LCR22735

1.Appeal of Adjudication Officer Decision No(s) ADJ-00033741 CA-00044546-001.

BACKGROUND:

2.The Employer appealed the Adjudication Officer’s Recommendation to the Labour Court on 25 October 2022 in accordance with Section 13(9) of the Industrial Relations Act, 1969.

On 8 December 2021 the Adjudication Officer issued the following Recommendation:

“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 Respondent recalculate the period of 14 days excluding the period of compassionate leave and the bank holiday for New Years Day 1/1/2021;

* That based on the recalculation the Complainant be granted extended SLWP in accordance with DPER's guidance and the Respondent's usual practice.

* That further discussion take place between the parties in order to agree and finalise the Complainant's sick leave days, extended SLWP and the financial implications."

A Labour Court hearing took place on 14 April 2023.

DECISION:

This is an appeal by the Employer of the Decision of an Adjudication Officer. The issue in dispute between the parties relates to the application of the DPER circular on Special leave with pay arising from COVID.

Summary of Union position

The Complainant’s wife contracted COVID and he was required to restrict his movements. He then contracted COVID and was hospitalised. While in Hospital a COVID test was carried out showing a positive result. That test is dated the 13^thJanuary 2021. The Worker was absent for an extended period arising from COVID and submitted medical certificates to that effect, including a medical certificate which stated COVID, covering the period from the 2^ndJanuary 2021. This was followed up with a doctor’s report. The Council are ignoring all this and only looking at the date the COVID test was carried out and are excluding him from the extended COVID payment. The circular states that in order to qualify for the extended payment you must have been in the workplace at any time during the 14 days prior to commencing the self-isolation period of a positive case of COVID. The Council are counting back the 14 days from the date of the test as being the relevant period where in fact the Complainant has been certified as having COVID by his medical practitioner from the 2^ndJanuary 2021. The failure to apply the circular correctly has had a detrimental effect on the Workers income and on his sick leave entitlements.

Summary of Employers position

The Council received contact from the Worker indicating that he had to restrict his movements on the 4^thJanuary 2021 as his wife had COVID. They then received a medical certificate covering the period 28^thJanuary 2021 to 11^thFebruary 2021. The Council did not receive a positive test result from the Worker until 10th March 2021. On the 9^thApril 2021 the Worker requested that the extended special leave with pay be applied to him as he was suffering from long COVID. Based on the information available to it at the time the Employer informed him that he was not eligible as he did not fall within the relevant criteria.

On 31^stMay 2021 the Union on behalf of the Worker submitted a photocopy of a medical certificate dated 13^thJanuary 2021 which covered the period 2^ndJanuary 2021 to 27^thJanuary 2021 and stated COVID. This was the first time the Council were provided with a copy of a medical certificate covering that period of time. The Council wrote to the Worker on the 28^thJune 2021 seeking the original medical certificate for the period 2^ndJanuary to 27^thJanuary 2021 but never received same. The Complainant returned to work on 28^thFebruary 2022.

Discussion and decision.

In the course of the hearing, it came to light that the Employer had not received the original medical certificate certifying the Worker as being absent due to COVID from the 2^ndJanuary 2021 nor had they received the original of the doctors report that was issued sometime later in respect of that period of absence. In the circumstances the Union should now arrange for the original of both these documents to be provided to the Employer as soon as is practical. On receipt of those documents, the Employer taking into account all the circumstances of this case should review the Worker’s eligibility for the extended special leave with pay scheme.

The Decision of the Adjudication Officer is varied accordingly.

The Court so decides.

	Signed on behalf of the Labour Court
TH	______________________
19 April 2023	Louise O'Donnell