Complainant

Respondent

Parties

Slawomir  Debski

Kepak Longford Kepak Group

Representatives

Rosemary Mallon B.L. instructed by Gerald O'Donnell Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00043454-001

07/04/2021

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 4(1) of the European Communities (Occurrence Reporting in Civil Aviation) Regulations 2020

CA-00043454-002

07/04/2021

The complainant suffered a workplace accident on August 2nd, 2019, and was certified as unfit to resume work until January 2021.  

A dispute arose between the parties about certification of his fitness to return to work, following which he resigned.

As noted above, the complainant suffered a workplace accident on August 2nd, 2019, and  was certified as unfit to resume work until January 2021.

Prior to returning to work he suffered an episode of back pain. 

The respondent would not accept medical evidence that he was fit for work, and he believes the respondent made every effort to delay and/or refuse his return to work because he commenced a personal injury claim.

He believes the respondent penalised him for taking a claim.  He was required to resign his position with the Respondent on August 15th, 2021, because he could not afford to be out of work.

When asked why he had not made the complaint earlier he attributed this to delays by Kepak and also to serious illness.

The respondent says that the complaint under the Payment of Wages Act has not been made within the prescribed time limits and is therefore not within jurisdiction.

In respect of the penalisation complaint the complainant has not identified any act which would constitute penalisation and that the complainant has not made out a prima facie case.

The respondent noted that the complainant was legally advised before he made the referral and indeed had made applications to another tribunal, so he was aware of the requirements related to time limits.

It also submits that there is no contractual entitlement to sick pay.

The respondent set out the narrative of events and relied on undisputed documentary evidence and no witness was called.

In August 2019 the complainant had an accident and returned to work after an absence of two months.  Later that year, in December, he was absent again and said that his condition was due to the accident in August. On December 17th he was told of the need to submit medical certification every two weeks.

The following March he submitted certification indicating that he was fit to return to work and on April 12th an absence management meeting was arranged for the 14th.

Some days later on April 27th the respondent sought copies of medical records and on April 30th  the complainant said he would provide these but only to a medical practitioner but in fact he did not do so.

There was further correspondence in the course of which the complainant again said he would give the records to a doctor and on May 18th he agreed to forward the records to the respondent directly.

The company looked for these a week later but in his response the complainant indicated he had changed his mind and would not do so.

The company invited him to send the records to an independent occupational health doctor where he had been examined on April 30th  but on May 30th 31st he again confirmed that he would not send the records and compounded this later on June 1st  by saying again that he would give the records neither to the respondent nor to a medical practitioner.

On June 24th the respondent sent a detailed letter to the complainant pointing out that it had previously explained to necessity for complete copy of his medical records from both Ireland and Poland in order to facilitate his return to work, but noting that he had not done so.

It specifically noted that he had not made them available to the occupational health practitioner who had examined him. The letter also pointed out that by refusing to provide his medical records and discs he was delaying his return to work.

The complainant resigned on August 15th  stating as a basis for doing so that the company had failed to facilitate his return to work after his injury in August 2019.

In summary the complainant was given every opportunity to comply with the respondent’s sick absence policy and had been given the grievance machinery procedure and the company handbook.

It is entirely reasonable for the respondent to satisfy itself that a person who has experienced injury or illness is fit to return to work.

Specifically in this case given the nature of the complainant’s illness it could not accept a simple certificate from a general practitioner and required further confirmation of the complainant’s health status and fitness to return to work.

The complainant had no entitlement to sick pay during any of his absence on sick leave, and the period he has identified as the cognisable period is not within the time limits for a complaint. Indeed, as is clear from this all evidence of the complainant resigned to take up immediate employment elsewhere.

The narrative of events is well set out in summary in the respondent’s submission and was not in dispute.  It was well supported by correspondence and documentation between the parties.

The dispute revolves around the complainant’s refusal to comply with the respondent’s requests for medical certification of his fitness to return to work to a standard that would be acceptable.

It is hard to understand what the complainant hoped to achieve by his stubborn and long running resistance to his employer’s reasonable requests in that regard.

As can be seen from the thread of documents at one stage he agreed to provide the material, at least to a medical practitioner and then, for some reasons that was not explained, changed his mind.

I find that the respondent acted entirely reasonably throughout all this time, and indeed showed a degree of forbearance.

In commenting on the complainant’s actions, I need go no further than say that he demonstrated very poor insight into his own best interests. If he was confident that he was, in fact, fit to return to work, knowing the only obstacle to doing so was complying with the reasonable requirements of his employer, he ought to have done so.

Specifically, regarding his complaint under the Payment of Wages Act the complainant faces two obstacles.

If his complaint is that he was unreasonably denied the right to return to work, then this is not well-founded. He is entirely the author of his own misfortune in that regard for the reason stated.

I accept the respondent‘s submission that It was reasonable for it to satisfy itself that a person who has experienced injury or illness is actually fit to return to work and that he was given every opportunity to comply with the respondent’s sick absence policy and had been given the grievance machinery procedure and the company handbook.

If the complaint is that he should have been paid while on sick leave this fails also as the respondent did not have a sick pay scheme. He has not made out any case under the Payment of Wages Act.

Regarding the complaint of penalisation, no details were provided of the alleged act of penalisation.

In a related, (separate) complaint (also of penalisation), the complainant stated on the complaint form that he believed he had been penalised for ‘taking a claim’.

Immediately before this he says on the form that he believed ‘the Respondent made every effort to delay and/or refuse my return to work because I commenced a personal injury claim’ and it seems reasonable to assume that the complainant was linking these two statements.

However, his actual complaint of penalisation was made under Schedule 4(1) of the European Communities (Occurrence Reporting in Civil Aviation) Regulations 2020 and while this may have been made in error there was no evidence of any complaint having been made that would provide the necessary basis for any subsequent act of alleged penalisation.

Accordingly, his complaint of penalisation is not well-founded.

For the reasons set out above neither of the complaints CA-00043454-001 or 002 are well founded.

Payment of wages, penalisation