Worker

Employer

Anonymised Parties

A Worker

A Local Authority

Representatives

Ger Malone

SIPTU

Amanda Kane Local Government Management Agency (LGMA)

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-00044541

10/06/2021

The Worker commenced employment with the Employer in 1986/1 January 1987 and holds the position of worker driver/Driver B. The background to the dispute was the Covid-19 pandemic arising from which the Worker claimed that the Employer engaged in deficient health, safety and well-being practices and multiple breaches of its duty of care. These claims were strongly disputed by the Employer.

I have summarised the specific issues which comprise the Worker’s dispute with the Employer as follows:

1.       The Worker stated that on 30 March 2020 he and his colleagues were stood down from work due to the Covid-19 pandemic. However, on that day he received a phone call from his supervisor advising that he was required to come to work and when he arrived he found other employees there also. He was advised to bring two barriers from one location to another and when he was about to head home he was asked to bring a colleague on a lawnmower to the graveyard as the colleague could not drive. He was further instructed to collect that person in the evening. The worker stated that he was not provided with any PPE and that in any event this was the first day of lockdown and he should not have been at work at all, that this was non essential work and was in direct breach of social distancing measures. Similar happened on the following day 1 April 2020 when the Worker was asked to go into work to set up a temporary morgue. Again it was not possible to socially distance and no facemasks were provided. On the evening of 1 April 2020, the Worker was contacted by text to come in the following day and cut grass and bring his colleague and the lawnmower to the graveyard.

These activities left the Worker with significant concerns for his health and safety arising from which he contacted SIPTU who made representations on his behalf to the Employer. The Worker returned to work on 21 April 2020 and in the time leading up to the official return to work date of 18 May 2020, his duties included cutting grass, removing wreaths from graves in the graveyard, cleaning up waste ground – all of which the Worker maintained was non-essential work.

2.       On 15 May 2020 the Worker received a letter sent to his home from the Employer containing a Pre-Return to Work form. On 18 May 2020 the Worker attended a pre-return to work meeting in the course of which he raised his difficulties with the Pre-Return to Work form including that he was not returning to work on 18 May as he already had been at work prior to then performing non-essential work. In the circumstances, the Worker stated that it was not appropriate for him to complete this form and that given the seriousness of the situation, he could not honestly fill in or falsify a form knowing it to be untrue. The Worker also referenced the part of the form which required him to indicate whether he had any symptoms of Covid-19 or had been diagnosed with the illness in the past 14 days or was a close contact or was self-isolating. In that regard, the Worker offered to go to his GP. The Worker stated that the Employer did not take on board his concerns. In addition, he stated that he was given minimal PPE at this meeting.

3.       On 19 June 2020 the Worker received a phone call from his wife who was in a distraught state as a consequence of a letter sent by the Employer to the Worker’s home. The Worker stated this letter threatened to take him off the payroll if he did not complete the Pre-Return to Work form which was a unilateral interference with his right to be paid his wages. The Worker stated that his wife was so upset by the Employer’s letter that he had to return home. The Worker arranged to meet the Head of HR that afternoon and he explained his position and difficulties with completing the Pre Return to Work form.

4.       The Worker initiated the Grievance Procedure on 30 June 2020. The Worker outlined that  contrary to the Employer’s Grievance Procedure there were undue delays in dealing with his grievance. Initially the Worker received no response and he had to send a follow-up letter to HR on 7 August 2020. The Worker received a response on 12 August 2020 which he considered totally inadequate and inaccurate. In this regard, the Worker contended that the Employer had ignored his evidence and the information he had provided. There were further exchanges between the Worker and the Employer on 27 August 2020, on 24 September 2020, on 7 and 16  December 2020, 11 January 2021 and 23 February 2021. SIPTU wrote on the Worker’s behalf and requested the appointment of an external investigator. A virtual meeting in relation to the Worker’s grievances was held on 18 March 2021. On 31 March 2021 the Employer issued a response upholding the initial response of 12 August 2020 and concluding that the process was carried out in line with current procedures which has left the Worker totally dissatisfied and impacted his health and wellbeing.

5.       The Worker stated that due to the stress he was under, he attended his GP on 3 July 2020 and was deemed unfit for work and prescribed medication. Arising from having no option but to take sick leave as a consequence of his treatment, the Worker stated that he was at a significant loss of pay and overtime which he detailed in documentation and at the adjudication hearing.

6.       On 9 December 2020, the Worker received a letter from the Employer’s HR advising of a medical appointment for him in Dublin with an Occupational Health provider. The Worker spoke to the HR Official on 16 December 2020 and confirmed he would attend the appointment. On 7 January 2021 the Worker drove to Dublin for the medical appointment only to find that the premises was locked, that no face-to-face medicals were being conducted and that the Employer had been informed of this. The weather was very poor that day and it was snowing. On his way home from Dublin in the car, the Occupational Health Provider rang the Worker and discussed his medical situation with him. On foot of this assessment the Worker was advised to return to work immediately which he did on 18 January 2021 though subsequently he became ill and was off work until 18 March 2021.

Arising from the foregoing, it is it is the position of the Worker that the Employer has shown disregard for his health and safety, has breached their duty of care towards him and undermined his dignity. The Worker also contended that he was required to falsify a legal document, that without consultation he was sent a threatening letter which unlawfully threatened to take him off the payroll and that this letter caused maximum distress to his wife and family and invaded the privacy of his home. The Worker also contended that his grievances were not properly investigated, that there were undue delays and that the information and evidence he put forward was not verified in the course of the Grievance Procedure. As a consequence of this treatment, the Worker claimed he has suffered enormous anxiety and that the Employer has shown a dereliction of its obligations and put his life and that of his family “at risk of death”.

Arising from the above, the Worker claimed the following:

·       That the threatening letter be rescinded in writing;

·       That his attributed sick leave is discounted for future illnesses and that he be restored 24 weeks sick leave;

·       That an external investigator be appointed to investigate what occurred;

·       Reimbursement of €24,452.88 for financial losses incurred including loss of overtime, medical expenses, legal fees and pay due to being placed on 50% sick pay and being unpaid for four weeks;

·       Compensation of €20,000 for the distress caused.

The following is a summary of the Employer’s responses.

In relation to the Worker’s duties after 30 March 2020, it is the position of the Employer that these were essential duties which the Employer was entitled to identify as per government guidance at the time. In that regard, the Employer explained that the Worker was in the workplace on specific dates between 30 March 2020 and May 2020 and it described the work being carried out by the Worker for various hours on those dates. The Employer stated that the Worker’s Line Manager was satisfied that all of the Worker’s duties during that time could be carried out whilst maintaining social distancing - with the exception of the transportation of a colleague in a work vehicle. With respect to the latter the Employer stated this this was permissible in accordance with HSE guidance at the time and accordingly it did not consider it a risk.

In relation to the Return to Work Form, the Employer stated that this was circulated to all its workers/employees in accordance with the Return to Work Safety Protocol which had been issued by the Department of Business, Enterprise and Innovation and the Department of Health as part of government’s response to the Covid-19 pandemic. The Employer stated that this protocol was developed at national level following discussions involving a range of bodies including trade union and employer representatives. The Employer stated that the protocol provided for the issue of a Pre Return to Work form to all staff the purpose of which was to seek confirmation that the worker to the best of their knowledge, had no symptoms of Covid-19, was not self isolating or awaiting the results of a covid test. The Employer stated that in light of the challenges of the Covid-19 pandemic, a collaborative approach between employers and workers was required to limit the impact and prevent the spread of the virus. Accordingly, the essential purpose of the Pre-Return to Work form was not about its title but was to ensure that no symptomatic employee was in the workplace. The Employer stated that anyone who was symptomatic was facilitated with special leave with pay for the purposes of self isolation in order to limit the potential spread of the virus.

The Employer stated that despite its Line Manager engaging with the Worker and explaining the purpose of the form, the worker refused to sign the form. The Employer stated that its letter of 18 June 2020 was not threatening but was advising the Worker of the consequences of his on-going non-compliance – vis - that he would be removed from the payroll with effect from 22 June 2020. The Employer considered the letter constituted a legitimate instruction given the Worker’s ongoing refusal to confirm that he was not symptomatic of the virus and/or did not represent a risk in the workplace. The Employer stated that on 22 June 2020 it received the completed Return to Work Form from the Worker, that it noted the Worker had stated on the form that he had completed it “under duress” but that at that point, it deemed the matter in relation to the form closed.

The Employer stated that it acknowledged receipt of the Worker’s grievance of 30 June 2020 on the same day. The Employer stated that its HR raised the Worker’s concerns with his Line Manager and a Senior Executive Engineer and issued a response to the Worker on 11 August 2020. Thereafter, there was an exchange of correspondence between the Worker and the Employer in relation to the grievance procedure and the Employer issued further responses on 22 September 2020 and 4 March 2021. The Employer stated that a virtual grievance appeal meeting took place on 18 March 2021 which was attended by its Director of Service, a member of its HR staff and the Worker’s Union Representative. The Employer stated that the worker did not attend due to illness. Following this virtual meeting the Worker’s Grievance Procedure appeal was not upheld and a response was issued to the Worker’s Union Representative on 31 March 2021.

The Employer stated that it operated the national sick pay scheme applicable to its sector and that it had no discretion or authority to alter that scheme. The Employer stated that it received a sick certificate from the Worker on 30 June 2020 for the period 24 June 2020 to 15 July 2020 and thereafter, that the Worker continued on sick leave until 18 January 2021. The Employer stated that the Worker’s GP had stated that he was suffering from work-related stress and accordingly, the Employer made him aware of its Employee Assistance Programme. On 23 September 2020 HR notified the Worker that his entitlement to full sick pay had been exhausted and that he would commence on half pay with effect from 24 September 2020. On 17 December 2020 the Employer informed the Worker that his entitlement to sick pay at the half pay rate would expire on 21 December 2020 and thereafter, that critical illness payment may apply.

In relation to the appointment with the Occupational Health provider on 7 January 2021, the Employer explained that it attempted to telephone the Worker, that it didn’t have his correct telephone number and that it didn’t intend to send him on a false journey to Dublin. In the circumstances it agreed to pay the Complainant subsistence, mileage and parking.

It is the position of the Employer that it took its health and safety responsibilities with regard to Covid-19 and its impact on its employees very seriously and it rejected any suggestion of compromising the health and safety of the Worker or his family or of putting them at risk. The Employer contended that it did not breach any government rules in relation to Covid-19, that the Worker was not brought into the workplace after 30 March 2020 to do non-essential work, that it had no discretion with regard to implementing the national Return to Work Safety Protocol including issuing the Pre-Return to Work form, that it’s letter to the Worker of 18 June 2020 was appropriate and necessary, that the Worker’s grievance was dealt with appropriately and that it had no policy of compensating employees for potential missed work opportunities.

Having carefully considered the submissions and documentation in relation to this matter and what was said in the course of the adjudication hearing, the following are my conclusions:

·       I do not consider that it is appropriate for me to rule on what were essential or non-essential duties during the period March - May 2020. In this regard, I accept the import of DPER’s document titled – “Covid-19: update on working arrangements for the civil and public service” which provided that it was a matter for employers to “identify essential services”. I am also persuaded by the Employer’s position that in this case the Worker was an outdoor Worker and that his transportation of a colleague in his vehicle was within the parameters of HSE guidance at the time. That being said, I accept the Worker’s concerns for his safety during this time and his contention that there was a lack of communication around this matter and potentially a lack of consistency;

·       I do not consider the requirement for the Worker to complete the Pre-Return to Work form was unusual or unreasonable at the time. In this regard I am satisfied that the Pre-Return to Work form was issued in accordance with the provisions of the government’s “Return to Work Safely Protocol” of May 2020 which provided at Section 4 that employers must “establish and issue a pre-return to work form for workers at least 3 days in advance of the return to work [and that] This form should seek confirmation that the worker, to the best of their knowledge, has no symptoms of COVID-19 and…..is not self-isolating or awaiting the results of a COVID-19 test”. I am satisfied that the Pre-Return to Work form was a self declaration in relation to Covid-19 symptoms and whether the person had been diagnosed with the illness or was self-isolating. These questions were well within the capacity of the Worker to answer and I am satisfied they did not require or seek the provision of a medical opinion.  Whilst the Worker has argued that he had returned to work prior to the requirement to complete the Pre-Return to Work form – which is true – nonetheless, I consider the Employer’s requirement that he complete the form was prudent and justified given the impact of the Covid-19 pandemic at the time and that it was within the remit of its authority. In all the circumstances, I consider that it was not unreasonable for the Employer to expect the co-operation of the Worker in this matter;

·       In relation to the letter sent to the Worker of 18 June 2020, I consider this letter sought to explain the purpose of the Pre-Return to Work form. The letter advised that the form was to be completed “whether or not you have been in work or stood down”, noted the Worker’s refusal to sign the form up to that point and advised of the consequences of this – namely removal from the payroll. I consider this letter was issued in the context of the Employer’s response to the Covid-19 pandemic and in this regard, I accept the Employer’s position that the letter constituted a legitimate instruction to the Worker. Whilst I fully accept that it was very distressing for the Worker and his wife to receive such a letter, the Worker accepted in the course of the adjudication hearing that he had provided the Employer with his home address for correspondence and that the letter was properly addressed to him. 

·       I accept the Worker’s concerns in relation to having to travel to Dublin on 7 January 2021 for an appointment with an Occupational Health provider when in fact the Employer had been advised that no face-to-face meetings were taking place.

·       In relation to the Worker’s Grievance Procedure, I accept the Worker’s concerns that this should have been progressed in a speedier manner – particularly at the initial stage - and that he should have had the opportunity to consider all information provided to the Employer in the course of its dealing with the procedure. I note that Worker initiated the procedure on the 30th June 2020 and that whilst receipt was acknowledged on the same day, the Worker was nonetheless obliged to send a follow letter to the Employer on 7 August 2020. Ultimately the final outcome issued on 31 March 2021. In relation to the substance of the Grievance Procedure, I consider that the Employer’s responses of 11 August 2020, 22 September 2020 and 4 March 2021 addressed the points raised in the Worker’s Grievance Procedure.

·       From the documentation and information I have considered, it is my view that the Worker was paid in accordance with his sick leave terms and conditions – ie 66 days of full pay and 65 days at half pay applicable on a rolling basis. Thereafter there was provision for TRR subject to certain criteria. The Worker has not disputed that he was paid in accordance with his terms and conditions of employment whilst the Employer has stated it has no discretion with regard to the operation of the national sick pay scheme applicable to its sector. In the circumstances, I do not see any basis for recommending that 24 weeks sick leave be restored to the Worker. Nor do I see any basis for recommending the reimbursement of financial losses to the Worker for work he potentially lost – including overtime – as a consequence of being on sick leave/absent from work or as a consequence of allocation of duties which is an internal matter. Similarly, I note the Worker has not cited any provision in his terms and conditions of employment for the payment of medical or legal expenses.

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 Worker be paid €150 in lieu of his attendance at the Occupational Health Provider’s premises on 7 January 2021 together with the parking fee of €9.60 and mileage calculated at the normal rates applied by the Employer;

·       That in the unenviable scenario of a further lock-down due to a pandemic or for other reason, that the Employer should ensure full and transparent communication with workers in relation to decisions about duties to be carried out;

·       That the Worker be compensated €250 for the initial delay in processing his Grievance Procedure. Whilst I do not propose to recommend the appointment of an external investigator, I am recommending that the Employer review the operation of its Grievance Procedure in consultation with the relevant unions/worker representatives to ensure fair procedures and transparency at every stage.

Covid-19; Essential/Non-Essential Duties; Pre-Return to Work Form; Grievance Procedure