SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
- AND -
(REPRESENTED BY COMMUNICATIONS WORKERS UNION)
Chairman: Mr Haugh
Employer Member: Mr Murphy
Worker Member: Mr McCarthy
1. Appeal Of Adjudication Officer Decision No: ADJ-00001844
The Union argued that the worker's restoration to the Company's payroll should be backdated to July 2015 as his absence from that time until his return to work in September 2016 was medically certified. Furthermore, the Union believes that the work offered to the Worker following the recommendation of a medical referee was not suitable given the Worker's health issues.
The Company argued that, as it had complied in full with the Adjudication officer's Decision, the Worker's appeal should be rejected by the Court. With regard to the type of work offered to the Worker, the Company was, and continues to be, guided by the advice of its Chief Medical Officer.
Subject Matter of the Appeal before the Court
There is a long and protracted history to the dispute between the parties to the within appeal. It is not necessary to recite that history in any detail as the parties agree that matters have moved on considerably in the period between the date the Adjudication Officer issued his decision and the hearing of this appeal such that many of the matters that fell to be considered at the first instance hearing have been rendered moot.
After a protracted absence due to various medical ailments, the Worker returned to work in September 2016, on a part-time basis, to a role which appears to be working out well for him despite his health issues. The Worker was removed from the Respondent’s sick pay scheme for approximately 18 months of his absence from work. He did not apply to the Department of Social Protection for any social welfare payment during that period. The sole issue referred to the Court relates to a claim for compensation arising from the Respondent’s decision to discontinue payment to the Worker during that 18-month period.
The Respondent referred the Worker to its Chief Medical Officer (“CMO”) who assessed him on 10 March 2014 as fit to attend work and perform his duties. The Worker did not accept the CMO’s finding and appealed the finding to an independent medical referee, Dr Lynda Sisson. Dr Sisson issued her report on 2 September 2014 and expressed her opinion that the Worker was fit only to perform a desk-based role. The Respondent, acting on Dr Sisson’s report, assigned the Worker to a position which it deemed suitable for him having regard to his medical issues. The Worker undertook a two-week training period in his newly assigned role commencing on 22 June 2015 but did not attend for work following the conclusion of the training period as he believed the role to be unsuitable for him. The Worker was removed from the Respondent’s sick pay scheme on 27 July 2015. The Respondent’s position is that the Worker’s absence thereafter was not justified as the position he had been assigned to was a desk-based role that was perfectly within his competence. The Union submitted to the Court that, in fact, the role in question was not suitable as it involved a considerable amount of standing and walking which the Worker’s medical condition rendered him incapable of fulfilling.
The Court notes that both Parties have substantially complied with the Adjudication Officer’s recommendation. The Court is also of the view that the claim for compensation before it has not been made out in all the circumstances. Therefore, the appeal fails.
The Court so recommends.
Signed on behalf of the Labour Court
15 November 2016Alan Haugh
Enquiries concerning this Decision should be addressed to John Deegan, Court Secretary.