INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
HSE DUBLIN NORTH EAST
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Ms Jenkinson
Employer Member: Mr Murphy
Worker Member: Mr McCarthy
1. Appeal Of Rights Commissioner's Recommendation r-145732-ir-14/RG.
2. This dispute concerns four issues the Worker has with the Employer. This dispute was referred to a Rights Commissioner for investigation and recommendation. On the 6th November, 2014 the Rights Commissioner issued the following Recommendation:-
- "I recommend that the HSE pay the Claimant compensation of €1,000 for the inordinate delay in responding to the Claimant [and] I note that the Employer has offered 5 hours in lieu and I recommend that the Claimant should accept this offer in full and final settlement of this element of the dispute."
On the 12th November, 2014 the Worker appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 23rd January, 2015.
3. 1. Annual leave is intended to provide Workers with rest and not to be used to make up time.
2.The Worker was obliged to use his annual leave and rest days to attend medical treatments deemed necessary by the Employer.
3.The Employer's delay in dealing with the Worker's issues has caused him considerable distress and financial loss.
4. 1.The Employer is aware that the Worker has several personal issues.
2.The Employer is satisfied it made all reasonable efforts to support the Worker.
3.The Employer therefore considers the Rights Commissioner's Recommendation to be fair.
This is an appeal by the Union on behalf of an employee against a Rights Commissioner’s Recommendation. The Claimant is employed as a Paramedic with the Ambulance Service based at Navan Ambulance Station. Four claims were before the Rights Commissioner, namely:-
i. Overtaking of 39.5 Hours’ Annual Leave
ii Medical Report of Occupational Physician not actioned by Management
iii Application for Injury Benefit & an extension of Sick Pay Benefit
iv Non-Payment of Travel & Subsistence Payment to attend for Medical Asessment
Having considered the oral and written submissions of both sides the Court makes the following decision on each of the claims under appeal.i.Overtaking of 39.5 Hours’ Annual Leave
The Claimant had an arrangement in place to take time off to attend treatment for an addiction. This arrangement was in place from April 2011 until May 2012 when it ceased due to the costs of providing relief cover. Alternative arrangements were made to facilitate the Claimant, however, he stated that he had no alternative but to avail of annual leave to attend the meetings resulting in the overtaking of his annual leave by 39.5 hours.
The Court recommends that the matter of overtaking annual leave should be discussed between the parties when the Claimant returns to work.
ii.Medical Report of Occupational Physician not actioned by Management
The Claimant was absent from work from December 2013 and was referred by Management for an independent medical assessment in January 2014 which found him fit to return to work. However, soon afterwards his condition deteriorated and he was referred to an Occupational Health Physician who recommended that the Claimant should return to a modified role with access to the facilities he required. However, as Management deemed this proposal impractical, efforts were made to accommodate him with an alternative role in the Intermediate Care Vehicle, with control measures in place to facilitate his return to work. Management cleared this proposal with the Occupational Health Physician, who reported that if the Claimant’s G.P. considered these temporary rehabilitative duties suitable until his symptoms resolve, then he was of the view that there were no medical contra-indications to the Claimant returning to work with the restrictions in place.
Due to the Claimant’s worsening medical condition, the alternative role was not suitable and the Claimant informed the Court that at this point he is not fit to return to work.
The Court recommends that when the Claimant is medically certified fit to return to his duties in the Ambulance Service both parties should engage with a view to facilitating his return to his role.
iii.Application for Injury Benefit and an Extension of Sick Pay Benefit
The Court notes that the Claimant’s application for Injury Benefit and an extension of his Sick Pay Benefit are the subject of internal appeals. It was confirmed to the Court that this process would be expedited. The Court upholds the Rights Commissioner’s Recommendation to pay the Claimant the sum of €1,000 for the delay in formally responding to his applications in writing.
iv.Non-Payment of Travel & Subsistence Payment to attend for Medical Assessment
The Claimant has sought payment of travel and subsistence payments for the occasion when he was required to attend for an independent medical assessment on 6thJanuary 2014. Management stated that there is no precedent within the HSE for payment of such payments in these circumstances. In all the circumstances of the Claimant’s case Management agreed to pay him a gesture of goodwill payment for his attendance on that day.
The Court is of the view that the gesture of goodwill payment offered to the Claimant is reasonable in the circumstances and accordingly upholds the Rights Commissioner’s Recommendation that it should be accepted in full and final settlement of this claim.
The Court varies the Rights Commissioner’s Recommendation accordingly.
Signed on behalf of the Labour Court
29th January, 2015______________________
Enquiries concerning this Decision should be addressed to Jonathan McCabe, Court Secretary.