EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Conal (Connie) Gallagher
against the recommendation of the Rights Commissioner in the case of:
Department Of Arts, Heritage & The Gaeltacht
PAYMENT OF WAGES ACT, 1991
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms F. Crawford B.L.
Members: Mr. D. Morrison
Ms. A. Moore
heard this appeal at Letterkenny on 25th June 2014
Appellant: Mr John O’Donnell, Ballyheiran, Kilmacrennan, Co Donegal
Respondent: Chief State Solicitors Office, Ormond House, Little Ship Street, Dublin 8
This case came before the Tribunal by way of an appeal by the former employer (appellant) against the recommendation made by a Rights Commissioner reference r-121223-pw-12/SR.
This matter comes before the Tribunal by way of an appeal from the Rights Commissioners Decision of the 12th December 2012. The appellant made an application under the Payment of Wages Act in respect of the non-payment of wages for a period from 5th January to the 13th January 2012 (7 days). This matter is now appealed to the Tribunal.
The appellant was a general operative at Glenveagh National Park and had commenced employment in July 1978. After 33 years of service, the appellant was due to retire in January 2012. From 13th December 2011, the appellant went on sick leave and the Tribunal has been given medical sick notes from the appellant’s general practitioner from 6th December 2011 indicating absence from work due to back pain. These certificates continued up to the date of retirement on the 13th January 2012.
There is no issue between the parties that the appellant has an issue with back pain and the Tribunal has been furnished with notification as to radiology appointments for lumbar spine examination for June 2013.
Pursuant to the “Certified Sick Leave Policy for State Industrial Employees”, the respondent organised an appointment for the appellant with the Chief Medical Officer (CMO) on 14th December 2011. There was no actual written confirmation furnished as to the date, time or location of this appointment.
At this point, the evidence of the parties is at variance. The respondents’ witness (M J) states that she telephoned the appellant and was told that the appellant was not going to travel to Dublin to be assessed as he had no money but that he would be seen in Letterkenny. The appellant gave evidence that he told M J that he would not be able to travel to Dublin due to his medical condition with his back. He stated that this would render him unable to endure the 8 hour round trip bus journey. M J stated that she attempted to have an appointment arranged for Letterkenny but this was not possible and said that she told the appellant that he could be independently assessed but he would have to pay for such a report.
The appellant never attended the arranged appointment and he was then notified by way of letter of the 28th December 2011 that the sick pay being paid was being withdrawn. The respondent replied by way of letter dated the 3rd January 2012 reaffirming that the refusal to attend with the CMO made it necessary to remove the appellant from the sick pay scheme. A further letter was sent on 30th January 2012 by Mr Patsy Gallagher, Gallagher & Brennan Solicitors on behalf of the appellant and whereas this letter was acknowledged, there was no formal reply to the letter from Messrs Gallagher & Brennan.
By a dissenting opinion, a Tribunal member decided that the genesis of the decision to compel the appellant to attend with the CMO was unreasonable given the fact that he was so close to retirement. There was no evidence given to the Tribunal from the person who took the decision to refer the appellant to the CMO in order to explain this decision, given the particular context of the case. M J was gave evidence that she was told to send the appellant and on the back of this request, she completed the referral form which contained irrelevant information. Further, M J could give no firm evidence to the Tribunal that other employees in a similar situation (within weeks of retirement) have been referred to the CMO if on certified sick leave.
The Tribunal, by majority, upholds the decision of the Rights Commissioner. It accepts that the respondent could remove the appellant from the Sick Pay Scheme for non-compliance with the policy. The policy itself states that the “employer reserves the right to have any employee medically examined at any time”. However, in coming to this determination and the Tribunal does have reservations and questions the bona fides of the request to send the appellant to the CMO in the first place, considering he was an employee with 33 years of service and within a month of retirement.
Furthermore, the actual scheduled appointment date was never notified in writing to the appellant (with the address that he was to attend at) and this cannot be deemed as sufficient notice or notification of an appointment for any employee. Moreover, and even having regard to paragraph 18 of Circular 9/2010 relating to Management of Sick Leave which states “in a case of a referral (to the CMO) requires full background information and this will involve Personnel Section contacting local management” the Tribunal is of the view that the contents of the referral form completed by M J contained information capable of being perceived as prejudicial and biased against the appellant which is contrary to the principles that the “management of sick leave should be done in a fair and consistent manner” as expounded at paragraph 3 of Circular 9/2010.
That being said, the appellant should have furnished more complete medical certificates (after the telephone call of December 9th 2011) to outline that the nature of his back complaint, it could mean he was unable or cause difficulty to complete a 8 hour round trip bus journey to Dublin to see the CMO. The Tribunal notes the medical letters from Doctors Gilligan and Couglan from May 2013 and had these been furnished to the respondent in December 2011, the situation may have been different with regards to any assessment of the reasonableness of the response of the respondents.
In all the circumstances, the decision of the Rights Commissioner is upheld.
Sealed with the Seal of the
Employment Appeals Tribunal