Complainant

Respondent

Anonymised Parties

An Employee

A Transport Company

Representatives

Gerard Kennedy SIPTU

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-00012114-001

26/06/2017

The Worker has been employed by the Employer since April 2004. Initially she was employed on a casual basis. In early 2011 she was successful in her application for a full-time position. She is seeking an appointment to the regular permanent staff as per contract signed in October 2012.

The basis of the dispute relates to the failure of the Employer to appoint the Worker to what is referred to as Regular Wages Staff. The term refers to fully appointed staff members and is a requirement of entry to the company pension and welfare schemes. The requirement set out by the schemes requires that an appointment is subject to the approval of the company Chief Medical Officer (CMO).   In 2010 the Worker had passed the medical assessment and was offered and subsequently signed a permanent contract. However, despite the permanent contract being signed by both parties and despite the fact that the Worker had passed a medical assessment in 2010 she was then advised in October 2011 that she was required to undertake a further medical. The Worker attended same but the CMO refused to pass her on the basis of obesity. The required approval has been withheld to date. In the interim period, there have been numerous representations made to the Employer by SIPTU seeking her appointment and in addition seeking clarity in relation to her contractual position as an employee. As a result of not receiving appropriate responses to these representations the union has referred this matter to the Adjudication Service for investigation.

Because of the current impasse in relation to her appointment the Worker has not been allowed to join the company Pension Scheme, has no access to sick pay and does not receive other benefits applicable to the Regular Wages Staff. This is despite the fact that the Worker does the exact same job as her work colleagues, works the same hours and rosters as her colleagues and receives the same remuneration package. In essence, the Worker is in an employment limbo whereby she undertakes the identical role and duties of her appointed colleagues and yet does not receive the same benefits.

The Union submits that this is a grossly unfair and an inequitable set of circumstances particularly taking into consideration that the last medical review undertaken by the Employer was over two years ago. As an example of the inequity that applies to the Worker, in 2012 she had to utilise 12 days annual leave to secure wages while she was on certified absence due to illness. The least that this employer could do is reimburse the Worker for those days.

The Union submits that the current set of circumstances applicable to the Worker cannot be allowed to continue. She is losing out on future pension benefits every single day that the current set of circumstances prevail. All that the Worker is seeking is to be treated in line with her colleagues and have her appointment to Regular Wages Staff ratified by her employer.

The Employer submits that the Worker initially started working with the Employer on casual basis but was successful in an application for a full-time position in April 2011. On 20 September 2010 the Worker was found medically fit for the appointment to regular staff by the Chief Medical Officer (CMO). The appointment was delayed pending approval of an internal company business case being approved. All appointments to the regular staff require a formal business case signed off by senior management. On 4 April 2011 a Contract of Employment was prepared and signed by the Director of HR and the HR Manager. On 8 June 2011 HR confirmed that the appointment should be processed and that the Medical Department advised that no further medical appointment was required at this time. However, on the advice of her Union the Worker declined to sign the contract due to an outstanding issue relating to annual leave which was a subject to the Labour Relations Commission conciliation process. Following the resolution of this issue a revised Contract of Employment was prepared and signed by the Worker on 15 October 2012. However, due to the delay and the revised date of the contract of employment it was then required that the Worker attend for an appointment with the CMO. This appointment took place on 23 October 2012 and the Worker was found fit for her current duties but her fitness for appointment to the regular staff was put on “hold” pending further attendance in the Medical Department. This has been the finding at all subsequent medical appointments.   It is important to note that that findings of this nature do occasionally occur and this type of findings is not unique to the Worker. Furthermore, it is also important to note that when it occurs the individual employee is informed of the specific concerns and is provided with medical and health advice on how to resolve the issue. This would typically include advice on support mechanisms available from the Employer. Ultimately, in these circumstances there is a significant degree of personal responsibility on the part of the workers to address their own specific issue following the guidance of the CMO. The CMO is the final arbitrator in deciding an employee’s medical fitness for duty and the final approval for full-time appointment. When an employee is put on “hold” for full-time appointment this is due to the CMO having a genuine concern about the employee’s health at the time of the medical appointment. As the vast majority of roles within the Employer’s company are defined as “safety critical” there is an additional onus of responsibility that applies to the medical criteria. Decisions of this nature obviously impact on the individual employees but are motivated by an adherence to legislation and fair application of procedures to all employees.

The Employer submits that, taking cognisance of the Worker’s circumstances the Worker was allowed access to the GP Scheme from 23 November 2012. However, full access to the schemes are dependent on appointment to a grade.

It is a common case that the Worker was found medically fit for an appointment to Regular Wage Staff following a decision of the CMO of 20 September 2010. The Medical Department advised that no further medical appointment was required at this time. Due to a significant delay on the HR part the Worker’s appointment was not confirmed by HR until 8th June 2011. Her Contract of Employment was prepared with the commencement date of 4th April 2011. At the time the Worker opted to delay the signing of the Contact due to an ongoing wider conciliation process in relation to annual leave entitlements. Following the conclusion of this process a revised Contract of Employment was signed by both parties on 15th October 2012. I note that subsequently the Worker was required to attend another appointment with the CMO. On 23rd October 2012 the CMO found the Worker fit for current duties but put on “hold” her appointment to regular staff due to obesity. The Worker submits that there was no change in her health circumstances, including her weight between 2010 and 2012. The Employer stated that it would be unprecedented to override the CMO decision and that a number of attempts have been made to facilitate an engagement between the Worker and the CMO. The Worker disputes that. The Employer obliged at the hearing to supply the Adjudication Officer with copies of the relevant correspondence. However, as of the date of this recommendation no evidence was forthcoming in support of the Employer’s statement.

I note that the Contract of Employment states the following:

“2. Duration 2.1. This agreement will commence on 4th April 2011 and will continue indefinitely unless terminate earlier pursuant to paragraph 2.2 of this clause or Clause 8 of the Contract. 2.2 The Contract is made consequent on the following work requirements: Satisfactory participation in the work to a standard sufficient to meet the targets as dictated by the Supervisor and/or Manager.”

“8. Termination 8.1 This Contract of Employment will automatically terminate in accordance with clause 2. 8.2 Notwithstanding the provisions in clause 8.1, the Company in line with the [Respondent’s] disciplinary policy, may by notice in writing immediately terminate this contract if the Employee will: 8.2.1 be in breach of any of the terms of eth Contract which, in the case of a breach capable of remedy, will not have been remedied by the Employee within 21 days of receipt by the Employee of a notice specifying the breach and requiring its remedy; 8.2.2 be incompetent, guilty of gross misconduct and/or any serious or persistent negligence in the provision of the service hereunder; 8.2.3. fail or refuse after written warning to provide the services reasonably and properly required of him/her hereunder.”

The Contract further states that “Membership to the [named company] Pension Scheme for regular wages staff is compulsory upon appointment to employees who meet the eligibility criteria, membership of the [named company] Welfare Scheme is also included as part of your terms and conditions of employment. Please refer to the enclosed booklets, included in your induction pack, which outline all the relevant detail.”

At the hearing the Employer stated that the “eligibility criteria” referred to mean a) the CMO approval, b) the signing of the contract. I note that the Employer obliged to forward the relevant booklets/ documentation on that matter to the Adjudication Officer. However, as of the date of this recommendation none have been received.

I note the Employer’s concerns in relation to “safety critical” roles and an additional responsibility in terms of the medical criteria. However, having given detailed consideration to the parties’ written and oral submissions, I find that in the instant case at the material time (signing of the revised Contract of Employment) i.e. 15 October 2012 the Worker was deemed to be medically fit by the CMO by virtue of her latest assessment in 2010. I note the Employer’s assertion that two years have passed since the assessment. However, the Employer did not require an updated one prior to signing the contract. Moreover, there is no provision in the Contract stating that the contract or indeed membership to the Pension Scheme or Welfare Scheme could be terminated in the event of the Worker not passing the medical assessment in the future. In that context, I take the view that the Worker has every right to expect the signed contract to stand.

This Recommendation is confidential to the Parties and cannot be used by them or any other person in relation to any other dispute at this or any other forum.

Based on all the circumstances of the case I recommend the following:

1.       That the Employer implements the signed Contract of Employment with an immediate effect and retrospectively as of the date of commencement of 4th April 2011.

2.       That the Worker is paid the full necessary adjustment in salary and any other benefits that applied to the post during the period from 4th April 2011 to date.

3.       That any issues that remain of concern to the Parties should be subject to discussion and agreement between the Parties and should be addressed in a normal way as per the internal procedures.

Medical assessment, fitness for permanent position