Complainant

Respondent

Anonymised Parties

An Assistant Staff Officer

A Health Service Provider

Representatives

Bernie Walsh

 Fiona Maguire

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-00030355-001

19/08/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00030364-001

19/08/2019

The Complainant went on stress related sick leave in September 2016 arising from criticism of her (by a manager)  because of the extent and the manner in which she took parental leave. A second period of sick leave was necessary following her return to work in January 2017 at which point her work performance was criticised. A grievance procedure brought by the Complainant ultimately led to an acceptance that she should not have been criticised and that she was permitted her to be transferred (and line management changed), following which her work environment improved. However she feels that the losses that arose from having to go on sick leave, exhausting the sick pay and the Temporary Rehabilitation Remuneration (TRR) that was available to her, should not be suffered by her, because this also impacted on her pension entitlements and she would not have taken the sick leave if she had not received the treatment she did.

The Respondent’s position is firstly that work related issues that became apparent during the first sick leave period, were required to be addressed on her return and secondly that there is no provision to permit further pay to be made to an employee who has exhausted the sick pay and the TRR scheme and if an Adjudicator were to compensate the Complainant for such losses this would be to re-write the agreed policies in place and would set a precedent which would hinder and not assist the industrial relations protocols that exist between the Respondent and its workforce.

The Complainant is an assistant staff officer. Arising out of a dispute between the Complainant and her then manager, wherein her entitlement to take parental leave was criticised, the Complainant went on stress related sick leave. Following this period of sick leave, she returned to work and on the first day of her return to work, the same manager held a meeting at which the Complainant was requested to attend (and for which the Complainant received no prior warning) at which her work performance was also criticised. Following this meeting, the Complainant felt that she was being targeted by this manager and she went on a further period of sick leave. During this second period of sick leave, she raised a grievance with her employer as to how she had been treated by this manager. During the grievance process the Respondent accepted that the work performance issue should not have been dealt with in the way that it was, however the Respondent maintained that it was entitled, indeed it was obliged, to investigate any issues of alleged work performance problems. The Respondent accepted that the criticism of the Complainant’s right to take parental leave, a protected statutory right, should not have occurred and it accepted too that by dealing with the work performance issues on the day that she returned to work was ill-advised timing-wise. Arising from the dispute the Respondent acceded to the Complainant’s request to be transferred to ensure that she no longer was needed to report to the particular manager. Following this transfer the Complainant’s working conditions improved and no further issues arose between the parties.

The complaint essentially concerns the manner in which the Complainant was dealt with, the fact that she was criticised for taking parental leave, the fact that work performance issues were raised at all (which in her view had no basis and the allegation alone undermined her reputation, which had been blemish-free since the start of her employment) and that they were raised on the day that she returned from a stress related sick leave, which also should never have occurred.

The Complainant seeks compensation to reflect the criticism levelled at her in the first instance and to compensate her for pay losses that she suffered when the sick pay scheme and the TRR scheme came to an end and to reflect the impact that this had in terms of service from the point of view of her pension.

The Respondent accepted that the criticism of the Complainant’s right to take parental leave, a protected statutory right, should not have occurred. Following the grievance meeting the Respondent acceded to the Complainant’s request to be transferred to allow her to no longer report to the manager who had criticised her. Following this transfer the Complainant’s working conditions improved and no further issues arose between the parties.

While it accepts that the Complainant should not have been criticised for taking parental leave, it fully reserves its right/obligation to investigate any work performance concerns. It is only through such investigations that work place performance issues may be identified and if necessary addressed.

The salary losses arising from the Complainant being paid sick pay and TRR as opposed to full pay should not be paid. The Complainant was on sick leave and received sick pay and TRR in accordance with the union/management agreements that govern such matters. There is no discretion to disapply sick leave and the payment of TRR in accordance with these agreements. There is no discretion to treat periods of sick leave/TRR as being service from a pension point of view.

The first issue to deal with is a so-called matter of “housekeeping.” Two identical complaints have been brought by the Complainant.  During the remote adjudication hearing, the Complainant accepted that duplicate complaints had been brought and formally withdrew Adj 23692, CA30355 – 001 (i.e the second complaint.) The complaint then proceeded on the basis of Adj. 23692 (CA 30364 – 001) (i.e. the first complaint.)

I fully accept the point raised by the Respondent that the purpose of an industrial relations adjudication is to assist in a constructive way in this dispute. It would be improper and against the purpose of the Industrial Relations statutory scheme to recommend an outcome that dis-applied the policies and procedures that are agreed in respect of sick pay and TRR and in respect of the resolution of grievances internally. This I accept.

My concern about this complaint also does not lie in respect of the sick pay and the TRR. If these payment schemes have been exhausted, any loss that may have occurred or impact that may have had on pension entitlements may not be extended without an agreement to permit this to occur. It should be stated that currently there is no statutory right to sick pay and the temporary rehabilitation remuneration is only a feature that pertains to the public sector. To interfere with the operation of these schemes by extending or altering their terms would undermine the policies that have been agreed and would undermine the right to sick pay and TRR which would impact on other workers. Likewise I have no discretion to treat periods of sick pay or TRR as being service from a pension perspective. That simply is not within either the discretion of the Respondent or an Adjudicator.

My concern about this complaint also does not lie in the fact that the Respondent investigated issues of the Complainant’s work performance. I accept that the Respondent is obliged to investigate any concern that management may have in relation to work performance and an allegation is not the same thing as a finding. Although I accept, as the Respondent did at the grievance meeting, that the timing of this investigation meeting was ill advised.

My concern rather lies in what gave rise to the taking of sick leave in the first place and the fact that the Respondent concedes that a manager criticised the Complainant for exercising her statutory right to take parental leave. This penalty or criticism could have given rise to a penalisation complaint, which could have been more costly to the Respondent than an IR complaint.

No manager should criticise the right of a worker for exercising his/her statutory rights. These are not rights that the Respondent acquiesces to, they are rights that every worker enjoys, equal to the right to be paid or the right to take holidays. The Complainant should not have been criticised for exercising her right to take parental leave. In this specific respect I find this complaint to be well founded and I recommend that the Complainant be compensated the sum of €3500. I further recommend that the Respondent take steps to ensure that all managers are provided with further training and made aware that such rights are protected and no worker should face criticism for exercising statutory rights.

AWARD: €3500

For the reasons set out I find this complaint to be well founded I recommend that the Complainant be compensated in the sum of €3500.00