Worker

Employer

Anonymised Parties

Worker

Employer

Representatives

  SIPTU

MP Guinness BL instructed by Holmes O’Malley Sexton LLP

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 - 00040024

23/09/2020

This dispute concerns the employer’s recording of the worker as being on normal sick leave from 3 July 2020 to 26 July 2020.

The worker seeks to have his sick leave record amended for the relevant period on the basis that he was available for work but, on the advice of his GP, was cocooning as he was at risk of contracting COVID-19.

The worker was advised by his GP that he was in a high-risk category and should restrict his movements.  In line with that advice, the worker did not attend the workplace and provided his employer with a medical certificate dated 2 July 2020.  The worker remained at home until after a determination of the employer’s Chief Medical Officer (“CMO”) that with safety protocols in place the worker could return to the workplace.

It was submitted on behalf of the worker that on receipt of the medical certification, the employer should have facilitated the worker with working from home.  The worker’s position is that he was available for work throughout the period in question and was never afforded the opportunity to carry out duties outside of his normal security staff role.

At the hearing, the worker’s representative advised that the worker was not seeking special leave with pay for the relevant period but rather that his sick leave record be amended to reflect the worker having been available for work on the dates in question.  The worker was also seeking the return of monies recouped by the employer in relation to the worker having exhausted his sick leave entitlements.   

The worker relied on HSE guidance and Department of Public Expenditure & Reform Guidance and FAQs for Public Service Employers during COVID-19 (“DPER Guidance”) in support of its position and in particular section 2.2 of the DPER Guidance relating to flexible working arrangements.

It was submitted on behalf of the employer that this dispute from the outset concerned the worker being returned on special leave with pay for the relevant period in circumstances where his ordinary sick leave entitlement had been exhausted.  It was further submitted that the matter of the worker being available for work and the issue of alternate duties were only raised after the worker returned to work and realised that he had exhausted his sick leave entitlement and that he wasn’t going to get special leave with pay. 

The worker was absent from work from 3 July 2020. 

The employer referred the worker to its CMO on 11 July 2020 and a determination dated 22 July 2020 confirmed that the worker was in a higher risk group but was able to return to work in accordance with the relevant public health guidelines.  The worker returned to work on 27 July 2020.

The employer recorded the worker as being on sick leave from 3 July 2020 to 26 July 2020. 

The worker did not satisfy the requirements for special leave with pay pursuant to Circular 2/1976 and the DPER Guidance as he did not have COVID-19 and was not displaying symptoms of COVID-19. 

The employer wrote to the worker on 20 August 2020 regarding the worker’s sick leave record, his entitlement to sick pay having been exhausted, the requirement to recoup 11.5 days salary from the worker in line with Circular 05/2018 and asking for the worker’s desired repayment option.  The worker advised the employer that he had contacted his union and that the matter was in dispute.  In circumstances where the employer did not hear further from the worker or his trade union, it issued an instruction to make a deduction of 8% of weekly gross pay from the worker’s pay until 11.5 days of salary paid in excess of sick leave limits was recouped. When SIPTU contacted the employer, the employer agreed to temporarily pause the deductions until the matter in dispute was resolved, 2.45 days had been recouped by the employer at this point.

The employer referred to the subsequent communications between the parties on the issue and submitted that it was maintained by SIPTU therein that the worker was entitled to special leave with pay in respect of the period from 3 July 2020 to 26 July 2020 as he was medically advised to self-isolate.

The employer submitted that the worker’s role was considered an essential service that could not be carried out at home, and he was required on site.  It further submitted that the worker did not meet the requirements for special leave with pay for the period in question.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

Whilst the employer asserted that the dispute was really about the worker’s entitlement to special leave with pay for the relevant period, I have carefully considered the email communications between the worker’s trade union representative and the employer in and around August and September 2020 and I am satisfied that the dispute can be more generally described as concerning how the worker was recorded on payroll on the dates in question.  This was the dispute referred to the Workplace Relations Commission in September 2020 which sought that the worker be returned as available for work for the relevant period. 

The worker in this case did not attend the workplace on 3 July 2020 on foot of his GP’s opinion that he was at risk of getting COVID-19 and the GP’s advice to stay at home.  The worker provided his employer with a medical certificate dated 2 July 2020 which outlined the worker’s medical conditions and the previously mentioned opinion and advice. 

The situation in July 2020 should be recalled; a phased easing of COVID-19 restrictions and reopening of society and the economy was underway, public service employees continued to work from home unless they needed to attend the workplace for an essential service that could not be done from home.  The DPER Guidance outlined working arrangements and temporary assignment arrangements during COVID-19 for all civil and public service employees, which included the worker in this case.  

The worker’s role as attendant security staff was considered an essential service and the employer implemented amended rosters for security staff to provide for pod working and to support social distancing measures.  The worker attended work under these arrangements until the medical advice he received on 2 July 2020.

The worker’s medical certificate of 2 July 2020 did not put the worker squarely within either section 1.2 or 1.3 of the DPER Guidance relating to attendance in the workplace of employees in the high-risk and very high-risk categories respectively.  Section 1.2 outlined extra precautions and priority for flexible working arrangements for the high-risk category; section 1.3 dealt with cocooning and facilitation for home working to the maximum extent possible for those in the very high-risk category.    A material distinction between sections 1.2 and 1.3 is that there is reference in section 1.2 relating to the high-risk category to attendance at the workplace where organisations deem it essential. 

The employer referred the worker’s case to the Chief Medical Officer on 11 July 2020 and it is accepted that, following the Chief Medical Officer’s determination, the worker returned to work on 27 July 2020.  The CMO’s determination was that the worker was in a higher risk group, but not very high risk, and that he could return to work onsite according to public health guidelines. 

Having carefully considered the relevant documentation and submissions, I am satisfied that the employer considered it necessary to clarify the position regarding the worker, his attendance in the workplace and working arrangements, arising from the medical certificate provided by the worker. 

I note the employer’s acceptance in an email of 18 August 2020 of the opinion of the worker’s GP that the worker should stay at home. The employer states in the same email that notwithstanding the GP’s opinion, there is no entitlement to special leave with pay and quotes from the Guidance that “any non-COVID-19 illness will be recorded as ordinary certified sick leave and the usual rules governing sick leave will apply.”  This email concludes with the employer’s position that because the worker was certified to stay at home by his GP, he was on sick leave. 

In a subsequent communication to the worker in September 2020, the employer outlines that notwithstanding the worker being certified as high-risk by his GP, the employer deemed that the worker needed to attend the workplace because he was providing an essential service on site.  I am satisfied that any such consideration on the part of the employer was not communicated to the worker in July 2020 at the time of his non-attendance at the workplace, and is inconsistent with communications in August 2020 to the worker and in particular a communication which advised that it had received clarity that the absence be recorded as sick leave. 

I cannot agree with the employer’s position that the worker was on sick leave or was properly recorded as being on sick leave on the relevant dates.  The employer in its emails in August and September 2020 references sections of the DPER Guidance which state that non-COVID-19 illness will be recorded as ordinary certified sick leave and the usual rules governing sick leave apply.  The worker did not have a non-COVID-19 illness; he was not ill; the medical certificate did not state that he was ill or that he was unfit for work.  I am also not satisfied that the worker was aware in July 2020 that his non-attendance at the workplace would be recorded as sick leave.

I acknowledge that the circumstances at the time were difficult, unprecedented and uncertain for an employer, not least in terms of managing staffing and operations.  I am satisfied that the worker did not meet the requirements for entitlement to special leave with pay.  However, the worker was not ill or unfit for work on the dates in question, the DPER Guidance extensively referred to facilitating home working arrangements and exploring opportunities for remote working and the employer subsequently deemed that the worker ought to have attended the workplace.  In the circumstances, I am not satisfied that the employer acted fairly or reasonably in recording the worker as being on sick leave from 3 July 2020 to 26 July 2020 and in seeking to recoup salary paid to the worker on those dates where the worker exceeded sick leave entitlements.

COVID-19, medical advice, non-attendance at workplace, sick leave