SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
TECHNOLOGICAL UNIVERSITY DUBLIN
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
(REPRESENTED BY FORSA TRADE UNION)
Chairman: Mr Haugh
Employer Member: Mr Marie
Worker Member: Ms Tanham
1. Appeal of Adjudication Officer Decision No ADJ-00020492 CA-00027045-001.
2. The Employer appealed the Adjudication Officer’s Recommendation to the Labour Court on 26 November 2019 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
On 16 October 2019 the Adjudication Officer issued the following Recommendation:-
“I recommend payment of the Worker’s entitlement to Critical Illness Protocol based on exceptional circumstances for the period when she was certified unfit for work “post op” from 23 October 2017 to 4 January 2018.”
A Labour Court hearing took place on 24 January 2020.
Background to the Dispute
The within dispute concerns a claim for application of Critical Illness Protocol (‘CIP’) to the Worker for the period from 17 October 2017 to 1 January 2018. The claim is, therefore, for eight weeks’ pay amounting to €6,800.00 (as the Worker was in receipt of half-pay at that time, in accordance with the ordinary sick pay scheme that applied to her). The matter came before the Court by way of an appeal from a Recommendation of an Adjudication Officer (ADJ-00020492, dated 16 October 2019). The Adjudication Officer had recommended payment of CIP to the Worker for the period in question. A Notice of Appeal on behalf of the Technological University of Dublin (‘the University’) was received by the Court on 26 November 2019. The Court heard the appeal in Dublin on 24 January 2020.
The Worker is employed by the University as a Grade 3 Clerical Officer. She commenced employment on 6 October 2003. She works full-time, thirty-five hours per week. Her annual salary is €39,110.00.
The Worker sustained an injury to her hand following a fall (unrelated to the workplace) in April 2017. The injury necessitated an operation and the Worker availed herself of a period of sick leave following that operation. She returned to work on 6 June 2017.
The Worker had a further period of sick leave commencing on 5 September 2017 which was initially unrelated to her prior injury. However, she did undergo further surgery for that injury on 12 October 2017. She was referred by the University for a consultation with its occupational health advisors, Medmark, on 17 October 2017. The consulting physician determined that the Worker was fit to return to work. However, the Worker submitted a medical certificate to the contrary from her own General Practitioner, citing ‘post-op’ issues. She was informed by the University that she was being placed on half-pay with effect from 27 September 2017. She was also advised of her entitlements generally under the University’s sick pay scheme, of the Employee Assistance Programme and of the CIP set out in Circular 0062/2015 (‘the Circular’).
On 14 November 2017, the Worker made an application to the University to be considered for extended sick paid sick leave under the CIP. The University – in accordance with the requirements of the Circular – forward the request to Medmark for review. Medmark subsequently informed the University that the Worker did not ‘fulfil the criteria for critical illness payment’. The Worker appealed this determination and her application was considered by a second physician at Medmark. The determination did not change. The Worker appealed again and her application was considered by an occupational physician employed by Corporate Health Ireland whose report issued on 15 January 2018. That report confirmed that the Worker was not eligible at that time for CIP but that she would be eligible in the future should she undergo further elective surgery for the injury to her hand.
In total, therefore, three separate medical reports - two from Medmark (Dr. Gueret and Dr. Fox, both specialists in occupational medicine) and one from Corporate Health Ireland (Dr. Brennan, not a specialist in occupational medicine) which confirmed that she didn’t meet the criteria to get CIP payment, as of the date of her application. Having regard to the expert medical reports furnished to it, the University applied the provisions of Circular 0062/2015 to refuse the Worker’s application for CIP for the period 17 October 2017 to 1 January 2018. Subsequently, the Worker underwent two further surgical procedures on her injured hand. She was absent on sick leave for a period from March to April 2018 and again from June 2018 until September 2018, during both of which periods the University applied the CIP to her.
The Union submits, on behalf of the Worker, that the University’s application of the CIP in the Worker’s case has been inconsistent, unfair and contrary to the provisions of the Circular in circumstances where she was deemed eligible following her two operations in 2018 but not eligible following her operation in October 2017 where all three operations were consequent on the very same underlying injury.
The University submits that its decision to refuse application of CIP following the October 2017 operation was a reasonable one, based on the medical advice it had received from two specialist occupational health physicians who were both of the opinion that the Worker did not at that time meet the eligibility criteria set out in the Circular.
Having carefully considered the Parties’ written and oral submissions, and in particular the specialist medical reports prepared by two different specialists in occupational health opened to it, the Court finds that the Worker was not eligible for the CIP payment for the claimed period between October 2017 and January 2018. Accordingly, the Court sets aside the decision of the Adjudication Officer and the appeal succeeds.
The Court so decides.
Signed on behalf of the Labour Court
24 March 2020Deputy Chairman
Enquiries concerning this Decision should be addressed to Richard Kennedy, Court Secretary.