Worker

Employer

Anonymised Parties

A Nurse

A Hospital

Representatives

Bernadette Stenson Irish Nurses and Midwives Organisation

Lian Rooney 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 - 00002885

23/07/2024

The Worker stated that she was treated unreasonably by the Employer in 2023 in respect of her application for the Critical Illness Provisions (CIP) of the Public Service Sick Leave Scheme.

The Worker was employed by the Employer for over 3 years as an Enhanced Staff Nurse.

In 2021, she suffered a serious knee injury and applied for and availed of CIP for the period from 1 November 2021 until her return to work. The Worker returned to work on 14 February 2022 and had further absences between 26 February 2022 to 12 February 2023. As these absences fell within the CIP protective year, she availed of the CIP during this period.

Subsequently, she had a second period of absenteeism from 16 June 2023 to 9 October 2023 which occurred because of a serious back injury. She was not allowed to avail of the CIP on this occasion however on the basis that she had already been granted CIP in November 2001-February 2022 and because of her absenteeism record at the time. This was despite her having met the threshold for awarding CIP as recommended by both the Occupational Health Physician and her line manager.

The Worker began a period of sick leave from 11 February 2021 and returned to work on 14 February 2022. She availed of the CIP during this period and during the protective year as outlined above.

On 19 July 2023, the Worker’s representative wrote on her behalf to put forward that although she had been advised to apply for TRP, she should instead receive CIP in respect of a new injury. On 22 August 2023, the CEO issued a letter confirming his decision not to grant CIP because the application had been made in respect of a linked injury.

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

I note firstly that the Worker began a period of sick leave on 11 February 2021 until she returned to work on 14 February 2022 in respect of a serious knee injury. She availed of CIP as she was entitled to during this period. She was also on sick leave during the CIP protective year and absences that fell within this period were paid in line with her remaining CIP entitlements. She now is seeking payment under the CIP scheme for a second period of absenteeism from 16 June 2023 to 9 October 2023 in respect of a serious back injury.

In assessing the facts of this dispute, I have regard firstly to Circular 4/2018 where it states inter alia that:

“The protective year was applied so that someone who had returned to work following CIP could avail of remaining CIP Leave for subsequent non-critical illnesses/injuries which occurred within one year of the first date of the absence, due to the critical illness/injury for which CIP was granted”

and agree with the Employer’s CEO’s view, as stated in his appeal outcome letter, that CIP was never intended for continuous application to the same illness. Specifically, I find that the primary purpose of the protective year is to provide coverage for absences resulting from the initial critical illness or injury for which CIP was originally granted.

It would therefore be unreasonable for the Worker to seek CIP benefits in respect of an ongoing injury after the protective year expired. It would however be reasonable for her to do so if another injury or illness occurred that was not linked to the previous one.

In examining the positions of the parties in this regard, I note the Employer’s position that the back injury in respect of which the Worker sought to benefit from the CIP, after the protective year expired, was linked to the knee injury. The Worker on the other hand stated that the back injury was a completely distinct injury.    

In examining if the Worker's injuries were distinct, as she claimed, and whether she should therefore have been eligible for the CIP scheme regarding her back injury, I have considered the reports from the Occupational Health Consultant dated 3 April 2023 and 26 June 2023.

Having carefully reviewed these reports, I am unable to decide if it was reasonable for the Employer to conclude based on these reports that the injuries were linked.

Specifically, I noted that although the report of 3 April 2023 stated that the Worker had “degenerative changes but no disc prolapse or nerve compression”, it did not offer any clarity on the cause of the degenerative changes in her back. Moreover, although the report of 26 June 2023 stated that the Worker has “two medical conditions i.e. recurrent dislocation of both knees plus degenerative disc disease in her lumbar spine”, it does not say whether the two conditions could be linked. I also noted that although the report did not separate the back and the knee issues when reference was made to accommodations for the Worker, which I would have expected to see if the injuries were not linked.  

Given the ambiguity in the medical reports around whether the injuries were linked, as set out above, I believe that the only option open to me is to recommend that an opinion be sought from the same doctor she previously met on whether the back and the knee injury were linked. While I am reluctant to make such a recommendation in circumstances where there is no ongoing employment relationship, I believe that it is the only reasonable way of resolving this dispute

For the purposes of completeness, I examined the minutes of a disciplinary meeting dated 12 April 2023 where the Worker acknowledged that she had an existing back as well as a knee condition and that one injury impacted the other. I am of the view however that the Employer made the decision not to pay sick pay without having regard to these minutes as these were only submitted after the hearing.