ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969

Investigation Recommendation Reference:  ADJ-00037623

Parties:

Dispute:

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Date of Hearing:  22/09/2022

Procedure:

This dispute was referred to the Workplace Relations Commission (hereinafter ‘WRC’) pursuant to Section 13 of the Industrial Relations Act 1969 on 1st March 2022.  There was no objection by the Employer to an Adjudication Officer investigating this dispute.  Nor was any issue made of the fact that this dispute first arose almost two years before referral to the WRC.  Following delegation to me by the Director, I inquired into this dispute and gave the Parties an opportunity to be heard and to present any relevant evidence.  I held a face-to-face hearing at Lansdowne House on 22nd September 2022. The Worker was represented by SIPTU and the Employer was represented by IBEC and a number of witnesses were in attendance on its behalf.  Comprehensive written submissions and supporting documentation was received from both Parties.  Section 13(8) of the Act provides that hearings shall be held in private and accordingly, I direct that any information that might identify the Parties within this recommendation should not be published.

Background:

The Worker is a bus driver and has type 2 diabetes.  He sought payment of a shortfall in wages after payment under the Employer’s Sick Pay Scheme for a 26-week period of certified unfitness to work following an abnormal ECG reading and pending further testing.  The Employer contended that the Worker has no entitlement to such payment in circumstances where procedure was followed under a collectively agreed Welfare Scheme and any recommendation to the contrary would alter the terms of that Scheme.

Summary of Worker’s Case:

The Worker commenced work for the Employer in 1998 as a general operative and became a bus driver in 2005.  His duties involve driving buses along designated routes as determined by management.  He operates a staggered shift pattern working circa 39 hours per week.  His gross weekly pay is circa €700.  He has type 2 diabetes and is required to undergo a check-up with the Chief Medical Officer (CMO) every eight months to ensure his fitness to drive buses.  After such a check on 7th November 2019, the CMO determined that he was unfit for duty owing to an abnormal ECG reading.  He had explained that he had just finished a gym session that could probably explain the reading and suggested a repeat ECG test in a few days’ time to obtain an accurate reading.  The CMO had refused and referred him to Beaumont Hospital for further tests to be undertaken.  On 13th November 2019, the Worker attended at Beaumont Hospital where he underwent an ECG test, a blood test, heart trace test and echo graph test, all of which were normal.  He was required to attend Beaumont Hospital again on 17th December 2019 where he underwent similar testing which was also normal.  He was then referred to Blackrock Hospital for an MRI test which he underwent on 8th March 2020 following a three month wait on the public list.  It was contended that the MRI results were normal and he was then referred for a routine angiogram owing to his diabetes. 

The Worker had emailed letters from his Cardiologist and GP to the CMO, which he contended gave him the all-clear to return to work.  He relied upon selective excerpts from the Cardiologist’s letters.  A letter dictated to his GP on 3rd March 2020 stated: “Under the RSA Guidelines there is no indication that (the Worker) would not be able to drive despite having a Class 2 license given that he is entirely asymptomatic.”  A further letter dated 20th April 2020 stated: “…under RSA guidelines, there is no contra-indication to driving despite the fact that you have a Class 2 Licence, given that you are entirely asymptomatic from a cardiac perspective.”  A letter dated 1st May 2020 from the Worker’s GP to the CMO further stated: “From my point of view (the Worker) is well, with well-controlled type 2 diabetes.  He remains on Synjardy in addition to the recently added aspirin from cardiology.  He is very keen to return to work.  Obviously this decision is ultimately yours and I wanted to give you the most up to date letter so that you might consider this again.”  After receipt of these letters, the CMO had still insisted that the Worker could only return to work after he had undergone the angiogram and the results of this test were received.  He had another two-month wait until he underwent his angiogram on 11th May 2020 at Beaumont Hospital and was given the all-clear.  On 26th May 2020, the Worker was finally certified by the CMO as fit to return to work.  At the hearing, the Worker confirmed that his Cardiologist had indicated to him that he would rule out any medical issues through a process of elimination via the testing undertaken.  During this period, he also attended for all appointments with the CMO save for one on 16th December 2019 as he had been awaiting test results. 

The letters from the Worker’s Cardiologist provided to the Employer’s CMO as referenced above were opened at the hearing and are best set out in full.  The letter dictated by the Cardiologist to the Worker’s GP on 3rd March 2020 stated: “I called (the Worker) today about the results of his MRI scan as he had been contacting the secretary due to anxiety regarding same.  I understand he had been initially referred due to T wave inversion inferolaterally on a routine ECG check which subsequently normalised.  Echo performed since showed normal LV function, normal valves and no evidence of regional wall motion abnormality.  He subsequently went on to have an MRI performed which showed mild concentric LVH.  On perfusion imaging there was a suggestion of inferior – inferolateral and lateral inducible ischaemia with a normal LV ejection fraction of 76%.  (The Worker) tells me that he is entirely asymptomatic with no exertional chest discomfort and NYHA class 1 dyspnoea only on incline.  He has never had a syncopal or pre-syncopal event and has had no symptoms while driving.  Understandably (the Worker) is very anxious regarding his ability to work.  Under the RSA Guidelines there is no indication that (the Worker) would not be able to drive despite having a Class 2 license given that he is entirely asymptomatic.  I have informed him that I would write to you with regard to same, though I understand that the decision will be up to the chief medical officer in his company.  I have informed (the Worker) that we will book him for an angiogram, although given the current situation with cancellations due to the Covid-19 outbreak it is likely to be some while before this occurs.  I will also send him the prescription for Rosuvastatin and Aspirin which can be stopped if his Angio is normal.  Given the LVH on MRI, I will book him in for a 24 hour blood pressure monitor.”

A further letter dated 22nd April 2020 from the Worker’s Cardiologist stated: “Further to our conversation on 20th March 2020, as I explained to you on the phone, under RSA guidelines, there is no contra-indication to driving despite the fact that you have a Class 2 Licence, given that you are entirely asymptomatic from a cardiac perspective.  As I explained previously, it was not a doctor in Beaumont Hospital who advised you not to drive or who said you were not able to drive.  I understand however that the decision was made by the Chief Medical Officer in your company.  I explained that given that your MRI showed a suggestion of possible artery disease, that I have booked you for an angiogram and started you on some medications which can be stopped if this angiogram is normal.  I have also booked you for a 24 hour blood pressure monitor given that your heart wall shows some mild thickening which is likely to be due to high blood pressure.”  The letter suggested that it might be beneficial for the Worker to show this letter to the CMO.

In this respect, it is common case that the Worker was paid by the Employer for the 26-week period under a collectively agreed Sick Pay Scheme.  This provides for payment of employees’ basic wages whilst on sick leave regardless of the reason on a sliding scale after deduction of any social welfare received as follows:

100% of basic weekly wage for the first four weeks of sickness (after any social welfare payment)

70% of basic weekly wage for the next eight weeks of sickness (after any social welfare payment)

60% of basic weekly wage for the next fourteen weeks of sickness (after any social welfare payment)

The Scheme provides for a maximum period of 26 weeks payment within each twelve-month period.  The Employer also operates an Occupational Injury Scheme on the same sliding scale but with slightly different rules.  In the instant case, the Worker estimated that he was at a deficit of approximately €7,218 in the wages he would have received for the period certified unfit for duty as set out in a calculation furnished. 

It is the Worker’s contention that the actions of the Employer resulted in him not receiving his full wages and being put in financial difficulty.  He has financial obligations towards his family including supporting his children in college.  As his wages were progressively reduced under the Employer’s Sick Pay Scheme, he had to incur debt in order to meet these obligations and consequently experienced financial hardship.  It was submitted that had the CMO acceded to his request for the ECG test to be rerun a few days later upon his explanation that the abnormal ECG reading was probably as a result of a gym session, the protracted examinations and consequent loss of wages would not have occurred.  Furthermore, the Cardiologist’s opinion had indicated that based upon the RSA Guidelines (also believed to underpin the CMO’s decision) he was fit to work.  The series of tests that the Worker was required to undertake were unnecessary particularly given that there was no provision for payment of any shortfall in his wages should the process drag out over a long period of time as occurred in the instant case.  It was further submitted that although the decision of the CMO was understandable, the consequential reduction in the Worker’s wages was unfair given that he was not permitted to work through no fault of his own.  Having exhausted the internal process, this dispute was referred to the WRC on 1st March 2022.  Accordingly, the Worker sought a recommendation that the shortfall in his wages for the period in question be reimbursed by the Employer.

Summary of Employer’s Case:

On behalf of the Employer and by way of preliminary objection, it was submitted that the Employer had followed the collectively agreed Welfare Scheme providing: “All employees are required to attend the Chief Medical Officer when requested to do so and in certain circumstances they may be required to attend the Chief Medical Officer before resuming following an illness absence regardless of whether they have been certified fit by another medical practitioner.”  Accordingly, it was a condition of the Worker’s employment that he be deemed fit to resume work by the CMO regardless of whether he has been certified fit by another medical practitioner and this is the union agreed and accepted practice.  The CMO assesses the employee and their relevant medical information and provides a professional opinion to management as to their fitness to work or otherwise.  Management are not provided with information on the employee’s medical issues nor are they tasked with making any qualitative decisions on an employee’s medical condition which is the sole role of the CMO.  At all times, the Worker’s absence was managed appropriately following medical advice from the CMO.  As the CMO deemed the Worker unfit to work, management could not allow him to return to work.  The Worker was paid in accordance with the Employer’s Sick Pay Scheme as set out above.  It was submitted that a recommendation from the WRC requiring a contrary procedure would alter the terms of the Scheme and its application to all employees who constitute “a body of workers” within the meaning of Section 13(2) of the Industrial Relations Act 1969 providing: “Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.”  Thus any alteration to the Scheme may only be done through a collective process. 

The circumstances giving rise to this dispute were also outlined from the Employer’s perspective.  As recorded in memos from the Employer’s CMO to management, on 7th November 2019 the Worker had attended for a check-up with the CMO and was found unfit for duty and referred for further investigations.  The Memo stated: “(The Worker) will be unable to return to duty until after the investigations are completed.”  A memo dated 27th November 2019 confirmed that the Worker was deemed to remain unfit for work and “…will be reviewed after the investigation and assessment by a Specialist are completed.  Under no circumstances should (the Worker) return to duty unless cleared to do so by the (CMO).”  A memo dated 17th December 2019 confirmed that the Worker had not attended a scheduled appointment with the CMO the day before and noted that the Worker “…has not provided Medical Report to support his non-attendance for Exercise EGS.”  A memo dated 20th December 2019 stated: “Please note that (the Worker) must not resume duty without first being cleared by the Chief Medical Officer.”  A memo dated 3rd April 2020 stated: “TheChief Medical Officer is in receipt of Specialist Reports.  Based on the findings of his investigations, (the Worker) is considered unfit to resume as a Road Passenger Driver until further tests are conducted.  Please note that he should not be allowed to resume without first being cleared to do so by the Chief Medical Officer.”  A memo dated 5th May 2020 stated: “(The Worker) is unfit to drive until Coronary Angiogram performed and subsequent intervention if required.”  A memo dated 26th May 2020 stated: “(The Worker) had further investigations and Medical Reports are now to hand.  Based (on) previous medical assessments and the result of his further investigations (the Worker) has been found fit to return to work from 26 May 2020.  A further appointment will be arranged in the Medical Department in eight months hence.”  On 8th March 2021, a different CMO conducted an independent review of the Worker’s file and medical documentation and concluded that the Worker “… would not have been able to return to his normal driving duties prior to undergoing his investigation on 11 May 2020 and having the recovery period required following this.”  It was further confirmed at the hearing that health and safety and ensuring that the Worker was certified as fit to drive a bus safely was of paramount importance to the Employer.  Additionally, any delays in the process were outside of the Employer’s control.  Accordingly, it was submitted that the Worker’s claim for payment of the consequent shortfall in his wages should fail.

Conclusions:

I note the Employer’s concern that a recommendation as advocated for on behalf of the Worker might have the consequence of interfering with a collectively agreed Welfare Scheme impacting on a body of workers.  However, I have considered the facts giving rise to this dispute as they pertain to the particular situation.  The Worker has sought payment of a shortfall in his wages after reimbursement under the Employer’s Sick Pay Scheme for a 26-week period when he was deemed medically unfit to work as a bus driver following an abnormal ECG reading and pending further testing.  Whilst it was acknowledged on behalf of the Worker that the CMO’s decision was understandable, it was also contended that the tests that he was required to undergo were unnecessary and protracted.  Having carefully considered all of the evidence, submissions and documentation on behalf of both Parties to this dispute, I have reached the following conclusions:

(1)  It is a condition of the Employer’s Welfare Scheme that: “All employees are required to attend the Chief Medical Officer when requested to do so and in certain circumstances they may be required to attend the Chief Medical Officer before resuming following an illness absence regardless of whether they have been certified fit by another medical practitioner.”  Management are not privy to an employee’s medicals and are dependent upon the expertise of the CMO to assess an employee’s fitness to work and advise accordingly.  The CMO’s opinion is based upon their own examination of the employee and review of the medical reports and test results from any Specialists to whom an employee is referred.  This is what occurred in the instant case and there is nothing to suggest that the Employer was operating other than in accordance with this provision and in good faith.  It is further noted that there was no delay on the part of the CMO and the Worker was certified fit to return to work shortly after the test results from the angiogram were received.

(2)  The Worker was paid in accordance with the terms of the Employer’s Sick Pay Scheme on a sliding scale as set out above for the period of his leave.  In this respect, it is noted that he does not have a contractual entitlement to any consequent shortfall in wages and even if the cause of his absence arose from an occupational injury at work through no fault of his own, he would still not have any such entitlement.

(3)  Safety when operating a bus company and duty of care to members of the public including service users and other road users must be paramount.  The Worker was permitted to work as a bus driver with type 2 diabetes on the strict basis that he undergo regular check-ups.  One of these check-ups gave an abnormal ECG reading requiring further testing.  In this respect, it is noted that the Worker was referred for the MRI and angiogram tests (taking five months in total) by the Cardiologist and not the Employer’s CMO.  Contrary to that characterised on behalf of the Worker, it is also apparent from a full reading of the Cardiologist’s letters as set out above, that the Cardiologist had referred him for the angiogram “…given that MRI showed a suggestion of possible artery disease”.  Notwithstanding the views of the Cardiologist and GP as to the Worker’s fitness to drive, there is nothing to suggest that the CMO was exercising anything other than professional due diligence by requiring receipt of all test results first.  The decision to await all results is particularly understandable given the contents of the Cardiologist’s letters.  Whilst the appointments for various tests may have taken longer owing to the public waiting list and the Covid-19 pandemic, this was outside of the Employer’s control.  Fortunately, the Worker’s angiogram confirmed no abnormality and he returned to work without further issue.  Whilst I sympathise with his position, in all the circumstances, I do not consider it appropriate to recommend payment of the shortfall in his wages for the period in question.

Recommendation:

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to this dispute.  For the aforesaid reasons, I recommend no further action or concession in relation to this dispute.

Dated: 24th October, 2023

Workplace Relations Commission Adjudication Officer:  Aideen Collard