Complainant

Respondent

Anonymised Parties

A Worker

A Health Service Provider

Representatives

Peter Glynn SIPTU

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-00025457-001

31/01/2019

In his complaint to the WRC the claimant outlined his grievance as follows:

“My employer did not pay me monies owed to me from April 2018. A HSE manager agreed to pay these monies and to date I have not received the monies due to me”.

The claimant contended that the respondent was in breach of the respondent’s return to work policy by failing to pay him for a 4 week period in 2018 when he was available to work. It was submitted that the claimant has carried out his duties and responsibilities with professionalism and diligence. It was contended that the claimant’s doctor had certified him fit to return to work on the 3rd April 2018 but when the claimant attended at work he was advised that he would not be allowed to return until an Occupational Medical Assessment was carried out and he was sent home. On the 6th April 2018, Mr. PB on behalf of the respondent wrote to SIPTU citing the requirements for all staff to attend Occupational Health. The email also alleged that the claimant “refused to sign the Occupational Health Referral Form when asked” and a form was subsequently sent to his home. The claimant refuted that he ever refused to sign the referral form and contended that no form was sent to his home address”.   It was submitted that following representations from SIPTU the employer agreed to pay the outstanding wages but had since reneged on that commitment. It was asserted that this caused the claimant and his family serious financial difficulties.

The respondent asserted that the claimant failed to particularise his complaint and that consequently there was no prima facie case to defend. It was submitted that the claimant was unpaid from the 21st March 2018 to the 29th April 2018.   The claimant had submitted an unacceptable return to work certificate on the 16th April 2016 stating that the claimant was fit to return to work from the 3rd.April 2018.   It was submitted that during this 12 day calendar period, the claimant was not paid as an Occupational Health Report was awaited and the claimant had refused to cooperate with the manager’s efforts to complete a risk assessment. It emerged that the claimant had by this time exhausted his sick pay entitlements. It was submitted that while there was discussion there was no agreement to pay sick pay and in any event payment would be in breach of the Sick Pay Regulations.

The respondent referred to the correspondence between Mr. PB and SIPTU and argued that the terminology contained therein demonstrated that unconditional agreement to pay the sick leave was not finalised and that the expression of agreement in the earlier part of the email was aspirational. It was further asserted that good faith return to work did not occur. It was submitted that the claimant resisted numerous attempts by his manager to complete the required Stress Risk Assessment. The respondent referred to previous complaints by the claimant to the WRC and described the claimant as a serial complainant. It was contended that sick pay could not be paid contrary to statute and even if payment had been discussed the associated conditions to meet the aspiration to any goodwill payment was never put in place.

I have reviewed the evidence presented at the hearing and noted the respective positions of the parties. The claimant took grave exception at the hearing to the characterisation of him by the employer as a serial complainant. I asked the respondent to reflect on this assertion and in a post hearing submission the respondent insisted that this was a correct characterisation given that 7 complaints had been received from the claimant in the last 12 months – ranging from grievances to WRC and Labour Court referrals.   In a follow up submission from the claimant, this assertion was denied and it was advanced that the claimant had only had 2 internal complaints and 2 WRC referrals.

I recommend that the parties engage as a matter of urgency with a view to exploring the dispute formula suggested by the Labour Court in LCR 21313 as a way forward in normalising relations between the parties.

As regards the substantive referral I have considered the arguments of both sides and it is clear that trust has broken down between the parties having been so close to a settlement as captured in the union’s email to the respondent on the 3th Oct. 2018. Having considered the entirety of the evidence, I have concluded that both parties have to bear responsibility for this breakdown. The claimant returned to work with an undated medical certificate for a retrospective period while the respondent’s contentions that the claimant refused to co-operate with occupational health / risk assessment referrals were not supported by the claimant’s supervisor’s account of the return to work meeting which was invoked at the WRC hearing. The claimant has calculated his net loss as €2156 while the respondent has calculated it as €1563.

I recommend in full and final settlement of this dispute that the respondent pay the claimant a compensatory sum of €929.75 within 4 weeks of the date of this recommendation.