Complainant

Respondent

Anonymised Parties

A Bus Driver

A Transport Company

Representatives

Cara O' Neill SITPU

Michael McGrath IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Industrial Relations Acts

CA - 00045038

5.07.2021

In his complaint form the complainant states that he was absent from work due to “Covid Isolation requirement” – it was submitted that there was an agreement to pay for 10 days without penalty. The complainant was ready to return but had to await sign off from the CMO and this took an additional 4 days. It was submitted that the respondent refused to pay the complainant an attendance bonus on foot of the prolonged absence and in spite of the agreement. The employer submitted that the complainant had no entitlement to the bonus payment and consequently was not paid the bonus.

The union made the following submission on behalf of the complainant :

The grievance lodged by SIPTU member, Mr. M concerns the company’s decision to withhold the Attendance Bonus from him as a result of Covid-related absence.  It is SIPTU’s view that workers who followed correct public health advice throughout the pandemic should not have been penalised for doing so.  This case specifically deals with circumstances where our member acted entirely in accordance with the medical advice given nationally and given to him personally by his own general practitioner, but which appears to have allowed the respondent to avoid payment of his attendance bonus on the basis of a technicality over which he had no control or influence.

Background:

Mr. M commenced employment with the respondent as a driver in 2018.  He has maintained an excellent work record since joining the company and can also demonstrate a good attendance record, having usually received the available attendance bonus. 

An agreement was reached between the company and the unions in response to the onset of the Covid pandemic, specifically to cover employees who were required to continue to work throughout lockdown.  It was agreed between the parties that a covid-related absence of 10 days would not disqualify an employee from receipt of the Attendance Bonus. The respondent maintain that this was a generous policy and, while it was a reasonable measure in principle, it did not always prove to be fit for purpose in practical terms given the difficulty in accessing Covid-testing for much of the lockdown and the resulting denial of eligibility for receipt of the bonus.

Mr. M was required to isolate for 10 days, from the 23rd March, having been exposed to Covid, in line with medical advice at that time.  The HSE had published directives governing return to work timelines in the event of exposure or illness and specifically stipulated that a person could not return to work prior to the completion of a 10-day quarantine, unless they produced a negative PCR test within that timeframe.  PCR tests were not being carried out at home at that time, as they subsequently were, but had to be carried out at one of the national test centres and were rarely available at that time within the 10-day limit. 

Mr. M was required to attend the CMO to be signed off for his return to work but was unable to secure that consultation until after 10 days had expired, which automatically disqualified him from consideration for the Attendance Bonus; this was despite his having no control over the availability of the medical officer, or scheduling of the appointment, or access to testing. In fact it was not until Mr. M had been absent for 16 days that the CMO was in a position to sign off on his return to work.

Complainant’s position:

-          The company had agreed to discount 10 days of Covid-related absence for the purpose of assessing eligibility for receipt of the Attendance Bonus

-          Mr. M was unable to secure a Covid test during the 10-day absence or immediately after, which might have expedited his return

-          Mr. M complied with the national health requirements and the instructions of his own medical practitioner by remaining in quarantine until the 10-day requirement had been completed

-          On contacting the CMO, our member was advised that it would take a number of days to secure an appointment; it took 6 days, resulting in a total absence of 16 days

-          The respondent maintain that the absence of 16 days disqualified him from receipt of the Bonus; but since the 10 days should not have been included in the calculation – in line with the union-management agreement - and the 6 additional days were the result of the CMO being unavailable for a consultation, it remains our contention that the decision to withhold the Attendance Bonus from Mr. M was unfair and unreasonable.

-          The respondent also contends that, separate to the above absence, Mr. M had 3 further absences bringing the total number to 19; however, it is obvious that these 3 days are the only absences which should be included in the calculation of our member’s attendance for the relevant period and, as they fall within the usual permitted number of absences, it remains our view that Mr. M should have been eligible for the Bonus.

In Conclusion:

In light of the public health crisis at the time, it was in the interest of workers (and indeed all citizens) to adhere to the quarantine rules and protocols governing how essential services could be maintained safely throughout.  General wisdom at that time suggested that workers should not only be encouraged to adhere to the rules but that their efforts to do so should be facilitated, even when it resulted in operational inconvenience.  In the case of the policy which was adopted by the respondent in relation to the Attendance Bonus; it appears instead to have run the risk of disincentivising compliance if a penalty was likely to be incurred by workers who were acting responsibly and adhering to policy. 

Our member followed the instructions of qualified medical practitioners, and company policy, and suffered a loss in the amount of 250 euro as a direct result. We believe this to be unfair and we further believe that imposing a penalty on a worker for adherence to public health guidelines has far-reaching implications for any future health and safety regulations which may become necessary.

In light of the above, we respectfully request that a recommendation is issued in support of the actions of our member and which awards him some financial recognition for the unreasonable decision taken by management.

It was submitted at the hearing that at the time 2 weeks isolation was standard – the respondent had agreed that 10day absence or 2 weeks would not impact on liability for the attendance bonus. It was submitted that as the claimant could not attend the CMO until 2 weeks had passed, he became ineligible for the attendance bonus through no fault of his own. It was contended that owing to this technicality, the complainant did not   get his attendance bonus. The claimant explained that he could not get sign off from the CMO as she was awaiting Covid test results. It was argued that due to the delay with the CMO the claimant became disentitled to the bonus. The claimant went off on the 23rd.March and returned following the CMO sign off on the 15thApril.

The respondent submitted that the complainant went absent from work on a covid related absence on the 23rd March and was signed off fit to return for work by the CMO on the 14th.April 2020.At the time an employee absent due to a Covid related absence could not return to work until the CMO signed off on their return to work. It was submitted that the complainant had 16 days of covid related absence in total with a further 3 days of self-certified absence.

It was submitted that the respondent had made an exception to the application of the usual Welfare Scheme rules for covid related absences. The company deemed the first 10 days of a covid related absence to not be included or factored as ‘absence’ for the purpose of application of the schemes. Additionally, the company paid an employee 100% of pay for those 10 days regardless of what stage of the welfare scheme they are at or whether or not they have exhausted the scheme. The company discounts the first 10 days of covid related absence for the purposes of the attendance bonus scheme.

The respondent’s representative outlined the rules of the attendance bonus scheme as follows :

Within the reckoning period, 1 Nov-31st.Oct. an employee must have less then 4 days absence ( or less than 2 in a 6 month period) to attract the payment. It was submitted that as the claimant had 16 days of Covid  absence , the first 10 were discounted for the purposes of the welfare and attendance scheme .It  was submitted that he therefore had 6 remaining days absence from  the covid event along with a further 3 days of self-certified absence resulting in 9 reckonable days in total .It was advanced that accordingly , the employee was not entitled to the attendance bonus of €250.The representative referenced the CMO memos of 2nd.April2020 where he was deemed unfit to return , the 6th.April assessment where he was deemed unfit to return to work and the third assessment on the 14th.April where he was deemed fit  to return with effect from 15th.April 2020.

It was submitted that the CMO is required to sign off on fitness to return to work before an employee can return. It was contended that the risk of an employee returning to work without being signed off by the CMO was the increased spread of Covid 19. It was advanced that it was imperative that Covid absences could not return to work until sign off was received. It was acknowledged that the CMO was faced with an elevated level of absence due to covid during the pandemic. According to the respondent any days off work prior to sign off by the CMO are considered as absences which are reckonable for the purposes of the attendance bonus. It was submitted that as the employee had 19 days of absence of which 9 were reckonable for the purposes of the attendance Scheme, he was not entitled to be paid the €250.

It was contended that the respondent had always applied the attendance scheme uniformly i.e. an employee is only deemed to be fit to return to work when signed off to do so. It was submitted that the respondent had trade union representations on behalf of employees who felt they could have been signed off earlier to allow for payment of the attendance bonus. It was submitted that fitness to return to work as signed off by the CMO is a central element of absence management and is recognised and agreed with all unions and that any decision on fitness to return without the prior certification of the CMO would have massive implications for how the company manages absences and schemes which are contingent on confirmation of fitness to return by the CMO.

At the hearing, the company maintained that even if there had been no delay in the sign off, the claimant would still not have got his attendance bonus. It was submitted that the claimant had 9 days of reckonable absence  and the scheme requires that the limit for payment of the bonus is 4 days or less.

I have reviewed the submissions from the parties – I note that the union did not dispute the contention of the respondent that the union had already raised the matter in dispute on behalf of a number of drivers “who felt they could have been signed off earlier to allow for payment of the attendance bonus”. Accordingly , while I acknowledge the company’s positive initiatives  in discounting  the first 10 days of Covid absence, I    certainly see merit  in the union’s argument that a worker should not be penalised for what appears to have been a resource issue with respect to the CMO’s office and  delays in  testing arrangements  - however  I cannot make an individual recommendation on a matter that clearly  has much wider implications for the wider body of bus drivers. In the circumstances, I recommend that the matter be referred back to the parties for collective discussions with a view to making mutually acceptable amendments to the scheme .

I recommend the parties re-engage in collective discussions with a view to reaching agreement on amendments to the Scheme.