2017, the claimant appeared for the pre-arranged medical appointment. In his report, he noted; 'She is now due to see [her Surgeon] this Friday 27 January. She is out of work for two years but retains a desire to return to work in due course. She does not want to consider disability at this stage. The claimant remains unfit for her previous work. With the passage of time, it becomes less likely that she will be satisfactorily be able to return to this type of work but as noted, her wish is to continue with her surgeons as there has been some improvement......It is likely however that her current absence from work will continue for at least four to six months. It is not possible to gauge with any optimism the likelihood of a return to work in the foreseeable future'. As a section 38 Employer, the Respondent is obliged to adhere to public service pay policy and to ensure it does not over pay staff in accordance with this policy. One of the conditions of receipt of TRR in that, 'there is a reasonable prospect of a return to work and to give regular and effective service'. Based on the medical report dated January 26th 2017 the Respondent became concerned that they would be in breach of their obligations as a public service employer if they continued to support the Claimants application for TRR and as such notified the Claimant on January 27th 2017 that she no longer met the conditions for eligibility for TRR.    

Claimants position:

1.  The claimant met all the requirements as contained in the HSE's Public Service Sick Leave Scheme and followed the procedure in respect of same.

2.  Notwithstanding the above, the respondent breached their own Policy by not complying with its own rules.

3.  The claimant is seeking the loss paid retrospectively because of the respondent’s failure to adhere to the terms of the Policy and because of this the claimant was without payment of the TRR for the remainder of the time she was out on leave.

4   In conclusion the claimant is seeking the TRR payment paid to her for the period February 1st to July 12th 2017 and are also seeking compensation regarding the manner in which she was treated by the employer and for breach of their company policy.

Respondents position:

The claimant has not lodged any grievance internally prior to taking this matter to a third party.

2.   The respondent is obliged to comply with the terms of public pay policy and with the terms of the HSE Circular 005/2013 Public Service Sick Leave Regulations and SI 124/2014.

3.  The respondent was happy to support the claimant in her application for the extension TRR whilst she met the requirements of the Policy.

4.   Based on a medical report from the company Doctor where it was stated that he was unable to gauge with any optimism the likelihood of a return to work in the foreseeable future, the respondent was obliged to withdraw its support for TRR.

Findings:

  Both parties made written and verbal submissions at the hearing. Having examined the evidence as presented I have made the following observations. It appears that the respondent’s interpretation of the Doctors report dated January 26th 2017 combined with the criteria required to be eligible to receive TRR, led the respondent to the conclusion that the claimant no longer met these requirements. The decision by the respondent not to support the claimant’s application for TRR at that time given the information available on the day was in fact the correct decision and a reasonable one. It would also appear that the claimant’s failure to fully utilise the respondents Policies and procedures in raising a grievance may have contributed to the prolonging of this dispute. In taking into consideration the above I am making the following decision.  

Recommendation

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute. I cannot support the claimants case however I would recommend that her position is kept under review.    

Dated:   11/01/2018

Workplace Relations Commission Adjudication Officer: Jim O'Connell