ADJ-00033741

Complainant

Respondent

Anonymised Parties

An Employee

A Local Authority

Representatives

Ger Malone SIPTU

Keith Irvine LGMA

Act

Complaint/Dispute Reference No.

Date of Receipt

Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00044546-001

10th June 2021

The dispute concerns the Complainant’s claim for extended Special Leave With Pay (SLWP) arising from his contracting Covid-19 and his prolonged illness as a result. Extended SLWT was treated separately to ordinary sick leave and would have been in addition to an initial twenty eight day SLWP period. The Respondent disputes that the Complainant was entitled to extended SLWT and maintains that the Complainant’s claim runs counter to Department of Public Expenditure (DPER) guidance at the time.

The Complainant commenced employment as a General Operative in the Local Authority on 20/4/2003. Arising from a family funeral, the Complainant was on compassionate leave from his work from 28 December 2020 and was due to return on 4 January 2021. However, on that date the Complainant’s wife tested positive for Covid-19. As a result, the Complainant contacted his Line Manager, his Area Engineer and the HR department to advise that he was self isolating due to his wife’s positive diagnosis. In addition, the Complainant’s wife sent confirmation of her positive Covid-19 test to the HR department. The HR department emailed the Complainant’s wife a form titled “COVID-19 SELF DECLARATION FORM 2 – RESTRICTED MOVEMENTS – RESIDING WITH PERSON WHO HAS COVID/COVID SYMPTOMS/CLOSE CONTACT/RETURN FROM NON-GREEN LIST COUNTRY ABROAD”.

The Complainant stated that he was self isolating from 1 January 2021, that he became very ill and was hospitalised on 13 January 2021 and tested positive for Covid-19. The Complainant continued to suffer illness which he stated was covid related and accordingly, he submitted medical certificates on an ongoing basis. Specifically, the Complainant referred to his first medical certificate which was from the hospital – dated 13/1/2021 - which covered the period “2/1/2021 to 27/1/2021 inclusive” and stated that the Complainant was suffering from  “Medical illness - Covid-19”.

The Complainant emailed the Respondent’s HR on 9 April 2021 asking that he  “would like to avail of the long term COVID payment I have been in and out of hospital since January due to prolong Covid”.  The Complainant received a letter from the Respondent’s HR executive on 12 April 2021 which informed him that on 9 April 2021 he had reached 57.5 sick leave days of full pay, that if he reached 66 days he would be placed on half pay with effect from 22 April 2021 and that if another 63.5 days elapsed the Complainant would be off pay. The Complainant responded on 16 April 2021 stating that the paid special leave arrangement for Covid-19 applied and that his illness from 1 January 2021 should be discounted from his ordinary sick leave total as it was Covid related. In his email of 16 April 2021 the Complainant also stated that “Special leave with pay for Covid-19 applies when you are advised to self isolate and are displaying symptoms of Covid-19 or you had a positive test……”.

The Complainant was granted 28 days special leave with pay due to Covid-19 from the 13th January 2021 but has been refused an extension of that leave. In that regard, the Respondent’s HR Senior Executive Officer wrote to the Complainant by letter of 15 April 2021 stating as follows:

“Upon review of the current DPER Guidance and communication in relation to Covid Special Leave with Pay, I wish to inform you that you do not satisfy the following criteria for the extended payment beyond the 28 days.

“An employee had been in the work premises at any time during the 14 days prior to commencing the self isolation period of a positive case Covid-19”.

As the last date you attended the workplace was the 27th  December 2020 you are outside of the 14 days prior to 13th January 2021 (date you tested positive) and are therefore not eligible for an extension of Special Leave With Pay beyond the 28 days”.

Thereafter, there was a sequence of representations by the Complainant/SIPTU on his behalf seeking to have the extended special covid leave granted and taking issue with the Respondent’s interpretation of the DPER guidance. 

It is the position of the Complainant that he fully complied with HSE guidance in relation to restricting his movements and self isolating from the commencement of January 2021 and that he was very ill arising from his contracting Covid-19 which necessitated hospitalisation. The Complainant submits that the hospital medical certificate submitted by him for the period  2 January to 27 January 2021 confirms “that he had Covid-19 from January 2nd…..”.  Further the Complainant submits that because he received the covid payment for 28 days effective from the 13th January 2021, the Respondent was aware and accepted that the Complainant was suffering from Covid-19 from the 2nd January 2021. If it were otherwise, the Complainant submits that he would/should have been sent to occupational health for assessment. Accordingly, the Complainant maintains that he has satisfied the DPER criteria for the granting of extended paid covid special leave, that he was on the work premises 14 days prior to commencing his self isolation and that in all the circumstances, he has been unfairly and unreasonably treated in terms of the refusal by the Respondent to grant the extended special paid leave. The Complainant outlined the details of his certified sick leave, the payments he received and stated that he was claiming €25,540.67 which represents the money he should have received if granted the extended SLWP.

The Respondent stated that on the 4th January 2021 the Complainant advised that his wife was Covid-19 positive and that he was a close contact and therefore had to restrict his movements. The Respondent stated that there was no indication at this time that the Complainant had Covid-19 or had Covid symptoms. The Respondent stated that it received a medical certificate from the Complainant on 28 January 2021 stating that he had Covid 19 which covered the period 28 January to 11 February 2021. Further medical certificates were subsequently received from the Complainant.

The Respondent stated that it wrote to the Complainant on 5 March 2021 requesting the date of his positive Covid-19 result which it stated it required in order to calculate his SLWP. The Respondent stated that the Complainant submitted his positive Covid-19 result on 10 March 2021 which showed that he had tested positive on 13 January 2021. On receipt of this information, the Respondent stated that it retrospectively allocated the Complainant 28 days SLWP for the period 13 January 2021 to 11 February 2021. Thereafter, the Complainant was transferred to ordinary sick pay from 12 February 2021.

The Respondent outlined DPER’s guidance in relation to SLWP – titled “Continuation of Special Leave with Pay for public sector employees who have contracted COVID-19” which was issued on 23 December 2020 - as follows:

1.“SLWP will continue for employees who have a diagnosis of COVID-19 and have been advised to self-isolate. In instances where an employee has a confirmed case of COVID-19, SLWP may continue for up to 28 days, where it is supported by medical certification. If an employee is still unwell after 28 days they will move to ordinary sick leave arrangements.

2.SLWP may be extended beyond 28 days for certified COVID-19 related illness in circumstances where a manager determines that all 4 criteria below are met:

·An employee had been in work premises at any time during the 14 days prior to commencing the self isolation period of a positive case of COVID-19.

·The employee provides their employer with medical evidence of a positive COVID-19 test including the date of this test.

·In accordance with the standard management referral process, the Occupational Health Physician (OHP) confirms that they are medically unfit to resume work.

·The 0HP confirms that their absence relates primarily to ongoing COVID-19 illness, and that they are accessing appropriate medical care.”

The Respondent outlined its communications with the Complainant in relation to Covid-19 and his application for extended SLWP. In that regard, the Respondent stated that the Complainant requested extended SLWP on 9 April 2021 due to him being in and out of hospital since January 2021 and to his contracting prolonged Covid-19. On 14 April 21 the Respondent wrote to the Complainant advising as follows:

“Upon review of the current DPER Guidance and communication in relation to Covid Special Leave with Pay, I wish to inform you that you do not satisfy the criteria for the extended payment beyond the 28 days.

In order to satisfy the criteria you would have had to be in the work premises at any time during the 14 days prior to commencing the self-isolation period of a positive case of Covid- 19.

As the last date you attended the workplace was the 27th December 2020 you are outside of the 14 days prior to 13th January 2021 (date you tested positive) and are therefore not eligible for an extension of Special Leave With Pay beyond the 28 days”.

Further communication ensued including on 31 May 2021 when the Complainant’s SIPTU representative emailed a photocopy of a medical certificate dated 13th January 2021 stating “medical illness - Covid-19 2nd January 2021 – 27th January 21”. The Respondent stated this was the first time it was provided with this medical certificate or made aware of its existence and that the Complainant had not provided any documentation that he was self isolating prior to then though it acknowledged that the Complainant had informed the Respondent that he was a close contact. In its letter to the Complainant of 28 June 2021 the Respondent sought the original medical certificate for the period to 2/1/2021 to 27/1/21. The Respondent stated that it was never provided with the original of this medical certificate.

The Respondent wrote again to the Complainant on 16 September 2021 confirming that an appointment had been made with the Respondent’s Occupational Health Service (OHS) for 30 September 2021 via telephone. The Respondent stated that the Complainant did not attend this appointment. A further appointment was made with the 0HS for 17 November 2021 but the the Complainant failed to attend this appointment also. At the adjudication hearing the Respondent clarified that these appointments were unrelated to the extended SLWP matter.

The Complainant returned to work on 28 February 2022.

The Respondent stated that the Complainant has not satisfied the Respondent that he contracted Covid-19 on 2 January 2021, that he did not provide the original medical certificate for this period of absence, that he only alleged he contracted Covid-19 on 2 January on the 31st May 2021, that he tested positive on 13 January 2021 and that he did not attend scheduled medical appointments. Further, the Respondent stated that that there was no automatic entitlement to extended SLWP. Accordingly, it is the position of the Respondent that the Complainant was paid correctly in accordance with its policies and procedures in relation to absence and DPER guidance in relation to SLWP.

I have considered the submissions and documentation in relation to this matter including the documentation received post hearing. In particular I note:

·DPER’s guidance in relation to SLWP – titled “Continuation of Special Leave with Pay for public sector employees who have contracted COVID-19” issued on 23 December 2020;

·The various medical certificates submitted by the Complainant and specifically the certificate titled “MEDICAL CERTIFICATE Out-Patients/ED/AMAU dated 13/1/2021 which certified that the Complainant was suffering from “Medical Illness – Covid 19” from 2/1/21 to 27/1/21;

·The various communications including emails and text messages between the Complainant and the Respondent. In this regard, I note the Complainant’s text message to the Respondent’s Area Engineer of the 4th January 2021 wherein he stated that he had “to isolate because I came into close contact with people at my partner’s father funeral who subsequently tested positive…..” and the Respondent’s letter to the Complainant of the 5th March 2021 seeking confirmation of his positive COVID-19 diagnosis;

·The written and oral submissions including copy of a text message from the HSE which confirm that the Complainant tested positive for Covid 19 on 13  January 2021.  

In his email to the Respondent of 16 April 2021, the Complainant argued that “Special leave with pay for COVID-19 applies when you are advised to self-isolate and are displaying symptoms of COVID-19 or you had a positive test….”. This does not appear to be in dispute as the Complainant was granted 28 days SLWP for the period 13 January 2021 to 11 February 2021. Rather, this dispute concerns the refusal to grant extended SLWP which in my view centres on the interpretation of DPER’s guidance and the Complainant’s medical certificate of 13 January 2021. Paragraph 2 of DPER’s guidance is very specific in terms of requiring an employee to have been “in the work premises at any time during the 14 days prior to commencing the self isolation period of a positive case of COVID-19”.  On the 4th January 2021 the Complainant stated he was isolating as he was a close contact, his medical certificate of the 13th January 2021 stated that he was suffering from Covid-19 medical illness from the 2nd January 2021 – however his positive test result was dated 13 January 2021. From my consideration of the HSE’s guidance on Covid-19 a person can have symptoms and be ill with the virus prior to being tested. However, for the purpose of granting extended SLWP I consider that DPER’s guidance requires evidence of a positive test and presence on the work premises at any time during the 14 days prior to the date of the test.

Accordingly, the question is whether the Complainant was on the work premises at any time in the 14 day period prior to the 13th January 2021/date of the positive test? The Complainant was on legitimate compassionate leave from the 28th December 2021 and there was a bank holiday – namely New Years Day. In my view the period of compassionate leave and the 1st January 2021 should be excluded from the calculation of the fourteen day period since these are days the Complainant would not have been at work in any case. I consider that this interpretation is not inconsistent with DPER’s guidance which explains the work premises as including any location outside the home “an employer requires an employee to attend as part of the role….” – clearly an employee is not required to attend the work premises during a period of compassionate leave or on a bank holiday. Consequently, I make the below recommendation.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute and accordingly I recommend:

·That the Respondent recalculate the period of 14 days excluding the period of compassionate leave and the bank holiday for New Years day 1/1/2021;

·That based on the recalculation the Complainant be granted extended SLWP in accordance with DPER’s guidance and the Respondent’s usual practice;

·That further discussion take place between the parties in order to agree and finalise the Complainant’s sick leave days, extended SLWP and the financial implications.

Extended Sick Leave With Pay due to Covid-19