ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00033327
Parties:
| Complainant | Respondent |
Anonymised Parties | A Cleaner | A Security Force |
Representatives | Paul Moyer Forsa | Internal HR |
Complaint(s):
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-00044112 | 17/05/2021 |
Date of Adjudication Hearing: 05/04/2022
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and 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 complaint.
Specifically, I conducted a remote hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.
Background:
The Worker is seeking for her sick leave covering the dates 8 May 2020 to the 26 June 2020 to be categorised as Special Leave With Pay because she was high risk and her Employer had not put in place the necessary protections to safeguard her health during the pandemic. |
Summary of Worker’s Case:
The Worker is employed as a Cleaner with the Employer. In May 2020, she was 65 years of age and in the High Risk Group. This was at the start of pandemic, with the government, the health advisors, employers and employees, trying to come to terms with what was happening globally, and the ever changing advice being given on how to protect ourselves and others.
The Worker suffers with hypertension. At the time her employer had not provided the basic PPE i.e. Masks, Hand Gels, Gloves etc., which left her in fear and did not feel safe for her health and life, considering her age. Her GP supported this fear and stated in two letters that she would only return to work when Covid 19 conditions were put in place. The Worker was not sick but was available for work. She sought for her sick leave covering the dates 8 May 2020 to the 26 June 2020, to be covered under the Civil Service policy, Special Leave with pay. Her employer refused to do this.
The consequence of this refusal leaves the Worker in the precarious position that future sick leave will impact her income whereby she will move to half pay and no pay because the time she was off was recorded as normal sick leave and not categorised as special leave with pay.
She is seeking her employer to now categorise that sick leave as special leave with pay.
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Summary of Employer’s Case:
Jurisdiction Section 23(1) of the 1990 Industrial Relations Act refers. Under that section which was not amended section 1(a) applies where those comprehended by the Act does not include: A person who is employed by or under the State |
Findings and Conclusions:
It is accepted that the Worker was unaware of the legislation cited by the employer and it was also noted that the union official who attended the hearing did not submit the complaint form. While it was unfortunate that the jurisdictional issue was not highlighted by the Employer to the Complainant’s current representative until the day before the hearing, the fact remains that an Adjudication Officer does not have jurisdiction to issue a recommendation in this dispute. |
Decision:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
As I have no jurisdiction in relation to this dispute, I cannot make a recommendation to resolve it. |
Dated: 21st April 2022
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
Key Words:
Civil servant; jurisdiction |