Worker

Employer

Anonymised Parties

A Worker

An Employer

Representatives

Anna Rosa Raso ESA Consultants

 Employee Relations Representative

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 - 00000953

21/12/2022

The Worker is in dispute with the Employer due to the failure of the Employer to act on the recommendations of its own Occupational Health Physician (OHP).  These were designed to assist the Worker resume full duties and the Worker believes that the failure to act on these caused additional, work-related stress.  The net effect is that he suffered additional stress and incurred serious financial loss.  The Employer believes that the various policies, procedures, and circulars were correctly applied in the Worker’s case and there is no merit to this claim.

The Worker has been employed by the Employer since 05/05/2005.  In 2019 he had a close family bereavement following which he was on certified sick leave for almost three months due to stress.  On his return to work he found it difficult to concentrate and requested a review with the Employer’s OHP.  After a few weeks he was unable to continue at work and was on certified sick leave for a period of three weeks.  He was seen by the OHP towards the end of July 2019 and a report was issued to the Employer.  This report outlined that he was fit to undertake duties but required some facilitation with temporary workplace adjustments and specifically around the area of workload and administrative related tasks. The Worker was told to meet with management in relation to this aspect of the OHP recommendation.  The OHP also recommended his ongoing engagement with therapeutic measures and a follow up review in two months.

When the Worker returned to work there was no effort on the part of the Employer to comply with any of the OHP’s recommendations.  The Employer undertook an investigation into the Worker’s work-related stress, and this was sent in a report to HR.  The Worker obtained a copy of this report under a Data Access Request, and he noted that there were several inaccuracies in that report. The report stated that his working hours were reduced but this never happened, and the Worker believes that the Employers time and attendance system confirms this.  The Worker also had no adjustments made to his workload.  The Worker then took a period of annual leave to protect his wellbeing.  He utilised all his annual leave at that time.  While on annual leave he requested his supervisor to organise an appointment with the OHP in advance of the two-month review period. 

The Worker’s GP certified him as unfit to work in October 2019.  The Worker contacted his Employer expressing concern that his illness was not being taken seriously and to highlight that he also had a specific and sensitive duty (Duty X) and as he was on certified work-related stress there was a requirement that he be reviewed by the OHP.  The Worker believes that this period of sick leave was entirely due to the failure of his Employer to not only implement the initial recommendations of the OHP but also the Employer’s direction to undertake specialist work which would usually be regarded as stressful.

The Worker believes that because this period of illness was work related stress due to the inaction on the part of his Employer, he should be able to access the injury at work scheme.    The Employer compiled a report during which it was stated that he had depression and PTSD and the Worker takes grave exception to this as he was never medically diagnosed with these conditions.  Once he was aware of this error, he engaged with specialist medical personnel who confirmed that he never had such a diagnosis.  It is a concern to the Worker that his Employer holds this report on file, and this is damaging to the Worker in several respects.  He is seeking that all references to a diagnosis of or suffering from depression are removed by the Employer from his records and that he receive confirmation of this.

The Worker is also seeking compensation for the loss of premium earnings, overtime, and other allowances which he did not receive during the period of absence from October 2019 until January 2020.  As the Employer refuses to classify work related stress as an injury at work he has also lost out financially.  The Worker’s period of sick leave was therefore exhausted, and he went on to half pay.  Overall, in trying to improve his well-being the Worker was disadvantaged by his Employer.

The Employer believes that the application of the terms of their sick pay regulations were correctly applied.  In order to qualify for full pay while on sick leave an injury must be sustained while at work and in such cases a Worker’s sick leave record is not affected.  The Employer’s policy is that the injury needs to be a malicious injury.  The Employer submits that work related stress does not constitute an injury at work or a malicious injury.

The Employer acknowledges that the Worker had a period of sick leave following a family bereavement. The Worker sought medical advice and the Employer put accommodations in place to facilitate the Worker.  The recommendations of the OHP were delayed but his local management did put certain recommendations in place.  The Worker’s sick leave record meant that he was subject to the regulations in place, and he went on half pay.  The Worker remained on restricted duties pending the ongoing review of the OHP.  The Worker himself also sought to have Duty X removed.  The Worker’s request for a review of the application of the sick pay scheme was undertaken by the Employer and having considered the matter and taken the legal advice in relation to the definition of “injury on duty” and the OHP advice it was deemed that his work-related stress was not encompassed by the injury at work scheme.  The Employer believes that it followed the correct procedures in relation to the Worker’s sick leave and application for inclusion in the injury at work scheme.  The Employer is emphatic that certification of work-related stress “does not in and of itself result in a determination of ‘injury on duty’”. 

The Employer also refutes the Workers belief that he was “misdiagnosed” as having depression and PTSD.  The Employer also refutes that the Worker was the recipient of unfavourable outcomes as a result of this including his removal from Duty X.  The Employer states that the words “depression” and “PTSD” were included in the supervisor’s report following a conversation with the Worker and this was not a clinical diagnosis by the supervisor.  The supervisor submitted his report out of genuine concern for the Worker

The Employer also submits that the Worker’s removal from Duty X was part of the reasonable accommodation and was done in conjunction with the Worker’s own admission that he was experiencing difficulties at work. This duty did attract a level of overtime and the Worker cannot seek to have the loss of those overtime earnings paid in these circumstances.  Overtime can only be paid when the actual hours are worked and will never be paid in circumstances where they are not worked.

The Employer believes that the Worker’s supervisors and senior management continued to facilitate the Worker in any way possible and with the intention of fully supporting him to return to his full range of duties.  This support involved the delegation of tasks to other team members and reducing his workload.  All of these were done in consultation and in compliance with the advice of the OHP.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties. I was provided with an extensive amount of correspondence and reports which were generated as part of this dispute between the Worker and his Employer.

Arising from the submission and discussions at the hearing in relation to this dispute there are several matters on which I am asked to issue a recommendation.

Firstly, the Worker is concerned about the inaccurate internal report which stated that he was suffering from depression and PTSD and the potential effect this can have on his career.  I accept that it may have been included in his supervisor’s report with good intention but when the Worker obtained this through a Data Access Request process, he took issue with this.  There is clear statements from the various medical professionals that no such diagnosis was made or warranted.  I am therefore recommending that the Employer expunges any such records from the Worker’s file and that this action is confirmed to the Worker within 42 days of the date of this recommendation.

Secondly, the Worker is seeking to have his sick leave record amended as he was placed on additional sick leave because of the Employer’s failure to implement the recommendations of their OHP.  The Worker believes that the inaccurate statement about his health from his supervisors led to his exclusion from the injury at work scheme.   This is a complex matter and the Employer had applied the sick leave policy based on the medical certification received from the Worker’s GP and their own OHP.  I am not recommending any retrospective adjustment to the Worker’s sick leave record.  However, I am recommending that if the Worker is diagnosed with a serious illness during the period when he needs to build up his entitlement to full paid sick leave that the Employer adopt a flexible and pragmatic approach if such a scenario arises.

Thirdly, the Worker is seeking compensation for the economic loss which he claims came about because of the inaccurate report submitted by his supervisor.   Having considered the matter, it is not a matter for an Adjudication Officer to amend the Employer’s sick leave policy and procedures.  It is clear, and accepted by the Employer, that there was a delay in the implementation of the recommendations of the Employer’s OHP. I am satisfied, given the volume of correspondence on this matter, that if there was any record of these recommendations being put in place they would have been submitted to the hearing of this dispute. While it may be a matter of speculation what the impact of this was on the Worker, the failure to engage with the Worker and put these recommendations in place resulted in the Worker having to utilise all his annual leave and then be on certified sick leave for a period of 20 weeks.  I am recommending that the Employer pay the Worker the sum of €6,500 as compensation for the unexplained and unacceptable delay in implementing the OHP’s recommendation.  This sum to be paid to the Worker within 42 days of the date of this recommendation.

Sick leave.  Occupational Health recommendations.