Complainant

Respondent

Anonymised Parties

Chef

Hospital

Representatives

 SIPTU

 HR

Act

Dispute Reference No.

Date of Receipt

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

CA-00041378-001

01/12/2020

The dispute is concerned with the decision of the employer not to grant critical illness pay where discretion is allowed.

In their response to the complaint the employer did say that the employee had not exhausted the procedure. However, on receipt of the employee submission they could see there was correspondence which indicated the procedures were fully utilised, noting that the internal management correspondence was not copied to either the union of HR in the hospital when it was issued. The preliminary point regarding procedures does not therefor arise.

The employee is a long-standing employee at the hospital. She was out sick from October 2018 until November 2020 during which time she exhausted her entitlement to sick pay under the employer sick pay scheme. For some of that period in 2020 she was absent due to surgery. Before that period, she was deemed fit for partial duties by social welfare and so did not have full social welfare sick pay benefits either. The Trade Union made representations on her behalf, first under the reasonable accommodation terms of the scheme and later under the terms which allow discretion to management in exceptional circumstances. A reasonable accommodation in her own post or duties was not offered. Alternative roles were not acceptable to the employee. Following assurances from a named manager that she would support an application under the relevant section of the scheme, the employee was confident that the application under the discretionary element would be approved. However, to her disappointment, the application was not approved. She processed her grievance under the employer grievance procedure as set out in the scheme but was refused at each stage. At no stage did the employee say she qualified under the terms of the CIP-except the discretionary element which is what she sought.

The trade union also submitted that the employer breached their own grievance procedure when they did not meet with the employee or offer her the right to have a support person or trade union rep with her-both of which form part of the procedure. These were not trivial departures from the agreed procedure. At one stage she was given conflicting and inaccurate information regarding the stages of the grievance procedure to be followed.

The decisions made at three levels of management seriously impacted on the employee-her well being and financially. SIPTU sought restoration of sick benefits for the period comprehended by the grievance.

In October 2019, occupational health deemed the employee unfit for normal or modified duties in March 2019. At the same time, the employee applied for CIP, received in April 2019. Further medical reports followed. The application for CIP was rejected on medical grounds as not meeting the criteria of the relevant section of the protocol. She was offered alternative work but declined. A further report issued in November 2019 reiterated that the employee was unfit for her normal duties and did not qualify for CIP.

Regarding the discretionary element, the nature of the illness was described as moderate; she did not meet the other medical elements to be assessed i.e. surgery, additional medical complications; a hospital patient in stay for 10 days or more. In summary the employee’s situation did not meet the medical criteria or other criteria which came close to being met. Under the scheme a manager is specifically excluded from taking financial circumstances into account.

The Trade Union/employee never raised the absence of representation at any stage prior to the submission for the hearing, including in the complaint form.

Concession of this claim could mark a precedent.

There really is no role for an adjudication officer in second guessing decision makers in deciding whether or not discretion, which is just that discretion, was fairly exercised by the employer in medical matters unless the employee can point to a specific and serious failure to follow the guidelines laid down in the scheme. And some of those guidelines will not be obvious to the employee or the third party such as the need for consistency as set out on page 6 of the scheme. But in this instance, and the employer agreed at the hearing, there is a complete absence of any reasoning open to scrutiny provided by successive managers as to why the appeal was not allowed. In this regard I do not hold with the trade union complaining about the absence of representation. The employee was provided with a copy of the grievance procedure. She should have arranged for her representation. Alternatively the union, having represented the employee at the outset and then knowing the case was going through the procedure, should have made it their business to be there.

Nonetheless the case gives cause for a real concern about the absence of reasoning for the decisions: - ‘I am notaware of any other relevant information to warrant a management discretion’ and : Following carefulconsideration of the guidelines regret I am not in a position’ and ‘Following a comprehensive review of your file and related documentation, In regret to inform you that I am not in a position to support your submission and therefore I am upholding the original decision made by X’    ‘I have reviewed the documentation ….I  am upholding the decision of X ‘ are not reasons-they are simply rejections- unexplained or reasoned. And having had occasion to observe this absence of clear reasons in a case regarding accommodation on health grounds in this employment previously, it is repeated here-when a grievance is rejected the aggrieved employee is entitled to know why. That way they can either accept the explanation or appeal that reasoning. Here the employer was preparing to object that the employee had not exhausted the internal procedures when she had done so-yet the employer in this instance and at each stage of the grievance procedure failed to follow their own guidelines. Those guidelines at state at section 2.2:

‘The manager should communicate his or her decision to the employee in writing, briefly summarising the matters she or he considered. These reasons should demonstrate that the manager has considered all relevant considerations and has not been influenced by irrelevant considerations. Quite simply, the employer did not follow their own procedure.

As pointed out to the parties at the hearing, the role of the Adjudication Officer under this legislation is to make a recommendation with the objective of providing a basis to resolve the dispute. At the same time and as stated earlier an adjudication officer not lightly find themselves deciding on sick pay benefits. Apart from any other consideration including the possibility of setting unintentional precedents, in this case it is not really known why the claim was rejected. The first possible reasoning being provided by the HR Manager at the hearing which was interesting given she was not even made aware that the process went through the full span of the internal procedure.

The recommendation therefore is that this matter be referred back to local level to try to achieve an agreed compromise based on the specific history of this case, and the conclusions in this recommendation. If an agreement cannot be agreed, and I do urge the parties to work at finding a compromise to this long running dispute, the National HR Office should be asked to provide a person to arbitrate on the dispute.

Claim under sick pay scheme