Complainant

Respondent

Anonymised Parties

A General Operative/Hospital Ward Attendant

A Health Care Service Provider

Representatives

Peter Glynn SIPTU

 Kevin Little, HSE

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-00031220-001

01/10/2019

The Complainant has worked for the Respondent since 1992 as a general operative/hospital ward attendant. The IR complaint (CA 31220-001) arises out of a refusal by the Respondent to pay the Complainant, Temporary Rehabilitation Remuneration (hereafter referred to as T.R.R.) which may be provided under the Public Service Management (Sick Leave) Regulations 2014. Under these regulations T.R.R may be payable to an employee who has been injured and absent from work and who has exhausted the Respondent’s sick pay scheme. T.R.R. is essentially an early draw-down of a pension. The Complainant’s claim for T.R.R was made on 30 April 2019 and the period for which it is sought is 10 August 2018 until 3 May 2019. Consequently, it is a claim, in respect of a time period that, at the time of presentation to the Respondent, had already past. In that respect it is a retrospective claim.

The Complainant contends that the payment of T.R.R. is not discretionary and, as he met all the applicable criteria, T.R.R. be paid to him, in respect of the time period claimed. He contends that other employees were paid T.R.R. retrospectively and this is not a reason why it should be denied to him.

The Respondent contends that the criteria for T.R.R. were not met by the Complainant, that the payment of T.R.R. is one that is purely discretionary and is one that the Complainant is not entitled to, given that at the time he applied for it, there was no reasonable prospect that the Complainant would be returning to work (this being a condition of the payment of T.R.R.)

CA-31220-001

The Complainant objected to the Respondent introduction into evidence of his past absenteeism and contends that this has been introduced by the Respondent solely to prejudice his claim. The Complainant’s absence from work over a fifteen-year period encompassed a significant period of sick leave (until July 2012) which arose from a significant work place injury, from which litigation ensued.  Since 2012 he has had very few absences from work and it is since then that his work attendance should be considered. He contends that his historical work absences have nothing to do with the present dispute which he accepts arose out of a work-based incident on 17 July 2017 which the WRC and Labour Court have already adjudicated upon. However, to conflate this with issues in the present case is erroneous and wrong. The time-period for which the Complainant seeks T.R.R. is from 10 August 2018 to 3 May 2019, whereas the previous (unsuccessful) complaint to the WRC and the Labour Court, which related to payment pursuant to the Injury at Work scheme for the period 18 July 2017 – 30 October 2017. There is no overlap as alleged by the Respondent and to suggest this is misleading. While the Complainant accepts that the T.R.R claim arose at the end of sick leave which had commenced on 17 July 2017 and from whence the Complainant did not return to work, the Injury at Work application was for the earlier part of that leave period July 2017- October 2017. The T.R.R. was in the later period of that sick leave.

The Complainant accepts that when he applied for T.R.R. (on 30 April 2019) it was a retrospective claim insofar as it related to a period that had largely expired (TRR claim: 10 August 2018 - 3 May 2019) however this has not been a basis to refuse other T.R.R. applications for other employees who are returning from sick leave. He is being singled out by the Respondent.

The Complainant contends that he made every attempt to return to work. He attended Occupational Health and followed up with the recommended counselling, which was beneficial to him. He accepts that at the time he applied for T.R.R. he had not followed all the back to work protocols which were asked of him. This involved signing off on letters or minutes of meetings that were held ostensibly  to complete a risk assessment  (in accordance with the pre-return to work protocols that are contained in the Managing Attendance Policy and Procedures) but which were in reality a deliberate attempt to impose impossible conditions in order to frustrate his attempts to return to work.  He accepts that he refused to sign minutes of a meeting of 7 June 2019 however the minutes were not an accurate reflection of events and he could not accept this flawed record as a basis of a return to work.

In terms of back to work protocols, the Complainant completed the Risk Assessment form and attended Occupational Health, as requested. In 2018 Occupational Health had recommended a counselling course to the Complainant which he undertook between 22 August 2018 and 4 June 2019. He furnished a G.P. report dated 19 June 2019 which certified him as being fit to return to work. When he tried to return to work on 28 June 2019 he was ordered to return home on the basis that the risk assessment had not been completed, which he contends was not the case.

It seemed to the Complainant that every attempt he made to meet the criteria that he be fit for “regular and effective service” as the 2014 regulations stipulate, was stymied by the Respondent.

The Complainant alleges that the management tried to penalise him for the earlier dispute (in relation to his claim for injury at work) however his claim for T.R.R. is a discrete claim and should have been treated as such. He should not be punished twice for the same conduct (i.e. not receive Injury at Work grant and also be refused T.R.R.)

CA 31220-001

The background to this complaint claim arose from a lengthy period of sick leave following an incident between the Complainant and his supervisor 15 July 2017. During his sick leave the Complainant sought and was refused payment under the Injury Grant Scheme and this having been unsuccessfully litigated upon, only then did he seek T.R.R. It is not a coincidence that the Labour Court recommendation was dated 8 April 2019 and the T.R.R. claim was received on 30 April 2019. His motivation and continuing lack of cooperation was a factor in their decision to refuse him T.R.R.

T.R.R. is a purely discretionary payment. It is not an entitlement and it is subject to criteria set out in the 2014 regulations that the Complainant did not meet.

T.R.R. is not provided retrospectively. Under the regulations it may only be paid “if there is a reasonable prospect of a resumption of duty with ability to render regular and effective service.”

At the time the Complainant applied for T.R.R. on 30 April 2019 there was no reasonable prospect of a resumption of duty. While the Respondent was keen to expedite the Complainant’s return to work he had frustrated this process by a refusal to comply with the Managing Attendance Policy which sets out the form that a return to work must take following a lengthy period of sick leave. This includes completing a Risk Assessment, which he refused to do.

The conditions for a return to service are set out in the Public Service Sick Leave Scheme. Other than a G.P certificate being furnished (which, in respect of the Complainant, was not received until after 19 June 2019 – that is after the claim period for T.R.R. had already expired) there must be a completion of a Risk Assessment and without this risk assessment being completed an employee may not return to work. Due to a dispute between the Complainant and management over the contents of the minutes of the meeting on 7 June 2019 the risk assessment could not be completed and this was why when the Complainant attended work on 28 June 2019, he was sent home.

T.R.R. is a discretionary payment and it is within the entitlement of the Respondent administrator and on appeal, the hospital general manager, to refuse if at the time of application there is not proof of a reasonable prospect of a return to work.

The Respondent denies the remedy sought.

CA 31220-001

T.R.R. is a discretionary payment which may be paid to a public sector employee when sick leave remuneration has been exhausted. Its purpose is to rehabilitate an employee from illness or injury.

The wording of the regulations is discretionary. Significantly section 16 of SI 124 2014 [Public Service Management (Sick Leave) Regulations states that “the Administrator may determine that a person…shall be paid T.R.R.”

I do not accept the contention of the Respondent that this discretion is a carte blanche to refuse an application for T.R.R. for any reason but rather the criteria set out in the regulations must be applied to each application.

It is accepted by both parties that the payment is conditional on a reasonable prospect of a return to work being demonstrated. This is set out in section 6 (1) (b) of the regulations:

“TRR shall only be paid if …there is a reasonable prospect, on the person’s part, of resumption of duty with ability to render regular and effective service.”

A return to work following a period of sick leave is subject to compliance with the provisions and conditions of procedures as set out in management polices (Managing Attending Policy, Long Term Absence Benefit Scheme Guidelines, Rehabilitation Policy and other relevant policies).

A challenge for this Adjudicator is that the reasons as to why the T.R.R. was refused was not provided (at least not in writing) to the Complainant. The fact that the reasons were described to me at the Adjudication hearing does not remedy the frailty of an unreasoned decision. The fact that the refusal occurred is evidenced (in the letter of Mr. Peter Byrne dated 17 June 2019 where he states: “I refer to your recent retrospective T.R.R. payment application and I wish to inform you that your application will not be supported at this time” but other than this bare assertion, no reasons for the refusal were provided. The matter was thereafter appealed by the Complainant to the general manager and while I have letters again, which refer to the fact that the appeal was unsuccessful and further, that the appeal was heard in September 2019, I have not been given sight of either the appeal decision itself or it’s reasons.

Somewhat unusually, the failure to provide a reasoned decision, which is an obvious defect in fair procedures, does not play any part in the WRC complaints and I therefore am not tasked with a responsibility to remedy that failure. My role rather is confined to the remedy set out in the WRC complaint form: for this Adjudicator to reverse the decision to refuse the Complainant T.R.R. on the basis that the policy isn’t purely discretionary and that the Complainant met the criteria.

Turning to this and the 2014 regulations and I find as follows:

Part 2 section 6 (1) (b) of SI 124 of 2014 [Public Service Management (Sick Leave) Regulations] states that Temporary Rehabilitation Remuneration “may only be paid…if there is a reasonable prospect on the person’s part of resumption of duty with ability to render regular and effective service.”

The use of the word “may only be paid if there is a reasonable prospect of resumption” is an express criterion in the regulations. This can only mean that, at the time that the decision is being taken as to whether or not a person is entitled to be paid T.R.R., there must have been a reasonable prospect that he or she would be returning to work either then or arguably during the time period stipulated in the claim form i.e. 10 August 2018 until 3 May 2019.

It is common case that until the second half of June 2019 as there was still active disagreement between the parties as to the conditions upon which the Complainant would return to work.

The Complainant did not provide a G.P. certificate of fitness to work until 19 June 2019, which post-dates the time when the application was being considered and the claim period.

I find that at the time of claim for T.R.R. was made on 30 April 2019 and at the time when the decision by the administrator was being made, there was insufficient evidence available to the Respondent of a reasonable prospect of return to work.

The fact that that evidence of this may have become available after 3 May 2019 (when the claim period ended) is not relevant because that is not during the period in respect of which the claim was made and nor was it available at the time the decision to refuse T.R.R. was made.

For these reasons I find this complaint to be not well founded.

For the reasons set out I find complaint CA 31220-001 to be not well founded