Complainant

Respondent

Anonymised Parties

An Instructor/Supervisor

A Charitable Service

Representatives

 Fórsa Trade Union

Ibec

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-00043030-001

12/03/2021

The dispute was referred to the Workplace Relations Commission on 12th March 2021 and relates to the employee’s absence from work from March 2020 and the classification of this absence as certified sick leave. The dispute also concerns the employee’s earning for the period in question which was reduced to take account of employee’s entitlement to Illness Benefit from the Department of Employment Affairs and Social Protection. The employee is seeking that he be paid the week’s pay that was withheld from him in March 2020 and the subsequent deductions relating to the value of Illness Benefit payable to him had he claimed Illness Benefit for the period of his absence. The employee is further seeking that his sick leave record be amended to reflect the fact that he was not absent on sick leave for the seven weeks in question.

The employee was working as a Supervisor/Instructor in the employer’s Autism Spectrum Disorder Unit when he advised his manager on 15th March 2020 that he was going to attend his GP in connection with concerns he had about attending work due to his health status and Covid-19.  The employee did not attend work on 16th March 2020 and subsequently furnished his employer with a medical certificate detailing the GP’s opinion not to attend work.  When the employee learned that day services would not be offered by the employer going forward, he further communicated with the area HR Manager on 17th March 2020 outlining his wish to return to work in a role where his health would not be at risk. 

The employer arranged for the employee to be assessed by its Occupational Health partner and, following a telephone consultation on 18 March 2020, an occupational health assessment report issued stating that the employee was fit to remain at work. On foot of this, the employee requested the employer to carry out a risk assessment of his workplace, its possible effect on his health and requested that he be placed on special leave with pay while the risk assessment was being undertaken.  The employee’s line manager contacted him on 20 March 2020 and, whilst expressing concern for the employee’s health and wellbeing, told him that he did not meet the criteria for special leave with pay and that he would be placed on normal sick leave.

The employee informed his line manager that he was not sick and further declined an offer to be returned on the pay system as being on annual leave. In mid-April 2020 the employee provided his employer with a letter from his consultant which confirmed the employee’s medical conditions and outlined the ideal work environment for him.  A further occupational health assessment on 20 May 2020, outlined appropriate measures to accommodate the employee’s return to work. 

On foot of the occupational health report, the employer’s HR manager contacted the employee, and a meeting took place between the employee, his line manager and the HR manager which resulted in the employee returning to work in a revised setting on the 29 June 2020.  

The employee appealed to the employer’s Head of Human Resources in September 2020 the decision to classify him on the employer’s pay system as being on certified sick leave during pay periods 08/20 to 11/20 and requested reimbursement of the sums deducted and amendment of his sick leave record. 

In December 2020, the employer communicated its decision that the complainant did not meet the criteria for paid special leave and that the employee’s placement on its sick pay scheme was appropriate having regard to the medical certificates from the complainant’s GP.  

The employee relies on the public service arrangements in place at the relevant time to deal with flexible working arrangements and leave associated with Covid-19 to claim that the employer did not make correct provision for him in March 2020 and subsequently, which has resulted in a loss of earnings and a recording of certified sick leave where the employee was not sick and did not submit a claim for Illness Benefit to the Department of Employment Affairs and Social Protection. 

The employer contends that there is no merit in the employee’s referral, and it should be dismissed. The employer stated that it followed Government guidelines in relation to covid related absence from work at the time and that the employee was placed on certified sick leave and paid accordingly in circumstances where he had not attended work since being deemed fit by Medmark on 18 March 2020. Further to Medmark’s advice, the employee’s line manager advised the employee that he was expected to attend work and further advised that he would not be working with service users who had or were suspected of having Covid-19.  The line manager also informed the employee that if needed he should apply for paid annual leave or, if sick, to provide a GP cert.  The area HR manager advised the employee on 24 March 2020 that he should contact his manager as soon as possible to confirm his return to work and that his manager would engage with him to ensure appropriate deployment in line with relevant guidelines.  The employee did not contact his manager.  The employee was not paid for the week beginning 22 March 2020 because of his absence from work despite having been deemed fit by Medmark.  The employer did not consider a letter from the employee’s consultant to indicate that the employee was unfit for work and/or that the employee should cocoon.  The employer placed the employee on paid certified sick leave during four fortnightly pay periods from 29 March 2020 rather than not pay him at all for the period of his absence. The employee was referred for a further occupational health assessment on 20 May 2020 and by way of a compromise to resolve the dispute the employee was put on Paid Special Leave from the 20 May 2020 until his return to work in an appropriate environment at the end of June 2020.

The within dispute concerns the employer’s actions in and around the employee’s absence from work during the early stages of the Covid 19 pandemic from mid-March 2020 until the end of May 2020, the non-payment of wages to the employee in respect of the week beginning 22 March 2020, the employer’s classification of the employee as being on certified sick leave over the course of four pay periods and the deduction of the value of Illness Benefit that would have been payable to the employee had same been claimed from the Department of Employment Affairs and Social Protection (DEASP).

The employee did not attend work on 15th March 2020 due to concerns relating to Covid 19 and his

“at risk” status as a result of underlying health conditions. The employee was following the guidance of his G.P. in relation to this matter. The employee expressed a desire to return to work on 17 March 2020 in a role where his health would not be at risk. On the 18 March 2020, whilst Medmark acknowledged that the employee’s medical condition rendered him vulnerable if in contact with Covid-19, it deemed him fit for work.  On 20 March 2020, the employee reiterated to his line manager his wish to return to work if he could be given some assurance about being able to protect himself in a manner appropriate to his medical conditions.

On 24th March 2020, the employer requested the employee to contact his manager as soon as possible to confirm his return to work.  In an email to the employee of 3 April 2020, the employer justified its decision not to pay him for the week beginning Sunday 22 March 2020 by reference to the Medmark assessment and the employee not presenting for work. In my view, withholding the first weeks pay from the employee was unfair especially in the difficult and unprecedented circumstance pertaining at the time around the pandemic and the uncertain and worrying situation that the employee found himself in. The employee was subsequently paid certified sick leave payments (Salary minus DEASP entitlements) in circumstances where he was not certified as unfit to work, was not submitting medical certificates and had not claimed illness benefit from the DEASP.

The employer stated that it chose to pay the employee sick leave entitlements during this time when he chose to remain off work, rather than not paying him at all.  It appears that the employer accepted a letter from the employee’s GP of 16 March 2020 and a letter from the employee’s consultant of 16 April 2020 as satisfactory certification for the purposes of sick leave classification and the subsequent payment of sick leave entitlements.

The employee expressed concerns in mid-March 2020 to his line manager and the area HR manager regarding his vulnerable health status.  The employee also informed the employer very early on that he was keen to return to work in a suitable role where his health would not be at risk. I am of the view that there was a lack of engagement on the part of the employer on the substantive matter of the employee’s return to work in a safe work environment. However, communication between employer and employee works both ways and I consider that the employee also contributed to the impasse in this case, for example, by his lack of response and engagement on foot of the HR manager’s email of 24 March requesting him to contact his manager.

In all of the circumstances of this dispute, and having considered the submissions of both parties, I recommend that the employee be paid the sum of €1,113.05 relating to the salary payment withheld in respect of pay period 07/20. 

I further recommend that the employee’s sick leave record be amended, and the seven-week period of certified sick leave be removed on the basis that the employee was not certified as unfit to work and was not submitting medical certificates in respect of that period.  However, as the employee was not in work for this period but was paid the majority of his salary (less DEASP entitlements), I do not recommend the reimbursement of these deductions to him.