LCR23120

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00050343 (CA-00061660, IR - SC -00002243)

BACKGROUND:

The Worker appealed the Adjudication Officer’s Recommendation to the Labour Court on 7 October 2024 in accordance with Section 13(9) of the Industrial Relations Act, 1969.

A Labour Court hearing took place on 11 February 2025.

DECISION:

The Appeal

This is an appeal on behalf of a Worker from a Recommendation of an Adjudication Officer (IR-SC-00002243, dated 27 August 2024) under section 13 of the Industrial Relations Act 1969. Notice of Appeal was received in the Court on 7 October 2024. The Court heard the appeal in Waterford on 11 February 2025.

The Dispute

When this dispute arose, the Worker was employed as a staff nurse by Aurora Enriching Lives, Enriching Communities (‘the Employer’) in Kilkenny. The Employer provides community-based support services to persons with disabilities and is a so-called ‘Section 38’ organisation.

On 15 September 2019, the Worker sustained an injury at work due to challenging behaviour on the part of a service user. The Worker was five months into her pregnancy at that time. A risk assessment was conducted following which the Worker was placed on health and safety leave pursuant to section 18 of the Maternity Protection Act 1994, commencing 4 October 2019.

The Worker subsequently developed a pregnancy-related medical condition and was certified by her GP as being unfit for work with effect from 14 October 2019. The Worker submitted medical certificates to the Employer in accordance with the latter’s managing attendance policy and in accordance with the Public Service Management (Sick Leave) Regulations 2014 (SI No 124/2014).

The Worker received no payment from the Employer on 28 November 2019. When she queried this, she was informed by the Employer that as she had commenced on Health and Safety Leave on 4 October 2019, she was not permitted to move from that to sick leave.

The Worker’s Submission

The Worker submits that she was fully compliant with both the Employer’s managing attendance policy and the Public Service Management (Sick Leave) Regulations 2014 when certified by her GP as unfit for work due to pregnancy-related illness on 14 October 2019 and that the Employer was, therefore, obliged to pay her sick pay in accordance with the Regulations from that date forward.

It is submitted on behalf of the Employer that Health and Safety Leave continues until it is terminated in accordance with section 20 of the Maternity Protection Act 1994. It is further submitted that, as section 20 does not include the commencement of sick leave as a ground for ending of Health and Safety Leave, it correctly continued to treat the Worker as being on Health and Safety Leave and not sick leave until her period of statutory maternity leave commenced.

Discussion and Decision

It appears to the Court that the Employer has mistakenly viewed the within Dispute as being a matter that falls to be determined by reference to section 20 of the Maternity Protection Act 1994. This is not the case, in the Court’s view. There is no dispute between the Parties in relation to the certification of the Worker’s pregnancy-related illness and her GP’s confirmation that she was unfit to attend work, as a consequence of that illness, with effect from 14 October 2019. It is also not in dispute that the Worker submitted the necessary certification to the Employer as specified in the Public Service Management (Sick Leave) Regulations 2014. It follows, therefore, that the Worker was entitled to payment of sick leave under the Regulations. Accordingly, the Court recommends payment of the full amount of such sick pay that she would have received had she been placed on the appropriate sick pay scheme following her certification.

The Recommendation of the Adjudication Officer is set aside.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
ÁM	______________________
4th March 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Áine Maunsell, Court Secretary.