INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
HEALTH SERVICES EXECUTIVE
- AND -
(REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION)
Chairman: Ms Jenkinson
Employer Member: Mr Murphy
Worker Member: Mr Nash
1. Appeal of Rights Commissioners Recommendation IR20376/04/JC.
2. The issue involves a claim by the worker who was employed as a Dental Surgery Assistant for over 18 years. The matter concerns the treatment/status of a long term absence arising from a decision of the Health Board’s Occupational Health Consultant on 4th March 2003 that the claimant was unfit for work pending a medical investigation of a suspected work related allergic skin reaction. The Union maintains that the period of leave from 4th March, 2003 to December, 2003 should not be treated as sick leave for the purposes of calculation of any future sick leave entitlements or in relation to the claimant’s sick leave record for promotional purposes.
- The matter was referred to a Rights Commissioner for investigation and recommendation. On the 24th March, 2005, the Rights Commissioner issued her recommendation as follows:
- “The respondent has a duty of care to the claimant and to the general public availing of the service in question and I find that the respondent must take into account the certification of its own Occupational Health Consultant that the claimant was unfit to perform her duties. However in this case the certification was in order to allow a medical investigation to be carried out of a suspected work related allergic skin reaction. I find that due to no fault of the claimant there was a considerable delay in the period of reference of her case by the respondent to a Specialist i.efrom 4th March 2003 to 14th July 2003. I note that the respondent in recognition of that delay extended the claimant’s sick leave by 131 days. I recommend that the period of 131 days be treated as administrative leave and not as sick leave, thereby reducing the claimant’s sick leave record by 131 days and ensuring that that period is not computed as part of her sick leave record for the purposes of calculating any future sick leave entitlements or in relation to the claimant’s sick leave record for promotional purposes“
On the 27th April, 2005 the Worker appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969 on the grounds that the period 15 th July – December 2003 was not encompassed by the recommendation, although the parties sought the Rights Commissioner’s position on this period. A Labour Court hearing took place on the 20th September, 2005.
3.1 Long absence on sick leave will have a detrimental effect on career progression in the Public Service and should a reoccurrence of a condition or some other medical difficulty arise, previous absence on sick leave will determine eligibility for pay under the Sick Pay Scheme.
2. The Union maintains that the worker has been physically fit to return to her post since March 2003 but has been precluded from doing so because the Area Board's medical advisers did not reach a determination in this case. Her absence has been at Occupational Health's request.
3. The Area Board maintains that they must follow Occupational Health's advice. Occupational Health have advised that the absence should not be considered "when computing the workers sickness record for the purposes of pay and/or promotion"
4.1 Management's position in relation to this case is that the Executive would maintain that a staff member is either fit or unfit to carry out the range of duties for which they are employed. There is no obligation on an employer when in receipt of a medical certificate confirming an employee unfit, to place that employee in an alternative role.
2. Concessions have been made with the regard to the worker's leave and management have been accommodating over and above their obligation and as such management contest any suggestion that further adjustments be made to the status of the worker's sick leave.
3. Regarding the sick leave period from July to December 2003 it is management's contention that the worker was unfit for the duties for which she was employed in accordance with the recommendation of Occupational Health and therefore the period in question cannot be seen as anything other than sick leave.
4. At no time during the worker's sick leave period did she suffer any financial loss and has to date been treated in line with the Executive's Sick Leave policy.
Having considered the views of the parties expressed in their oral and written submissions the Court is of the view that it is reasonable for the employer in the circumstances to ascertain whether the Appellant was fit to resume her duties in the environment in which she normally worked. The Court is also of the view that a period of approximately thirteen weeks would be a reasonable period in which to carry out such an investigation. In this case the investigation was not promptly dealt with and a number of delays ensued giving rise to a protracted period of leave which was outside the Appellant’s control.
The Health Board’s Occupational Health Department stated in a letter dated 7th July 2003, to management that the Appellant“has been off duty at my request and I feel that the time she has lost should not be taken into consideration when computing her sickness record for purposes of sick pay and or/ promotion”.
The Court notes that the employee was anxious to return to work and made a number of efforts through her Union in that regard.
Therefore, in all the circumstances of this case, the Court considers that the period from 4th March to 3rd June 2005 should be classified as a form of “protective paid leave” and all other absences from that date up to the return to work date on 15th March 2004 should be classified as “administrative leave”. Furthermore, such absences should not count against her for the purposes of sick leave entitlement and should not have a detrimental impact for the purposes of any future promotional opportunities.
The Recommendation of the Rights Commissioners is varied accordingly.
The Court so decides.
Signed on behalf of the Labour Court
Enquiries concerning this Decision should be addressed to Jackie Byrne, Court Secretary.