Worker

Employer

Anonymised Parties

A Worker

An Employer

Representatives

Barnaba Dorda SIPTU

Michael McGrath  IBEC

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00000002

25/03/2022

On the WRC complaint form received on 25/03/2022 the Worker states he was ready and fit to return to work on 06/08/2021 but his employer failed to provide him with work until 26/08/2021.  At all material times the Worker is employed as a bus driver.  The Employer is a provider of short to medium bus journeys within the capital. 

The dispute concerns a claim by the Worker that annual leave he availed whilst awaiting the green light from the Company Medical Officer (hereafter CMO) to return to active duty be reinstated to him and that the days in issue should be treated as paid leave.  This was not a scenario whereby the Worker was awaiting an appointment to see the CMO.  It was a situation in which there was a requirement that the Worker provide the CMO with a specialist medical report for review and assessment following which the CMO would give the green light or otherwise that the Worker resume active duty. 

The Worker submits he tried to resolve the within matter at local level but no avail. 

The Worker submits he handed a medical report into the office of the Company Medical Officer (hereafter CMO) on Friday 06/08/2021.  The Worker submits on that day he should have been declared fit to work.  The Worker’s representative submits the CMO only read the report declaring the Worker fit to return to work on Wednesday 18/08/2021 and submits it lay on his desk unopened in the intervening period. 

The Worker returned to work on Monday 23/08/2021 and the Worker’s representative is seeking that the annual leave used by the Worker should be reinstated to the Worker.  The Worker’s representative submits that the time spent waiting to be provided with work was not proper annual leave (time used to rest, spend time with family etc.) and that it should not be treated as annual leave but as working time where his Employer failed to provide him with work. 

In support of this claim the Worker’s representative makes specific reference to scenarios set out in the agreed rules governing such situations as follows:

“Scenario Seven – Drivers who have been certified by their panel doctor as fit to return, but have a “stop” placed on their return by the CMO – Driver will be paid as per rota until the date of the arranged appointment with the CMO.  In the event of the driver not being able to keep the appointment no further payments will be made and the driver will not be allowed to resume work until cleared by the CMO. 

NB – Drivers will now receive a letter as soon as notification is received in the depot of a “stop” order being placed.

Scenario Eight – Drivers who have returned to work after a period of illness and who are required by the CMO for examination, and who have had a “stop” placed on them – Driver will be immediately notified and not allowed to drive until cleared by the CMO.  Driver will be paid as per rota until the date of CMO appointment. 

The Worker’s representative submits the Worker’s situation is described in the agreed rules between Union and Employer set out above specifically scenario seven.

The Worker asks that I recommend that the time the Worker used between 6/08/2021 and 23/08/2021 be treated as paid leave and that his entitlements for annual leave are reinstated.

The Employer raised a preliminary issue regarding the jurisdiction of an Adjudication Officer to deal with a matter that relates to a body of workers.  The Employer’s representative concedes the claim may well be in respect of an individual employee but the procedure at issue relates to all employees and any recommendation or outcome from this hearing would have an effect on a body of workers. 

The Employer’s submission details the background to the Worker’s issue and provides clarity in respect of the various interchanges in respect of the Worker’s unfit for work certification and subsequent return to work including a number of copies of correspondence between the office of the CMO and the Employer.  The Worker had been found unfit for driving duties on 16/11/ 2020 and remained so until 22/03/2021 when he was found fit for an alternative role and was accommodated by the provision of same.  

The Worker was found fit to resume driving duties from 24/05/2021.  The Worker remained in the alternative role until 20/06/2021 due to staffing levels but he was in receipt of his driving roster rate from 24/05/2021.  On 04/08/2021 following an appointment with the CMO, the Worker was declared unfit to carry out driving duties until he submitted specialist medical information for assessment by the CMO.  The Worker requested he be granted annual leave until the matter was resolved.  The Company agreed to this. 

The Employer’s representative submits the Employer has no control or influence on the speed at which the CMO operates or no line of sight into the CMO office and neither would it be appropriate for the Employer to speculate on the machinations of the CMO office.  The Employer also has no influence or insight into the medical evaluation process which is undertaken by the CMO. 

The Employer submits the Worker was facilitated by the Employer in agreeing to accept an application for annual leave for the period during which the Worker was certified unfit by the CMO.  The Employer submits the effect of this was to preserve the Worker’s absence free work record which if it continued for six months plus 1 day would refresh his full entitlements under the sick pay scheme.   

The Employer submits the Worker can have his annual leave days reinstated if he wishes and those days can be deemed as sick days. 

The Employer submits it accommodated the Worker by agreeing to deem the days in question as annual leave days instead of sick leave thereby benefiting the claimant in refreshing his entitlement under the Welfare scheme.  The Employer submits when offered a return to work after sign off by CMO on 18/08/21 the Worker preferred to take a couple of more days of annual leave and decided to wait and return on Monday 23/08/2021.   

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

Having considered both sides of this dispute I am satisfied the arrangement entered into between the parties in terms of the application for by the Worker, and the granting of by the Employer, of annual leave to cover the days 06/08/21 to 23/08/2021 before being signed off by the CMO was a local derogation that benefitted the Worker at that time.  The Worker was able to maintain an absence free work record of three months since his most recent absence by availing of annual leave instead of the days being recorded as sick leave by the Employer as he progressed his way towards achieving six months plus 1 day of absence free work to refresh his entitlements under the Welfare Scheme which would mean for the Worker that his entitlement to 100% pay for first 4 weeks, 70% for 8 weeks and 60% for remaining 14 weeks of illness would be restored to him. 

I find it is unreasonable for the Worker to now seek to have the annual leave reinstated, the availing of which at the time was of a clear benefit to him in the pursuit of his goal to restore his entitlements under the Welfare Scheme.  He specifically requested annual leave to that end.   I am satisfied the matter should have ended there.  Accordingly, I find that this claim is without merit.   

In the interest of completeness, this could well be a jurisdiction that is prohibited by section 13 of the Industrial Relations Act, 1969 insofar as it is a dispute that is connected to pay and potentially to a body of workers.  I would not have jurisdiction, in any event, to make an individual recommendation in favour of an individual worker on a matter that has potential implications for the wider body of workers.    

However, as I find the dispute lacking in merit this point is purely academic. 

Body of workers; welfare scheme;