Complainant

Respondent

Anonymised Parties

General Operative

Manufacturing Company

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-00015129-001

19/10/2017

The complainant has been employed as a General Operative by the respondent since April 2013 and works full-time. The dispute is in relation to the decision by the respondent not to pay the complainant sick-pay in relation to a period of absence commencing in September 2017 and ending in mid-December 2017. At present the respondent pays sick-pay to employees absent due to a workplace accident or a workplace related illness.

The complainant went out sick in September 2017. Her doctor certified her as suffering from work related stress.

The complainant also attended the respondent’s nominated doctor whose report mentioned that the complainant found some work practices stressful.

The complainant’s union contacted the respondent requesting payment for their member in accordance with agreed practice.

The respondent got a second report from their doctor and because this report stated that the primary cause of her illness was not work related they refused to pay her.

The union requested that the complainant be referred to an independent doctor for assessment.

There were delays in arranging this referral and it was late January before the complainant attended a psychiatric appointment.

The psychiatrist declined to carry out an assessment due to the inappropriate manner of the referral.

The respondent blamed the failure of the assessment on the non-participation of the complainant and therefore would not change their decision regarding payment for the complainant.

The respondent has a policy that in the event of an employee being out on sick leave as a direct result of a workplace accident or illness, that employee is paid as normal.

The respondent operates a number of benefits including free GP and dental care and an Employee Assistance Programme (EAP).

The complainant was referred to an Occupational Physician who stated that the primary cause of her illness was not occupational in nature.

The respondent arranged a psychiatric review but the review did not take place due to an issue arising regarding the consent of the complainant in this regard.

The complainant could have availed of counselling under the EAP scheme but, for whatever reason, chose not to do so.

The respondent sympathises with the complainant but the medical advice is that her illness was not work related and therefore she is not entitled to sick pay.

The respondent operates a limited sick pay scheme whereby an employee who is absent from work due to an accident at work or a work-related illness is paid during that absence. I understand that discussions are ongoing in respect of a more formal, broader based scheme. The respondent’s position is that based on the report of an Occupational Physician the complainant does not qualify for payment.  

I have carefully considered all the submissions and documentation before me. The doctor produced an original report followed by a clarification sought by the respondent. It was this clarification that contained the opinion that the primary cause of the complainant’s illness was not occupational in nature.   There is, however, a further report following from another later appointment which discussed in greater detail the occupational aspects of the complainant’s illness. It is clear from that report that a departmental change within the workplace had contributed to the complainant’s condition.

I note also that there was a meeting between the complainant and the respondent’s Financial Controller about a week prior to the complainant going on sick leave at which the she spoke about the change of departments and the problems arising from same. The complainant also expressed fears as regards her bonus level arising from these issues. The Financial Controller reassured the complainant as regards her bonus and also advised her in regard to the respondent’s Employee Assistance Programme (EAP) and the fact that she could obtain counselling through that Programme at no cost to herself. There was also advice about seeing a doctor.

The respondent also cited the refusal of the complainant to participate in the assessment by the psychiatrist as further reason for their position. The report from the psychiatrist states that he did not proceed with the assessment as he was not satisfied that the complainant had fully consented to it taking place and because there was confusion about a medical report that had not been provided to him. The decision not to proceed was therefore taken by the medical expert and not by the complainant. The situation was not helped by differing advice as regards attendance from the complainant’s union.

I note that the complainant’s claim for occupational injury benefit was refused by the Dept. of Social Protection. The complainant was absent on sick leave from 11 September 2017 until 5 December 2017.

I respect the bona fides of both parties’ positions in this matter. It would appear that the change in departments had caused issues for the complainant, serious enough for her to seek a meeting with the Financial Controller. Amongst the recommendations that the complainant was given was that she should see a doctor, which she did. On consulting her doctor the complainant was certified unfit for work. The complainant was also advised of the EAP which she did not avail of. Whilst the clarification of the report of the Occupational Physician stated that the primary cause of her illness was not occupational in nature it is clear from his subsequent reports that the complainant’s workplace issues and her reaction to them formed a large part of the background to her situation. In these circumstances, I believe that management could have reviewed their original decision.

I recommend therefore that, in the particular situation of this case and without prejudice to their position regarding the payment of sick pay, the respondent agrees to pay the complainant the sum of €3,500.00 as a gesture of the good will and sympathy for her position expressed during the hearing.

I further recommend that the complainant should consider availing of the benefits offered by the Employee Assistance Programme if required.

Finally, I recommend that both parties continue to work together in order to achieve agreement on a general sick pay scheme for the future.