ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00031292
Parties:
| Complainant | Respondent |
Anonymised Parties | Instructor Supervisor | Charity (funded by S.38 grant) |
Complaint:
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-00041573-001 | 16/12/2020 |
Date of Adjudication Hearing: 02/06/2021
Workplace Relations Commission Adjudication Officer: Maria Kelly
Procedure:
In accordance with Section 13 of the Industrial Relations Acts 1969following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute. The matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the Workplace Relations Commission as a body empowered to hold remote hearings.
Background:
The employee commenced employment as an Instructor/Supervisor with the respondent in June 2008. She worked a 70 hour fortnight. From November 2019 to May 2020 the employee was out of work on certified sick leave. She submitted a complaint to her employer in December 2019 under the grievance policy. The employee alleged she was being subjected to ongoing harassment by her manager. The complaint, following a hearing and an appeal hearing, was upheld in part. The employee claims she suffered a loss of earnings due to her interaction with her line manager. The employee submitted a complaint to the employer in November 2020 seeking to address the loss of earnings. The loss of earnings issue was not resolved, and the employee referred a dispute to the Workplace Relations Commission on 16 December 2020. She is seeking compensation for loss of earnings and reinstatement of the sick leave utilised between November 2019 and May 2020. |
Summary of Complainant’s Case:
The employee has worked as an Instructor/Supervisor for the employer for over 13 years. The employer is a charity funded through Section 38 grants by the HSE. In November 2019 the employee was medically certified as suffering from stress and she went on sick leave. She returned to work in May 2020. The employee formally submitted a grievance to her employer on 12 December 2019. In her grievance the employee claimed that for the previous three years she had been subjected to unwanted and inappropriate treatment by her manager. She complained of inappropriate texting messaging, contact outside working hours, contact at her home and suggestions of losing her job. A formal grievance hearing took place on 27 and 28 January 2020. The outcome and findings were issued on 22 May 2020. The employee’s case was upheld in part. The employee submitted an appeal on 04 June 2020. The original outcome and findings were upheld. Pay and Sick Leave The employee was on stress related sick leave from November 2019 until May 2020. While on sick leave she received a letter from her line manager, the person whom she had submitted a complaint about, concerning pay. The letter of 06 January 2020 stated, “as of the 30.12.2019 you will be on unpaided sick leave…”. This communication was different to previous correspondence the employee had received from the payroll section. In November 2019 the payroll section had stated that the employee was still on full pay and that she would be notified when she was going on to half pay. The employee queried the letter of 06 January 2020 with payroll. The following day payroll confirmed the letter was correct and that she would now be off pay while on sick leave. The employee asked if consideration could be given to her position as she was on sick leave due to work related stress and the short notice of going off pay. She did not receive a response. The union wrote to payroll on 09 January 2020 on the employee’s behalf noting that she had been told in November 2019 that she was still on full pay. No formal response was received. The employee, union and employer were in correspondence about another work location and the employee returned to work on 11 May 2020. She was on unpaid sick leave from January until her return on 11 May 2020. On 04 November 2020 the employee submitted a grievance concerning her loss of earnings and sick leave. The employee claimed she had an overall loss of €15,337. (Following the hearing the union submitted a revised calculation of the loss claimed as €10,240.66) The employer responded stating that it was not in a position to accede to the employee’s request for payment. There was an exchange of correspondent between the union and the employer and a virtual meeting took place on 17 December 2020. The matter was not resolved at the meeting. The employer sent a formal response on 14 January 2021, stating it was not willing to concede the claim. Union’ Case The employee was on certified sick leave, suffering with work related stress, from November 2019 to May 2020. The employee has been placed under significant stress and strain because of unwanted and unwarranted interaction with her line manager. Her medical certificates confirm that she could not return to the workplace while there was any prospect that she would have to work, in any way, with her line manager. When a new work location was identified the employee was able to return to work. This demonstrated that the sole reason why the employee was out of the workplace was due to her immediate working relationship with her line manager. The employee should not have been negatively affected in her role by her line manager and should not have been financially disadvantaged because of this unwanted attention that she tried to address with her employer. An employer has a duty of care to staff to ensure safety in the workplace. The employee suffered financial hardship because of her line manager’s action. Any negative interactions or experiences should be accounted for and addressed by the employer. No financial remedy has been put in place by the employer to address the employee’s significant loss of earnings. Conclusion The Union requests a recommendation as follows: · the employee be financially compensated for her loss of earnings for the period of sick leave. The loss claimed is €10,240.66. · reinstatement of sick leave utilised from November 2019 to May 2020, as a result of work related stress. |
Summary of Respondent’s Case:
The employer is a not for profit organisation funded through Section 38 grants from the HSE. The service employs 581 (whole time equivalents) and provides a range of day and residential services. The services are designed to meet the varying needs of adults and children with intellectual disabilities in over 70 locations throughout the South East of the country. This matter concerns a claim by the employee against her employer under that Industrial Relations Act, 1969. The employee is seeking to be paid additional sick pay more than the entitlement contained in the Company’s sick pay scheme and what has been agreed nationally between the HSE and health sector unions. The employer cannot accede to such a claim as it would have significant ramifications not only within its own service but is, an attempt to renegotiate a nationally approved sick pay scheme in the health sector. The employee commenced employment in June 2008 on a locum relief care assistant contract. She subsequently held several different contracts, with her most recent contract, for 70 hours per fortnight, issued in 2016. Following her return from sick leave, and at her request, her hours were reduced from 70 to 60 per fortnight. The employee commenced a period of sick leave owing to work related stress on 08 November 2019. Due to a high level of sick leave in the past the employee moved unpaid sick leave on 30 December 2019. By e-mail, dated 12 December 2019, the employee lodged a grievance against her manager. Her complaint raised fourteen specific issues against her manager. In accordance with the company’s Grievance and Disciplinary Procedure the grievance was heard at Stage 2 by the Regional Services Manager. The outcome of the hearing was sent to the employee on 21 May 2020. The Regional Services Manager upheld four aspects of the issues raised, a fifth was deemed to not relate to her manager and nine issues were not upheld. The employee appealed the outcome and the grievance at Stage 3 was heard by the HR Manager. The decisions made by the Regional Services Manager were not varied by the HR Manager. The employee returned to work on 11 May 2020 and subsequently in June 2020 she was offered either a temporary part-time role of 70 hours per fortnight or a permanent part-time role of 60 hours per fortnight. The employee’s request to work 60 hours per fortnight for a period of one year was approved. Pay and Sick Leave The Union on behalf of the employee requested she be paid additional sick pay for the period she had been on unpaid sick leave. A sum more than €15k. As the Grievance Procedure states, “The grievance procedure does not cover matters relating to improvements in pay or existing terms and conditions of employment which are of general application, i.e. matters appropriate to the collective bargaining process” the request for a meeting was initially declined. However, to resolve the issue and explain the why the employer was not able to pay the employee for the period of unpaid sick leave, a meeting was arranged for 17 December 2020. The employer explained it was not able to accede to the Union’s request to make a goodwill gesture on this matter. The position was clarified by e-mail dated 14 January 2021. As the employer is a Section 28 agency funded by the HSE it must adhere to the HSE circulars relating to the running of its service. The sick pay scheme of the employer is regulated by HSE HR Circular 005/2014 which refers to S.I. No. 124/2014 Public Service Management (Sick Pay) Regulations 2014. Regulations 9 and 10 of the Circular deal with pay while on sick leave and provide that an employee is entitled to three months full pay and three months half pay in any rolling four year period. This entitlement is included in the employer’s Managing Absence Policy. The entitlement is also included in the Employee Handbook at paragraph 3.6. On 06 May 2020 the employee signed and acknowledgement that she had read, understood and agreed to abide by the conditions laid out in the handbook. By 30 December 2019 the employee had exhausted her paid sick leave entitlement of three months full pay and three months half pay. Temporary Rehabilitation Remuneration (TRR) The details of the TRR scheme are contained in S.I. 124/2014 and the Managing Absence Policy. If an employee has exhausted their paid sick leave they may apply for TRR under the conditions set out in the policy. The employer attempted to commence the process for the employee to avail herself of a TRR benefit but the necessary information was never provided by the employee. Collective Agreement The employer submits that in addition to the boundaries contained in S.I.124/2014 where there are collective agreements in place, neither an Adjudication Officer nor the Labour Court ha any jurisdiction in such matters. The employer relies on the recommendation of the Labour Court in South Infirmary Victoria University Hospital v A Worker LCR22291 to support this submission. Conclusion The employer’s sick pay arrangements are governed by legislation. Such legislation arises from extensive negotiations between the Department of Health and the various unions involved in the health sector. Legislation and collective agreements cannot be negotiated or rewritten locally or via complaints to the WRC. The employee exhausted her sick pay entitlements by 30 December 2019. The TRR scheme was available to her but the necessary information to participate in that scheme was never provided. The employer submits this complaint should fail. |
Findings and Conclusions:
CA-00041573-001 The factual background to this dispute is mainly agreed between the employee and the employer. In November 2019 the employee was certified on sick leave suffering from work related stress. In December 2019 the employee made a complaint about her line manager using the internal Grievance and Disciplinary Procedure. The complaint included 14 allegations which were all investigated by the employer. Four of the allegations were upheld, nine were rejected, one was deemed not relevant to the complaint. The employee appealed the finding and outcome. The appeal upheld the original decision. This dispute is not about the employee’s complaint about her line manager but rather concerns her sick pay and sick leave entitlements / loss of earnings in the context of the original complaint. The employee is seeking to be financially compensated for a loss of earnings arising from a period of sick leave from November 2019 to May 2020. The loss claimed is €10,240.66. In addition, she seeks reinstatement of sick leave used between November 2019 to May 2020, when she was medically certified as suffering from work related stress. The employee submitted a complaint under the Grievance and Disciplinary Procedure to the employer on 04 November 2020. The employee’s position is that she should not be at a loss. She suffered stress in the workplace and part of her complaints against her line manager were upheld. Therefore, this dispute it is claimed is about a loss of earnings and not about the sick pay scheme. The employer’s position is that the sick pay scheme of the employer is regulated by HSE HR Circular 005/2014 which refers to S.I. No. 124/2014 Public Service Management (Sick Pay) Regulations 2014. Regulations 9 and 10 of the Circular deal with pay while on sick leave and provide that an employee is entitled to three months full pay and three months half pay in any rolling four year period. As the employer is a Section 28 agency funded by the HSE it must adhere to the HSE circulars relating to the running of its service. The employer cannot accede to such a claim as the employee received all her sick pay benefits and it would have significant ramifications not only within its own service but is, an attempt to renegotiate a nationally approved sick pay scheme in the health sector. In addition, the grievance procedure does not cover matters relating to improvements in pay or existing terms and conditions of employment which are of general application, i.e. matters appropriate to the collective bargaining process. Loss of Earnings / Sick Pay Scheme The sick pay scheme operated by the employer is regulated by the HSE HR Circular 005/2014. An employee is entitled to three months full pay and three months half pay in any rolling four year period. This scheme applies to the employees of the employer and throughout the HSE health sector. When the employee went on sick leave in November 2019 she had already used a considerable amount of paid sick leave, as she was entitled to do due to genuine illness. When an employee exhausts their full period of paid sick leave there is an option to apply for Temporary Rehabilitation Remuneration (TRR). This payment may be awarded where there is a reasonable prospect that the employee will be able to return to work. Having carefully considered the written and oral submissions I find that the employee received all her entitlements under the sick pay scheme and that she did not provide the information required to be awarded the TRR payment. No credible explanation was provided as to why the TRR information was not completed by the employee. Had the employee applied for and been awarded TRR she would have considerably improved her financial position. The sick pay scheme is regulated by the HSE HR Circular 005/2014. The awarding of additional benefits pay and/or sick leave, to an individual employee, over and above the terms of that scheme could have consequences far beyond an individual complaint and therefore cannot be recommended. The union stated that this dispute was about an employee’s loss of earnings while an internal investigation took place. However, the employee was medically certified during the whole period from November 2019 to May 2020, therefore in my opinion she was on sick leave. I recommend that the employee accepts that she was on medically certified sick leave between November 2019 and May 2020 and has received all the benefits that she was entitled to receive under the sick pay scheme. The employee was not awarded TRR as she did not provide the information required. I recommend that the employee and employer discuss if a late application for TRR is possible at this stage. Incorrect Payroll Information The employee being aware of the terms of the sick pay scheme made an enquiry with the Payroll section on 26 November 2019. She stated she was on work related stress leave and she needed to know “exactly where I stand with sick leave please, as to how much I have if any”. She received a reply confirming that she was “entered as sick leave for 70 hours. Will be notified whenever you are going on to half pay.” In my opinion, based on the answer provided to her, the employee has a legitimate expectation that while on sick leave she would be notified before she would be reduced to half pay. That did not happen. On 06 January 2020 the employee receive a letter from her line manager stating “Please note that as of the 30.12.2019 you will be on unpaided sick leave…” This blunt letter came from the line manager about whom she had a complaint under investigation. The employee queried this letter with Payroll and the following day received an equally blunt reply “That is correct as you have exceeded your full entitlement over the previous 4 years”. There was clearly an error in the information provided to the employee on 26 November 2019. Anyone may make a mistake but, no explanation of or apology for this error was ever given to the employee. In my opinion the handling of this error was particularly insensitive given the employee’s circumstances. The employee came off pay without the expected notice in January, a month that most people find financially challenging. I accept that the employee experienced a very difficult time when she was suddenly informed in January that she was now off pay. In view of the insensitive way this error was handled, and the financial difficulty experienced by the employee in January 2020 I recommend the employer pays compensation of €1,200.00 to the employee. I recommend that employee accepts such compensation to bring this dispute to conclusion. This recommendation is made in the particular circumstances of this dispute, is not connected with the sick pay scheme and is not a precedent in connection with any other sick pay benefit claims. |
Decision:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
CA-00041573-001 Dispute referred under Section 13 of the Industrial Relations Act, 1969. Loss of Earnings / Sick Pay Scheme Having carefully considered the written and oral submissions I find that the employee received all her entitlements under the sick pay scheme and that she did not provide the information required to be awarded the TRR payment. No credible explanation was provided as to why the TRR information was not completed by the employee. Had the employee applied for and been awarded TRR she would have considerably improved her financial position. The union stated that this dispute was about an employee’s loss of earnings while an internal investigation took place. However, the employee was medically certified during the whole period from November 2019 to May 2020, therefore in my opinion she was on certified sick leave. I recommend that the employee accepts that she was on medically certified sick leave between November 2019 and May 2020 and has received all the benefits that she was entitled to receive under the sick pay scheme. The employee was not awarded TRR as she did not provide the information required. I recommend that the employee and employer discuss if a late application for TRR is possible at this stage. Incorrect Payroll Information In my opinion, based on the answer provided to her by payroll, the employee had a legitimate expectation that while on sick leave she would be notified before she would be reduced to half pay. That did not happen. There was clearly an error in the information provided to the employee on 26 November 2019. Anyone may make a mistake but, no explanation of or apology for this error was ever given to the employee. In my opinion the handling of this error was particularly insensitive given the employee’s circumstances. The employee came off pay without the expected notice in January, a month that most people find financially challenging. I accept that the employee experienced a very difficult time when she was suddenly informed in January that she was now off pay. In view of the insensitive way this error was handled, and the financial difficulty experienced by the employee in January 2020 I recommend the employer pays compensation of €1,200.00 to the employee. I recommend that employee accepts such compensation to bring this dispute to conclusion. This recommendation is made in the particular circumstances of this dispute, is not connected with the sick pay scheme and is not a precedent in connection with any other sick pay benefit claims. |
Dated: 13th September 2021
Workplace Relations Commission Adjudication Officer: Maria Kelly
Key Words:
Loss of earnings Sick pay scheme |