ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: IR - SC - 00000888
Parties:
| Worker | Employer |
Anonymised Parties | A Pharmacist | A Health Care Organisation |
Representatives | Self-Represented | Organisation HR Managers. |
Dispute:
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 - 00000888 | 24/11/2022 |
Workplace Relations Commission Adjudication Officer: Michael McEntee
Date of Hearing: 16/05/2023
Procedure:
In accordance with Section 13 of the Industrial Relations Act 1969 (as amended)following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute.
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.
1: Background:
The Dispute concerns issues arising (Pay and Sick leave) for a Pharmacist on her return to work from a serious illness. The Employment commenced in March 1992 and continues. The rate of Pay was the Professional Pharmacist Scale for 35-hour week. |
2: Summary of Workers Case:
The Worker gave a lengthy Oral Testimony supported by considerable copy documentation. She had suffered from a serious illness in 2019 requiring an extended period of sick leave. Fortunately, all went well, and the Worker was deemed fit by her Specialist to return to work. After some local contacts with her own HR Office, she contacted the Occupational Health Department (OHD) on the 18th December 2019 to seek a Return-to-Work clearance. For unknown reasons it was not until the 23rd May (over 5 months later) that OH assessed the Worker and she was allowed back to work. The enforced absence from December to May 2020 resulted in significant financial losses to the Worker. The Worker lodged a Stage 1 Grievance which was heard on the 17th June 2021 by Mr J. He “partially upheld the Grievance” and recommended that the Sick leave and Salary issues be reinstated for the Worker. He did not feel that he had the Authority to recommend any compensation for Distress or Anguish alleged suffered by the Worker. The Worker followed up with a Stage 11 Grievance held on the 15th September 2021. Ms W, who heard the Grievance, while upholding the balance of the Sage 1 Hearing recommended that three weeks additional supplementary Annual leave be given to the Worker. Regrettably, Ms O’H, a Senior Manager, of the Employer significantly queried both Grievance 1 and Grievance 11. The Worker then referred the issues to a Grievance 111 Process held by Mr D of Group Head Office on the 24th February 2022 which recommended that Sick leave Credit of three Months be allowed, but was silent on Pay restoration, and that the supplementary Annual leave be increased to four weeks with a Cash buy out option. The Worker was extremely aggrieved at the turn of events since the Stage 1 Grievance - here she felt that at least Partial Justice had been recommended. She could not fathom why this Stage 1 position had been effectively overturned by Ms O’H requiring Mr D at Stage 111 to try and in her words try to “mend the Organisations hand”. Her claim now was for the Full Implementation of the Stage 1 Grievance – i.e., full pay and sick pay reinstatement and in addition a compensation payment in recognition of her distress and anguish.
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2: Summary of Employer’s Case:
The Employer made an oral testimony supported by a written submission. The Employer position was acknowledged to be difficult. The very protracted OHD process was seen, diplomatically, as a “learning experience” for the organisation. However, all Grievance Processes had been followed. At the Stage 111 Recommendation from Mr D was seen as the best possible outcome taking all circumstances into account. Sick Pay was heavily regulated and covered by many Circulars both internally and from Government. Mr D, a very senior HR figure, had made a comprehensive attempt to resolve all the issues.
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3: Conclusions:
In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.
The colloquial expression “can’t see the wood for the trees” seems apt to be applied to the Employer Organisation.
The efforts of Mr J at Grievance Stage 1 were commendable and should have been slightly tweaked to settle the case. Mr D at Grievance Stage 111 was equally commendable. Both Recommendations appear to have been overshadowed by the routines of a very large extremely bureaucratic Health organisation.
The delay in returning to work was occasioned, for reasons not completely clear, by the alleged internal organisational difficulties including allegedly in the OHD. Where the actual fault or faults lay was not clear.
Accordingly, the only fair Recommendation is that the position of the Worker in relation to Sick Leave, Pay and Holidays be Reinstated in full for the December to May period.
Regarding the Anguish/Distress payment for the Worker the offer of four weeks additional Annual leave or a cash equivalent be maintained. This is a generous Recommendation, but the circumstances warrant it.
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4: Recommendation:
IR: - SC - 00000888
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.
It is Recommended that.
- The Workers position regarding Sick Leave, Holidays and Salary be Reinstated (i.e., put back exactly as would have been the case if she had returned on an early date in January 2020. Allowing for the Christmas break a return date of say Friday the 10th of January 2020 seems appropriate. - this to allow for an OHD consideration – the request was lodged on the 18th December 2019). It is important to note that the Worker had a full clearance from her Consultant in December.
- The Once Off Annual Leave Supplement in the Stage 111 Grievance finding on a Red Circle basis and purely personal to the Worker, be paid in addition.
Dated: 26/10/2023
Workplace Relations Commission Adjudication Officer: Michael McEntee
Key Words:
Sick Leave, Sick Pay entitlements, Holidays |