FULL RECOMMENDATION
SECTION 81 (1), PENSIONS ACTS, 1990 TO 2014 PARTIES : AN POST - AND - PAUL COFFEY (REPRESENTED BY FRANK MCDONNELL DIVISION : Chairman: Mr Geraghty Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. An appeal of an Adjudication Officer's Decision No. ADJ-00015255.
BACKGROUND:
2. This is an appeal of an Adjudication Officer’s Decision made pursuant to Section 81 (1) of the Pensions Acts, 1990 to 2014. The appeal was heard by the Labour Court on 18 June 2019 in accordance with Section 44 of the Workplace Relations Act, 2015. The following is the Court's Determination:-
DECISION:
Background
This is an appeal by Mr Coffey, ‘the Complainant’, against a decision of an Adjudication Officer, (AO), of the Workplace Relations Commission, (WRC), that his rights under the Pensions Act 1990 had not been infringed by An Post, ‘the Respondent’.
The Complainant has been an employee of the Respondent since 2007 in the role of Postal Operative. He has been on sick leave since 2015. The Respondent’s medical advisor has stated that the Complainant could return to work in a sedentary role. Such a role has been identified.
The Complainant is in receipt of Invalidity Pension from the Department of Social Protection.
The Complainant sought to be allowed to retire on the grounds of ill health under the Respondent’s Occupational Pension Scheme. The Respondent has sought his return to work.
Complainant’s arguments
The Complainant has been certified as unfit to return to work by his Doctors and, by virtue of payment of Invalidity Pension, this is accepted by the Department of Social Protection. All certification has been provided to the Respondent.
The Respondent refuses to accept this medical evidence and refuses to allow the Complainant to retire.
The Respondent continues to insist that the Complainant return to work. He cannot do so and is not medically certified to do so.
Respondent’s arguments
The Respondent does not dispute that the Complainant has a disability nor that he is a member of the Respondent’s pension scheme. However, the Respondent’s medical advisor has stated that the Complainant can be accommodated back to work and that he is not permanently incapable of work.
The Respondent provides employment for people with disabilities and ensures reasonable accommodation, unless doing so puts a disproportionate burden on the Respondent.
The Respondent is not in breach of the Complainant’s employment rights. He continues to be a member of the Respondent’s pension scheme and he retains all his rights under the scheme.
This case has reached a point that, if the Complainant does not resume work, the Respondent will have to, reluctantly, deal with the matter as a disciplinary issue.
Deliberation
Ordinarily, in employment law cases, the Court lists the appropriate law in the finding. However, in this case, there is no clear provision in the Act under which this case has been taken that can be cited as even vaguely applicable to the circumstances.
The Complainant’s representative was unable to point the Court to any such provision and the Court is unable to find one.
There is simply no provision in the Pensions Act to require an employer to ignore the advice of their medical advisor that an employee is fit to return to work. Whether the Complainant is, or is not, fit to return to work is a medical matter on which the Court can offer no observations. The Court’s role is confined to consideration of the legal position.
Determination
The Court upholds the decision of the Adjudication Officer.
Signed on behalf of the Labour Court
Tom Geraghty
CR______________________
24 June, 2019Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.