ADJ-00020492

Complainant

Respondent

Anonymised Parties

{A Clerical Officer}

{A College}

Representatives

StellaGriffinFórsa Trade Union

Niamh Ní CheallaighIBEC

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-00027045-001

14/03/2019

The Worker is employed as a Clerical Officer. She received a serious hand injury on 9th April 2017. She was absent for 8 weeks on sick-leave. She had a number of surgeries since then.

The Worker has been given the Critical Illness Protocol for her last 2 absences due to her injury. She only became aware of the Protocol in October 2017 and is seeking consistent application of the Protocol. The Respondent has deemed her ineligible for Critical Illness Protocol for her absence following second surgery related to this injury Oct 2017 to January 2018.

The Worker is not seeking the retrospective application of Critical Illness Protocol to her following her first surgery.

The Worker raised a grievance regarding payment under this Protocol but this has not been resolved satisfactorily, nor has local engagement been able to resolve the issue.

The Worker is a full-time Clerical Officer since 2003.

From April 2017 to June 2017 the Worker went on sick-leave following an operation.

In September 2017 the Worker went on work-related stress sick-leave as a result of working conditions in her current department being very stressful. She was reviewed by an Occupational Health Doctor in October 2017 and found fit to return to work.

Subsequently the Respondent received a medical certificate citing “post op” from the Worker’s GP. The Worker was informed of the Critical Illness Protocol by letter of 25^th October 2017. On 14^th November 2017 the Worker wrote requesting to be considered for the Critical Illness Protocol, enclosing a letter from her Surgeon and Occupational Therapist.

The specific requirements for Critical Illness Protocol are set out in Circular 0062/2015. The following requirements must be met:

(i)                  The employee must be medically unfit to return to their current duties or modified duties at the same grade.

(ii)                The nature of this medical condition has at least one of the following characteristics:

(a)    Acute life-threatening physical illness

(b)    Chronic progressive illness, with well-established potential to reduce life expectancy

(c)     Major physical trauma ordinarily requiring corrective acute operative surgical treatment

(d)    In-patient hospital care of 2 consecutive weeks or greater

The first and second Occupational Health Doctor found the Worker did not fulfil the criteria for critical illness payment. The third doctor stated in January 2018 the Worker is fit for a modified administrative role and until her elective surgical procedure is confirmed any decision extending sick-leave under Critical Illness Protocol is most likely invalid.

The Worker had elective surgery in March 2018 and was awarded Critical Illness Protocol. The Respondent says they have applied the Policy fairly.

I have heard and considered the submissions of the Worker and Respondent in relation to the application of the Critical Illness Protocol in this case.

The Worker has suffered a serious hand injury and required elective surgery and occupational therapy to address the functional deficit. The criteria for award of extended paid sick leave under Critical Illness Protocol is determined by the Circular. This requires the employee be medically unfit to return to his or her current duties or modified duties in the same pay grade, and in addition comes within 4 categories of criteria of serious illness.

The Circular provides that the decision to award extended paid sick leave is a management decision. While management must primarily consider the Occupational Medical advice, it should consider all the circumstances of the case. Management have discretion to award critical illness protocol in exceptional circumstances even if the employee does not meet the medical criteria.

In this case, the first and second occupational doctors of the Respondent found the Workers injury did not fall within the Critical Illness Protocol.

The Workers is restricted from being able to type continuously or carry out heavy manual handling, and could type with one hand and carry out light duties. She was wearing a splint at the time and was required to do exercises for 1 hour 3 times per day.

The third occupational health doctor clarified her view in January 2018, that the Worker is fit to return to a modified administrative role which can be accommodated. On account of the Worker’s trauma requiring a number of corrective operative surgical treatments due to various complications, the third doctor formed the view the Worker would qualify for Critical Illness Protocol on account of the complicated post- operative course and her functional deficit in the event of further elective surgery being required in the future. The doctor said this may be invalid as the surgery had not definitely been planned.

The Worker had further surgery in March 2018 and was awarded Critical Illness Protocol following the surgery. There is a gap in payment to the Worker of Critical Illness Protocol from 23 October 2017 to 4^th January 2018 while the assessments were ongoing.

The deficit of guidance on application of management discretion under the Critical Illness Protocol has previously been criticised by my colleague. Evidence given by the Respondent’s witness at their hearing is their practice is to follow the medical advice given. There was no evidence from management of any consideration of the exercise of their discretion to award Critical Illness Protocol, nor any reasoning for the failure to do so in this complicated injury.

Given the serious nature of the injury, ongoing functional deficit during this period and impact on the Worker, I recommend payment of the Worker’s entitlement to Critical Illness Protocol based on exceptional circumstances for the period when the Worker was certified unfit for work “post op” from 23 October 2017 to 4^th January 2018.

I recommend payment of the Worker’s entitlement to Critical Illness Protocol based on exceptional circumstances for the period when she was certified unfit for work “post op” from 23 October 2017 to 4^th January 2018.

Critical Illness Protocol, discretion, consistency in application, medical assessment