INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
WESTERN HEALTH BOARD
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Mr Flood
Employer Member: Mr Keogh
Worker Member: Mr Walsh
1. Appeal by the Union against Rights Commissioner's Recommendation No. P.W. 830/96.
2. The appeal concerns a worker who has been employed as a domestic attendant at the Sacred Heart Home, Castlebar since 1978. The worker was on sick leave from 28th August, 1995 until the 19th May, 1996 when he submitted a medical certificate from his GP stating that he was fit to resume duty. The Board was not in a position to facilitate him with work on this date and referred him to an orthopaedic surgeon for further assessments. On the 1st October, 1996, the employee submitted a further medical certificate indicating that he was unfit for work. The Union contended that the Board deprived the worker of earnings for the period from 19th May to 1st October, 1996. Management rejected the claim. The dispute was referred to a Rights Commissioner for investigation and Recommendation. On the 17th December, 1996 the Rights Commissioner issued his Recommendation as follows:
"I recommend that the Board offers and the worker accepts £900 in settlement of this dispute".
(The worker was named in the Rights Commissioner's Recommendation).
On the 2nd January, 1997 the Union appealed the Rights Commissioner's Recommendation to the Labour Court. The Court heard the appeal in Castlebar, on the 9th April, 1997.
3. 1. The worker sustained a loss of earnings for the period from 19th May to 14th October 1996 a total of 22 weeks. On submitting a certificate of fitness to resume duty from 19th May, the worker ceased to receive Social Welfare benefit with effect from 27th May, 1996. On enquiring as to what his rostering arrangements would be the worker was treated in an off-hand manner and was subsequently referred to an orthopaedic surgeon.
2. The worker was unsuccessful in his efforts to establish a return to work date. When the Union sought a meeting to identify the worker's loss of earnings and a suitable return to work date, the Board refused to consider compensation and as the worker suffered a relapse, the question of a date for return to work was shelved.
3. The worker appealed the Rights Commissioner's Recommendation because it inadequately compensated him for his loss. The medical certificate submitted by the worker clearly indicated his fitness to resume duty. In the past, the Board had never expressed concern with certificates from the worker's GP.
4. Apart from referral to the orthopaedic surgeon the Board made no attempt to contact or consult the worker concerning his position. The Board's occupational health physician recommended that the worker could return to duty on a modified programme. The Board did not present details of any modified roster to the worker.
5. Management was negligent in dealing with the worker's situation. Its failure to present a definitive position regarding the worker's return to duty resulted in financial difficulties and an extremely stressful situation for the worker.
4. 1. The worker's illness related to a back problem. The Board referred the worker for further medical assessment to a consultant orthopaedic surgeon because of the nature of his duties. The surgeon's report was then referred to the Board's occupational health physician for review and recommendation. On the 2nd August, he recommended that the employee could return to work on a modified duties programme. Lifting and bending were to be avoided. Because of the nature of the service and the duties involved it was not possible to identify suitable duties for the worker.
2. The entitlement of the worker to sick pay is limited to a maximum of 12 weeks at full rate less Social Welfare benefit in any 12 month period. By virtue of the fact that he was on continuous sick leave since 28th August, 1995 he had availed of all his sick pay entitlements.
3. Because of the Rights Commissioner's Recommendation issued, the Board restored the worker to the payroll but it was concerned as to his fitness and referred him further to the occupational health physician on 7th February, 1997. His Recommendation was that while the worker could return to work in some capacity, heavy lifting was to be avoided. When at a subsequent meeting the worker claimed he was fit for all duties, the Board told him he would be rotated through the full roster from 10th March, 1997.
4. By letter to the Board dated the 5th March, the Union stated "We note from reference you made to the report issued by the Board's occupational health physician that our member should not engage in any lifting and bending during the course of his duties. Given that you indicated that the area which has been identified for our member to resume duties will require a degree of lifting and bending, creates a concern for our member. On the basis that the Board accepts full responsibility regarding our member's health and accepts full responsibility for any adverse impact that may occur to his health in the course of him performing his duties".
5. It was not possible for the Board to give the undertakings requested. The orthopaedic consultant states that the worker's condition is permanent and would exclude him returning to his duties. The Board now requests the worker to resign from his post as domestic attendant on the grounds of permanent infirmity.
The Court having considered the written and oral submissions shares the Rights Commissioner's concern at the length of time that the claimant's position remained unclarified and should have been handled in a shorter time span.
Taking into account all the issues involved the Court recommends that the Rights Commissioner's award of £900 be increased to £1,800.
The Rights Commissioner's Recommendation to be amended accordingly.
The Court so decides.
Signed on behalf of the Labour Court
13th May, 1997______________________
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.