ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00036465
Parties:
| Complainant | Respondent |
Anonymised Parties | A Worker | Residential Support Service Provider |
Representatives | Shonagh Byrne SIPTU | Triona Cody O'Mara Geraghty McCourt |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
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Date of Adjudication Hearing: 09/09/2022
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll
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.
Background:
The worker alleges that she is entitled to and meets the criteria for the Respondent’s Critical Illness payment. The Respondent alleges that she does not meet the criteria. |
Summary of Complainant’s Case:
The Worker is appealing the outcome of her grievance relating to the decision of the Respondent not to apply the terms of the Critical Illness Protocol to her during her periods of sick leave in 2021 caused by serious long covid symptoms. The Worker commenced employment with the Respondent on 4th July 2017 and is employed as a Care worker. She works 37.5 hours per week and earns €2600 per month and continued to work during the Covid pandemic as a frontline worker. On the 25th October she contracted covid and was absent from work from then. Unfortunately, she developed long covid and was out of work for a period of time from 25/10/20-31/12/20. The Worker was paid during this time under the Sick pay scheme. She then had further periods of absence due to the impact of long covid on her health and was out sick with long covid related issues including serious respiratory issues in January 2021, and from 25 March- 1st April 2021. She was hospitalised from 30 May- 3 June and was also absent from work from 30 April 2021-to the end of March 2022. The Worker emailed HR on 17th June 2021 seeking information relating to her pay. HR advised by return email that she had exhausted her sick leave entitlement. The Worker then advised by email on 1/7 that she wanted to apply for critical illness benefit. Corporate Health Ireland (Occupational Health) reviewed her application for Critical Illness cover but did not medically assess or meet with Ms R in person. There was no direct contract between CHI and The Worker. The Respondent using its discretion, did provide the Worker with an additional 28 days sick pay but advised that she did not qualify for critical illness benefit. The Worker then lodged a grievance on 1/7 relating to the decision by the Respondent that she did not qualify under the criteria for Critical Illness payment. The grievance hearing took place on 29th July 2021 and was heard by Ms. D Head of Human Resources. The Worker was accompanied by her Shop Steward. The outcome of the grievance meeting was issued on 30th July 2021. The grievance was not upheld. The Worker appealed the outcome of her grievance to the Chief Executive Officer on 3 September 2021 on the grounds that she contended that she met the criteria for extension to Special Leave with pay beyond 28 days as set out in Section 4.4 of HSE Circular 025 2021 and also that she meets the criteria for extension to paid sick leave as set out in Appendix A of HSE circular 014/2018. Both circulars were presented as supporting documentation. The appeal hearing took place 30th September 2021 via Zoom. The Worker was represented by SIPTU. The outcome of the grievance was issued on 4th October 2021 and the grievance was not upheld. The Worker is seeking to be compensated with her loss of earnings for the period of time she was absent with long covid and not in receipt of pay. She was absent from the August 2021 to end of March 2022. This equates to approximately €21,000.
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Summary of Respondent’s Case:
The Respondent is a provider of residential support services and is a section 38 agency. The Worker commenced employment with the Respondent on 4 July 2017 as care staff in day services. In or around October 2020, the Worker became ill with Covid 19 and thereafter developed respiratory complications. She was absent from work on sick leave from 25 October 2020 to 31 December 2020. Thereafter, she was absent from work on sick leave on 20 January 2021, from 22 January 2021 to 31 January 2022, on 15 March 2021, and from 25 March 2021 to 1 April 2021. She was hospitalised from 30 May 2021 to 03 June 2021. The Worker was absent from work on sick leave from 30 April 2021 to 31 March 2022 and returned to work in April 2022.By email of 17 June 2021, she contacted Ms D, expressing concern about her pay. During her employment she had a high level of sick leave and when Ms D looked into the records, she confirmed that she had exhausted her sick pay entitlement under the normal sick pay scheme. By email of 1 July 2021, she advised that she wished to apply for critical illness benefit. In or around 8 July 2021 she was assessed by Dr B of Corporate Health Ireland in respect of her application for critical illness payment. Dr B certified that the Worker did not meet the criteria for critical illness payment but recommended that she be approved under managerial discretion. Dr B also acknowledged that the authority to grant or refuse an application for critical illness payment rests with the employer. On foot of Dr B’s report, the Respondent extended her sick pay by 28 days, on a discretionary basis.
By email of 23 July 2021, the Worker advised that she wished to enter into a grievance over the decision, pursuant to the Respondent’s Grievance Procedure. Ms D, Head of Human Resources, acknowledged The Worker’s grievance relating to the decision that she did not qualify for critical illness benefit.
A meeting took place with Ms D, on 29th July 2021, in relation to the Worker’s grievance. The Worker was accompanied by her shop steward. Ms D established that the matter for discussion was The Worker’s grievance relating to the decision that she did not qualify for critical illness payment but recommended manager discretion and noted that the Worker was requesting additional pay to be applied. Ms ’s decision was to uphold the application of 28 days of discretionary sick pay. It was noted that the Worker had exhausted her normal sick pay benefit of 183 days over 4 years and had received 10 weeks paid covid related absence from 25 October 2020 to 31 December 2020. The Worker was advised of her right to appeal the decision to the CEO, Mr C or that she could refer the matter to an appropriate third party in line with stage 4 of the Grievance Procedure.
The Worker appealed the Grievance outcome decision to Mr C on the grounds that: a. She was of the view that she meets the criteria for extension to Special Leave with pay beyond 28 days as set out in section 4.4 of HSE HR Circular 025 2021 b. She was of the view that she meets the criteria for extension to be paid sick leave as set out in Appendix A of HSE HR Circular 014 2018 She sought that an extension of sick pay be awarded to her in the circumstances.
An appeal meeting took place with Mr C on 30 September 2021. The Worker was accompanied by her SIPTU official. Mr C did not uphold the Worker’s appeal, being satisfied that the Respondent had fully complied with the relevant guidelines regarding the treatment of her absence for Covid 19 in 2020, had observed the organisation’s absence management policy and had further applied fair discretion in regard to her current period of absence. The Worker was advised that she could appeal Mr C’s decision through referral to an appropriate third party.
The Worker seeks an extension to special leave with pay beyond 28 days as set out in section 4.4 of HSE HR Circular 025/2021. The said section provides as follows:
“4.4 SLWP may be extended beyond 28 days for certified COVID-19 related illness in circumstances where a manager determines that all four criteria below are met: (i) 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 of COVID-19. The work premises includes any location, outside the home, an employer requires an employee to attend as part of their work role, e.g. in community settings, home visits. The attendance at the work premises/on site must have been known to and/or approved by the manager in advance.
(ii) The employee provides their employer with medical evidence of a positive COVID-19 test including the date of this test.
(iii) In accordance with the employer’s standard management referral process, the Occupational Health Physician (OHP) confirms that the employee is medically unfit to resume work. How this will work in practice in Section 38 organisations will be based on the normal arrangements that apply for medical referrals to determine an employee’s fitness to resume work during sickness absence.
(iv) The OHP confirms that the employee’s absence relates primarily to ongoing COVID-19 illness, and that they are accessing medical care.
The respondent argues that the section does not apply to The Worker as she did not meet the mandatory requirement at 4(ii) i.e. to provide medical evidence of a positive Covid-19 test. In addition, it is submitted that the employee’s absence does not relate to ongoing Covid 19-illness as required by 4 (iv), but rather to respiratory complications that she developed “since her Covid-19 infection”.
Further and/or in the alternative to the foregoing, it is submitted that the use of the word “may” (underlining in above paragraph is my emphasis), means that any extension to sick pay, is discretionary, as specifically highlighted by Dr B.
The Worker also asserts that she meets the criteria for extension to be paid sick leave as set out in Appendix A of HSE HR Circular 014/2018. However, the Occupational Health advisor did not advise that the criteria were met as required by Section 2.1.4 of the said Appendix A and The Worker did not fall within the characteristics set out in paragraph 2.1.4(ii) thereof, being: o Acute life threatening, physical illness. o Chronic progressive illness with well-established potential to reduce life expectancy. o Major physical trauma ordinarily requiring acute operative surgical treatment. o Inpatient hospital care for two consecutive weeks or greater,
It is argued that, therefore Appendix A of HSE HR Circular 014/2018, similarly does not apply to The Worker. Without Prejudice to the submission that the HSE HR Circulars relied upon by the Worker imply do not apply her.
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Findings and Conclusions:
This dispute concerns one issue, whether or not the Worker meets the criteria to be eligible for the Critical Illness Payment. The Worker had several periods of absence due to Covid and Long Covid from 25th October 2020 to April 2022. She was paid 68 days sick pay, together with a further discretionary 28 days payment. Her claim now is for the period of time commencing August 2021 to April 2022. Her loss amounts to approximately €21,000.00.
The Workers relies on Circulars 025/2021 and 014/2018.
Circular 025/2021 “ 4.4 SLWP may be extended beyond 28 days for certified COVID-19 related illness in circumstances where a manager determines that all four criteria below are met:
(i) 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 of COVID-19. The work premises includes any location, outside the home, an employer requires an employee to attend as part of their work role, e.g. in community settings, home visits. The attendance at the work premises/on site must have been known to and/or approved by the manager in advance.
(ii) The employee provides their employer with medical evidence of a positive COVID-19 test including the date of this test.
(iii) In accordance with the employer’s standard management referral process, the Occupational Health Physician (OHP) confirms that the employee is medically unfit to resume work. How this will work in practice in Section 38 organisations will be based on the normal arrangements that apply for medical referrals to determine an employee’s fitness to resume work during sickness absence.
(iv) The OHP confirms that the employee’s absence relates primarily to ongoing COVID-19 illness, and that they are accessing medical care.
The Respondent argues that the section does not apply to the Worker as she did not meet the mandatory requirement at 4(ii) i.e. to provide medical evidence of a positive Covid-19 test. They also argue that her absence does not relate to ongoing Covid 19-illness as required by 4 (iv), but rather to respiratory complications that she developed “since her Covid-19 infection”. The Worker agues that the circular should apply to her but does not put forward any evidence, medical or otherwise or any solid reasoning as to why it should apply to her.
The Worker also argues that she meets the criteria for extension to be paid sick leave as set out in Appendix A of HSE HR Circular 014/2018, Section 2.1.4 states: o Acute life threatening, physical illness. o Chronic progressive illness with well-established potential to reduce life expectancy. o Major physical trauma ordinarily requiring acute operative surgical treatment. o Inpatient hospital care for two consecutive weeks or greater.
She argues that long covid was/is an unknown new disease and that the long-term consequences of contracting it are still being researched to this day. It was within the Respondent’s discretion to make the decision to pay her. Due to her ongoing symptoms, she was unable to work. The Respondent states that none of the criteria set out in 2.1.4 apply to the Worker.
I note that the worker now takes issue with the fact that she was not medically examined prior to the CHI (Dr B) making its decision. However, it is accepted by the Worker that she did not complain or raise a grievance about that until her submissions were being prepared for this hearing.
Having carefully considered the two circulars relied on by the Worker, I find that Circular 025/2021 is clearly and unambiguously only relevant to circumstances where a worker has contracted the Covid 19 virus and has a positive test result and is suffering from the symptoms of the actual virus. Circular 014/2018 is only relevant to an acute life threatening illness, chronic progressive illness, major physical trauma or inpatient care exceeding two weeks. There is no medical evidence before me that could lead me to conclude that the worker’s ongoing issues met any of those criteria.
On that basis I find that neither of the circulars apply to the Workers situation and as a result I am recommending that the worker accept the appeal officer’s decision.
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Decision:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.]
I recommend that the worker accept the decision of the appeal’s officer. |
Dated: 13/09/2022
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll
Key Words:
Long Covid, Critical illness payment, HSE circulars. |