ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00015853
A Retained Firefighter
A Local Authority
Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 02/10/2018
Workplace Relations Commission Adjudication Officer: Enda Murphy
In accordance with Section 13 of the Industrial Relations Acts 1969following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
The Worker is employed is employed by the Employer as a Retained Firefighter. The Worker was absent from work on certified sick leave from 25 May, 2016 until 6 December, 2016 due to anxiety which he contends arose as a result of bullying in the workplace. The Worker made a formal complaint in relation to this matter in accordance with the Employer’s internal Grievance Policy and Procedures and the dispute was ultimately dealt with by way of mediation. The Worker claims that there was an unreasonable delay by the Employer in relation to the manner in which the mediation process was conducted which resulted in him sustaining significant loss of earnings. The Worker is seeking compensation for loss of earnings. The Employer disputes the claim and denies that there was any unreasonable delays in the mediation process or that the Worker is entitled to compensation for loss of earnings.
Summary of Worker’s Case:
The Worker submits that an incident took place on 24 May, 2016 involving him and the Station Sub Officer which led to the Worker’s attendance at his doctor where he was deemed unfit for work due to anxiety which was work related.
The Worker submitted a formal complaint in regard to this and other matters of concern in regard to his treatment by the Station Sub Officer. This matter was investigated by the Station Officer and on 16 June, 2016, at a meeting of the parties, the Station Officer found, that although the Worker’s complaint was not a prima facie case of bullying, he was anxious that the issues identified would be resolved and proposed mediation to both parties.
Following agreement from both parties to mediation, it was agreed that mediation would begin on 30 June, 2016. However, there followed long delays in mediation taking place, despite continued engagement with the Worker’s representative and the Employer, mediation only commenced on 5 October, 2016.
It was submitted that due to the unreasonable delay on the Employer’s part in commencing the mediation process, the Worker remained on sick leave, and as a consequence, suffered a loss of earnings in regard to same, which amounted to €6,814.99 with a nett loss of €3,612.52.
The Worker’s case is as follows:
1. Agreement was reached that mediation was required to resolve the issues that led to the Worker being placed on sick leave by his doctor. The implementation of same was unreasonably delayed through no fault of the Worker.
2. The Worker should not be penalised by loss of earnings which was as a result of the delay of commencement of mediation.
Summary of Employer’s Case
The Employer submits that the Worker brought a complaint to the Acting Chief Fire Officer (CFO) following an incident which occurred on 24 May, 2016. His complaint concerned a Sub Station Officer. The matter was referred by the CFO to the Station Officer on 30 May, 2016.
The Worker provided a formal written complaint to the Station Officer on 7 June, 2016 to be dealt with under the Employer’s Grievance Policy and Procedure. The Station Officer instigated an informal investigation in line with the Grievance Policy and Procedure in order to determine the facts of the complaint and the seriousness and validity of the claim before escalating it to the next level. As the Worker was unavailable for duty due to being on sick leave this was an issue in terms of arranging a suitable time to meet. The Station Officer concluded his findings and arranged a meeting three weeks after the written letter of complaint was received. The Station Officer invited the parties to a meeting to present his findings with a view to ascertaining how best to bring the issue to resolution. This meeting took place on 30 June, 2016 with the Worker’s representative present.
At this meeting the Worker indicated that he was not satisfied with the outcome/findings of the process and wished the matter to be dealt with through mediation. At this point the matter was escalated to the CFO and a recommendation to engage a mediator was made to Corporate Services on 8 July, 2016.
An external mediator was identified and engaged in September, 2016 and a number of mediation meetings took place during October/November, 2016. There was a slight delay in the mediation process due to the unforeseeable illness of a family member of the mediator. The process did conclude in late November, 2016. In December, 2016, the Employer received confirmation from the mediator that agreement had been reached between the parties and the Worker returned to work on 6 December, 2016.
The Employer’s position is as follows:
1. The Worker was paid his full retainer for the duration of his absence on sick leave. He is claiming that he should now be compensated for loss of income due to missed call-outs. Call-outs are unpredictable and ad-hoc and, as such, cannot be estimated. If a staff member is absent on sick leave generally, they are only entitled to receive sick pay in the amount of the basic salary at full or half pay depending on the duration of the illness. Availability payments are not normally paid.
2. The Employer submits that the payment of sick pay to the Worker was in accordance with the payment of sick pay in place for retained firefighters nationally. They have not deviated from this and if the Worker’s Trade Union wish to change this process it is something that should be undertaken nationally.
3. The Worker was entitled to claim illness benefit from the Department of Social Protection which would have limited any loss in respect of his earnings from the retained fire service.
4. The Employer does not accept that there was a delay in the process. The Employer sought to engage an external mediator as quickly as possible but finding such an individual who was available proved difficult in the summer months, however once identified the Employer sought to have the mediator in place as quickly. It must be remembered that the decision to go through the mediation process was at the choice of the Worker.
5. It must also be noted that the Worker in his letter of 7 June, 2016 stated that it was impossible for him to return to work. The statement was made in advance of any subsequent certification by his own doctor.
6. The nature of this dispute does not fall directly within the provisions of the Industrial Relations Act 1969. The fact that the Worker was on certified sick leave is not in dispute as the Employer understands it. The fact that the Worker was paid in accordance with the sick pay scheme is not in dispute as the Employer understands it. The fact that the application of this scheme applies to payment of the retainer only is not in dispute as the Employer understands it.
7. The loss which is the subject of this complaint is attributable to illness. The fact is that the Worker was certified as unavailable for work for the period in question and if he was ill he could not work and therefore no compensation can accrue. There is no alternative position to this as the basis for absence is certification from a medical professional that the individual is unfit for work.
Findings and Conclusions:
I have carefully considered the extensive written and oral submissions made by the parties in relation to this dispute.
The Worker was absent from work on certified sick leave from 25 May, 2016 until 6 December, 2016 due to anxiety which he contends arose as a result of bullying in the workplace. The Worker made a formal complaint in relation to this matter which was dealt with in accordance with the Employer’s internal Grievance Policy and Procedures. The Worker’s immediate Line Manager investigated the complaint and held that while there was not a prima facie case of bullying in the workplace, that a conflict had arisen between the Worker and the Sub Station Officer which needed to be resolved as soon as possible.
The parties agreed to try and resolve this matter by way of mediation and the Employer subsequently engaged the services of an external mediator. This external Mediator was identified and engaged in September, 2016 and a number of meetings were held in October/November, 2016. The process concluded in late November, 2016 following agreement between the parties and the Complainant returned to work on 6 December, 2016.
The Worker contends that there was an unreasonable delay on the Employer’s part in commencing and concluding the mediation process which resulted in him sustaining a loss of earnings in the amount of €3,612.52 (nett) during the material period in question.
Therefore, the core issue in dispute between the parties relates to the question as to whether or not the Worker is entitled to be paid compensation for the duration of the mediation process.
In considering this issue, I am satisfied that the Worker was certified unfit for work for the duration of the period in respect of which the mediation process was conducted and was therefore, unavailable for work. It was not in dispute that the Worker received his full-entitlements under the Employer’s sick-pay scheme during this period and was paid his full retainer as a Retained Firefighter for the duration of his absence on sick leave.
I am satisfied that the Employer acted in accordance with its internal dispute resolution procedures, which included the appointment of an independent Mediator, in order to try and resolve the workplace difficulties encountered by the Worker. I do not accept that the mediation process was unreasonably delayed or protracted by the Employer in the circumstances of the present case.
Having regard to the foregoing, I find no merit in the Worker’s claim for compensation for loss of earnings arising from the manner in which the mediation process was dealt with by the Employer.
Therefore, I do not recommend in favour of the Worker’s claim in relation to this dispute.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I do not recommend in favour of the Worker’s claim for compensation in respect of loss of earnings in relation to this dispute.
Workplace Relations Commission Adjudication Officer: Enda Murphy
Industrial Relations Act 1969 – Section 13(9) – Trade Dispute – Sick Absence – Loss of Earnings – Mediation Process