ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00011300

Parties:

Complaint(s):

Date of Adjudication Hearing: 05/04/2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure: In accordance with Section 13 of the Industrial Relations Acts 1969,following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.

Background:

The Complainant is employed as a Firefighter and commenced his work as a retained Firefighter in June 1985. He became a full-time Firefighter on 3rd September 2012. His gross pay is €1,086.99 per week.

The Complainant is seeking a recommendation for loss of earnings and to have his sick leave record changed to special leave, and to be awarded restoration of his full sick pay as a consequence of the Respondent’s handling of his return to work following a workplace accident.

Summary of Complainant’s Case:

The Complainant submitted that he was involved in a workplace accident while on duty on 21st November 2016 and where he remained unfit to return to his full duties until 18th April 2017. The Complainant advised that in December 2016 he requested to be allowed to return to work and perform light duties but that he was subsequently advised on 16th March 2017 by the Director of Services that the Local Authority was not in a position to allow a return to work for light duties on the basis this was not provided for in the operation of the fire service.

The Complainant advised that under a negotiated national agreement he was entitled to sick leave on full pay for a period of 90 days and this expired on the 20th February 2017 where he was paid at half pay for 35 days (€543.50 per week), and from 26th March 2017 he was in receipt of temporary rehabilitation rate of pay for 21 days at €221.87 per week until he returned to work on 17th April 2017.

The Complainant maintained that there were examples of other work colleagues that were treated more favourably than him, and the Complainant referred to a Firefighter who was facilitated in 2010, and to another Firefighter who was facilitated in 2014 following an accident outside work. In light of these examples the Complainant was seeking to be treated in a similar fashion where his sick leave would be classed as special leave and he would receive financial compensation for not being allowed to return to light duties.

The Complainant further maintained that at an internal industrial relations meeting between staff and the employer that was held on this 12th December 2016 light duties were discussed. At this meeting it was suggested that he could return to light duties to work on pre fire planning projects, and where it was also mentioned by management that he could be deployed in the library.

Summary of Respondent’s Case:

The Respondent acknowledged that the Complainant was injured while on duty and as result of this he was absent on sick leave from 21st November 2016 until 18th April 2017. The Respondent further acknowledged that in December 2016, the Complainant requested to be allowed to return to work and perform light duties but was advised that a return to work on this basis is not provided for in the operation of the fire service and this decision was confirmed by the Director of Services to the Complainant’s union representative of 16th March 2017.

The Respondent submitted that the Complainant received his entitlement to sick leave at full pay for 90 days (€1086.99 per week) which expired on the 20th February 2017, and he was paid at half pay for 35 days (€543.50 per week) from the 21st February 2017 until is entitlement to paid sick leave expired on 26th March 2017. The Complainant was paid a temporary rehabilitation rate for 21 days (€211.87 per week) from 27th March 2017 until his return to work on 17th April 2007. The Respondent further advised that when the Complainant requested an extension of paid sick leave under the Council’s Critical Illness Protocol, the Council refused this request as it did not meet the required criteria under the policy.

The Respondent advised that the Firefighter roster system does not have any capacity for Firefighters who cannot partake in full activities either in the station or on location due to the nature of work and the budgetary constraints. The Respondent submitted there are no other roles available, or a capacity to take in a Firefighter who cannot operate fully. It maintained that in accordance with the Complainant’s contract of employment each Firefighter employed by the Council must be prepared to fill to the best of their ability the duty as a Firefighter in the saving of life, the fighting of fires, and the saving of property. It further submitted that the contract required that members of the Fire Brigade who through illness are unavailable for duty are required to comply with the notification process which requires a medical certificate. The contract also requires a final “fit for work” certificate to be produced prior to resuming duty.

The Respondent maintained that the Complainant’s core duties required running, climbing ladders, going into buildings in breathing apparatus, rescuing and lifting casualties, and lifting heavy equipment. It therefore maintained the Complainant could not return to these duties until he was certified as being fully fit. If he was not fully fit he would present a significant health and safety risk to himself, his colleagues, and members of the public. The Respondent submitted it was on that basis it had to apply a strict policy and would only allow Firefighters who were certified as fully fit to return to work. The Respondent maintained there can be no compromise on this matter.

The Respondent acknowledged that there has only been one exception to this, in 2013 and where a Firefighter was absent from work and certified fully fit to return to work by his own general practitioner. Due to a delay in securing an examination with the Respondent’s occupational health practitioner the Respondent permitted this Firefighter to return to work on a specific task pending the completion of his occupational assessment.

The Respondent submitted that the procedure has now changed and where the current requirement is for an absent Firefighter’s own medical practitioner to certify the Firefighter fit and there is no longer a separate examination and assessment by the Council’s occupational practitioner. It further argued that in 2013 the Firefighter was returned certified fit by his own general practitioner whereas on the case within the Complainant was not actually fit to return to work until April 2017.

The Respondent argued there had been no other acts of exceptions since this example. It further maintained that it could have up to 6 injuries a year amongst its Firefighters, and it would not be feasible or practicable to find suitable alternative work for them.

In support of its decision not to redeploy the Complainant with alternative duties, the Respondent referred to Excellence Ltd versus the EDA1815 where, relying on the Nano Nagel School V Mary Daly [2018] IECA 11 case, it was upheld that the employer was not under any obligation to provide the claimant with an alternative job in another department, or remove the core duties of the job which he had been employed to do such as to substantially alter the character of that job. On that basis the Respondent submitted it was not obliged to offer the Complainant alternative employment.

In response to the comparator mentioned by the Complainant at the hearing, the Respondent requested it be allowed consider the background to this case and to make a response regarding the comparator on completion of the hearing. As the Respondent was not aware of a named comparator before the hearing the Respondent was allowed make this submission. In its supplementary submission the Respondent contended that the named comparator was not an identical comparator as it referred to a retained Sub-Officer and not a full-time Firefighter, as is the case with the Complainant. The Respondent advised in any event that the comparator was not absent from work due to injury or illness, but was deemed not to have passed the physical fitness test and as such was certified temporarily unfit to continue in service and consequently he was stood down from active duty. This was appealed and the outcome of the appeal was that a fitness programme was drawn up as the standing down of the comparator was in breach of an agreement with the union concerning a revised occupational health scheme. Accordingly, the comparator was allowed to remain on active duty pending a further medical assessment and where he continued his duties including all activities with no restrictions. The comparator had a further occupational health medical that he failed and he continued on full active duties for a further six months to get fully fit, but the comparator resigned some four months later.

On that basis the Respondent insisted that it could not return the Complainant to his activities due to the nature of his illness, and as such it had no option but to reduce his pay in accordance with the critical illness protocol.

Findings and Conclusions:

Having considered the matter I am satisfied that a real health and safety risk exists if an unfit Firefighter was to be deployed on active duty. I also acknowledge that the Complainant is of the view that alternative duties were available to him, whereas the Respondent maintained due to budgetary restrictions it was not feasible to have a Firefighter deployed on full pay in another role. I am also satisfied that the jurisprudence referred to has established there is no obligation on an employer to deploy an employee to another role that differs substantially from their core duties, and this ruling must be regarded in relation to the current dispute.

The crux of this dispute is the Complainant maintained that due an occupational injury and his previous paid sick leave record he had exhausted his sick pay scheme and he has suffered financially because of the occupational injury. The Complainant feels he has been treated unfairly because his pay was reduced. He maintained that he could have been deployed elsewhere in order to retain his pay.

The critical illness protocol provided by the Respondent sets out the basis for the support of employees who may be incapacitated as result of a critical illness or serious physical injury. This protocol advises that the individual may on an exceptional basis, be granted sick pay leave extended as follows:

• maximum 183 days on full pay in the previous rolling one-year period,
• followed by a maximum of 182 days and half pay in the previous rolling one-year period,
• subject to a maximum of 365 days paid sick leave in the previous rolling four-year period.

It further maintains that the granting of exceptional extended paid sick leave is a decision of management having considered the occupational medical advice. In addition, the protocol indicates the Occupational Physician from the employer’s Occupational Health Service will advise whether in their opinion the employee is medically unfit to return to his or her current duties or (were practical) modified duties in the same pay grade.

Based on a review of the evidence provided I am satisfied that the Respondent did apply its critical illness protocol correctly and it was unfortunate that the earlier illness of the Complainant meant he had used some of the extended period of sick leave due to previous illness. As a consequence, the Complainant qualified for less sick pay on this occasion than he would have qualified for had he not had a record of previous paid sick leave. But that is the nature of the protocol.

I note the policy further allows that after following the advice of an occupational physician an employee who is medically unfit can be certified to return to modified duties in the same pay grade where practicable.

In this case I am satisfied that management considered the redeployment of the Firefighter but were not in a position to find a suitable alternative role, and additionally to do so may set an unreasonable burden or precedent on the Respondent in light of the number of injuries Firefighters experience. Accordingly, I do not find any breach in the operation of the critical illness protocol. I therefore do not recommend any change to what has occurred, as the Complainant has not experienced a wrongdoing or unfairness in the application of the protocol.

Decision:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.]

As I have not found any breach in the application of the Critical Illness Protocol I recommend that matters stand.

Dated:   4 October 2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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