Complainant

Respondent

Anonymised Parties

Delivery Person

Deliveries Company

Representatives

Frank McDonnell, Limerick Council of Trade Unions

Self-Represented  

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-00039981-001

22/09/2020

The Worker commenced employment with the Employer on 29th January 2007. On the 22nd September 2020 the Worker referred the present trade dispute, within the meaning of the Industrial Relations Act 1969, to the Commission. Whilst the employer objected to the referral of the trade dispute, such objection was not received within the statutory timeframe and the matter proceeded to hearing. Thereafter, the Employer fully engaged with the process.

A hearing in relation to this matter was convened and finalised on 10th February 2021. This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the Commission as a body empowered to hold remote hearings. No technical issues were experienced by either party during the hearing.

In summary, the Worker requested that he be retired on the grounds of medical incapacity. He, through his representative, submitted that his doctor had certified him as unfit to work, and in a situation whereby he did not believe there was any realistic prospect of a return to work he submitted that he should be retired on medical grounds. By response, the Employer stated that the Worker wascertified as fit for modified duties by their own specialist and that he had effectively stopped engaging with any process prior to the hearing.

No issues as to my jurisdiction to hear the dispute were raised at any stage of the proceedings.

The Worker stated that that he has been absent from work on a long-term basis due to ill health. After two years of continuous absence, the Worker was awarded an invalidity pension by the department of social protection. At present, the Worker’s GP has stated that he remains unfit to return to work.

The Worker submitted that given the passage of time and the severity of the illness, there is no realistic prospect of his returning to work. Having regard to the circumstances, he submitted that he should be retired on medical grounds. He further submitted that the Employer’s continuing threat of disciplinary action regarding an illness related absence has caused him significant distress.

In answer to a query, the Worker confirmed that he had attended the Employer’s CMO and had been offered a return to work on light duties. He stated that he fundamentally disagreed with the chief medical officer’s findings and stated that these were not based on the entirety or most contemporaneous of his medical records.

The Employee has been absent from work since 1st July 2015, and has been the subject of the Employer’s attendance management process. This process involves the scheduling of ongoing meetings and appointments to monitor an employee’s wellbeing and determine their ability to return to work. As part of this process, the Worker was referred to the Employer’s chief medical officer. On 8th June 2016, the CMO determined that the Worker had regained a reasonable level of health.

Following said assessment, the Employer’s human resources department correspondended with the Worker regarding his potential return to work. In September 2016 the Employer offered the Worker a return to work on light duties, with his health being monitored on an ongoing basis. When no response was received to this communication, the Employer again corresponded with the Worker in October 2016 repeating their earlier offer. By response, the Worker stated that he remained unfit for work was awaiting further reports from his medical practitioners to this effect.

In April 2017, the Employer again corresponded with the Worker requesting a meeting to discuss his potential return to work. On 28th April 2017, the Employer stated that sick pay would be withdrawn and disciplinary procedures would be instigated if the Worker did not return to work by 8th May 2017.

Shortly thereafter, the Worker referred a case under the Pensions Act to the Workplace Relations Commission and subsequently to the Labour Court on appeal. When the Court found against the Worker, the Employer’s human resources department wrote the to the Worker requesting any further information that might advance the matter, no such information was received following this request or prior to the lodgement of the present dispute.

In summary the Employer submitted that they are acutely aware of their commitments to the Worker regarding his disability. They stated that following a full and thorough process their chief medical officer determined that the Worker was entitled to return to light duties.  While the Worker may believe that the is entitled to be medically retired, this is not the case and such a position is not supported by the various reports received.

The present dispute relates to the classification of an employee’s medical status. At the outset, it was agreed by both parties that it is beyond the scope of the present hearing to make any such finding regarding an employee’s state of health and ability to return to work.  Such a finding can only be made by a medical professional following a thorough investigation of the employee’s medical records and an assessment of his current level of ability. 

In this regard, I note that the Employer has previously arranged for such an assessment, with the same stating that the Worker is fit to return on light duties. The Worker disputes these findings and has sought to challenge the same since they were communicated.

In this regard, without making any finding or observation in relation to contents the medical assessment, I note that the same is now almost five years old and the Worker’s state of health has almost certainly changed in the interim. In the circumstances I recommend that the Employer correspond with the Worker requesting access to his most contemporaneous medical records. On receipt of the same, the Employer should arrange a further assessment with the Chief Medical officer to assess the Worker’s current state of health and ability to return to work.

In circumstances where the Worker requested that I declare him medically unfit to return to work I do not recommend in favour of the Worker. Notwithstanding the same, I recommend that the Employer correspond with the Worker requesting access to his most contemporaneous medical records. On receipt of the same, the Employer should arrange a further assessment with the Chief Medical officer to assess the Worker’s current state of health and ability to return to work.

Medical Retirement, Long term sick leave, Light duties.