ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00032165
Parties:
| Complainant | Respondent |
Anonymised Parties | A Special Needs Assistant | A School |
Representatives | Michael Kerrigan, Fórsa Trade Union | Aine Haberlin, Mason Hayes & Curran |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 | CA-00042487-001 | 15/02/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00042487-002 | 15/02/2021 |
Date of Adjudication Hearing: 10/01/2022
Workplace Relations Commission Adjudication Officer: Emile Daly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
For the purpose of this decision SHWWAct 2005 refers to Safety Health and Welfare at Work Act 2005; OHS refers to Occupational Health Scheme Assessor and DES refers to the Department of Education and Skills Anonymisation of the parties I have considered section 4 (c) of the Workplace Relations (Miscellaneous Provisions) Act 2021. I determine that due to the existence of special circumstances, information that would identify the parties in relation to whom this decision pertains, should not be published by the Commission and the parties in this decision will be anonymised. The reason for this is that in addition to the consent of both parties, I am satisfied that the Complainant’s privacy concerns in relation to publication of her medical history are valid but that it would not be possible to give the reasons for this decision without identifying details of her medical history. Therefore, I am anonymising the identities of the parties to ensure that the Complainant’s medical history may be kept private. I find that this constitutes special circumstances. Substantive Complaints These penalisation and pay complaints arise from the Complainant’s contention that she was forced to go on a period of sick leave (and consequently undergo a loss of pay) arising from a protected act – that she refused to return to her place of work (a school) - in circumstances where to do so she would be exposed to a biological hazard (risk of Covid 19 infection) during a time that she was under investigation for a possible cardiac condition. |
Summary of Complainant’s Case:
The Complainant worked as a Special Needs Assistant within a school. In the weeks prior to the start of the school year in August 2020 when the Complainant was due to return to her duties (as an SNA in the Respondent school) she had been undergoing a medical investigation in relation to a suspected cardiac condition. The previous year she had been off work for 4 weeks due to a heart infection. At the start of August 2020 (when the vaccination programme was a future possibility only) and as the return to school approached. the Complainant became seriously concerned that she would be a poor candidate if she contracted Covid 19. She requested permission from the Respondent Principal to allow her to work remotely from home or in a separate class room within the school. She was informed by the Principal that on 7 August 2020 the Department of Education had published DES Circular 49/2000 [Coronavirus (Covid 19) Arrangements for Teacher and Special Needs Assistants employed in recognised primary and post primary schools] which included criteria to determine if Teachers and SNAs were entitled to special leave with pay, which was a provision to permit remote working in circumstances where an employee was deemed to be very high risk or had been advised by an independent Occupational Health Consultancy (OHS), to cocoon. The Complainant, underwent the OHS assessment and its result, issued on 18 August 2020 was that the Complainant was deemed high risk but not very high risk and in accordance with this the Complainant was obliged to attend work, as long as social distancing and hand hygiene protocols were in place. The OHS report stated that “In our opinion, the above-named employee falls into the High-Risk Group but not the Very High Risk (Extremely Vulnerable) Group…According to current HSE guidelines this employee may attend work if it is not possible to work from home but with social distancing and hygiene measures in place.” The Complainant contended that despite its flawed assessment process even the OHS report stated that the final decision for the Complainant’s deployment as one that rested with the employer. The Complainant contends that the OHS assessment was flawed because it was an online box ticking assessment and one that did not take account of the opinions of her treating physicians. The Complainant contended that given her job necessitated dealing with children with special needs, that social distancing was not practically possible. The Complainant did not accept that the various ameliorative measures that were suggested by the school principal- to change her duties and expose her to less students - were enough to protect her from the risk of contracting Covid. The Complainant requested that the Respondent take the steps to arrange with DES that she be given permission to work from home and receive Special Leave with Pay. The Complainant’s request for remote work or isolated work was refused. Due her anxiety at the prospect of contracting Covid, on 31 August 2020, the Complainant went on sick leave. Applying section 11.1 of Circular 49/2020 which states that “ An employee in the high risk group who is not ill must attend the workplace unless advised otherwise by the OHS” the Respondent informed the Complainant on 1 September 2020 that they were bound by the terms of the circular and because she had been deemed to be high risk but not very high risk that they were not in a position to offer her Special Leave with Pay. They said that they had made numerous attempts to speak to DES, but the advice received was that they were to apply the terms of the Circular 49/2020. The Board of Management then requested that the Complainant provide further supportive documentation that she had been advised to cocoon - in accordance with the Circular, which she did. The Complainant provided additional records and reports from her medical advisors directly to the OHS for a review of their initial decision. On 22 September 2020 the OHS issued a second review decision in which their initial finding - that the Complainant was high risk but not very high risk - remained unchanged. On 17 September 2020 Complainant made a complaint under the Respondent’s grievance procedure in which she requested permission to work either in a separate classroom or from home. She suggested a number of duties could be reallocated to her to do remotely. She stated that the Respondent were obliged to carry out an individual risk assessment based on the views of her medical advisors, not the tick box exercise that the OHS process was. The Respondent responded that an assessment of the Complainant had taken place, and this was the OHS assessment, which the Complainant did not accept. The Complainant contended that the Respondent was under an obligation under section 19 of SHWW Act 2005 to conduct an individual risk assessment to see if it would be possible for her to work from home or do work in a classroom on her own and the refusal to do this was a breach of the Act. Having gone through the different stages of the grievance process, on December 3, 2020, the Respondent did not uphold the grievance on the basis that the Respondent had complied with the Circular. The Complainant contends that she was forced to go on sick leave (which was less than her salary) and as a result she suffered an unlawful deduction from her wages. Further, when the sick pay scheme was exhausted she availed of the Temporary Rehabilitation Remuneration (TRR) until this too was exhausted but TRR was again less remuneration than the sick pay had been. This too was an unlawful deduction from her wages and was in breach of the Payment of Wages Act 1991. The Complainant contends that not only has she suffered a loss of salary but because she now has no sick leave or TRR remaining to her she also continues to suffer losses into the future. She contends that the loss of pay only arose because the Respondent refused to conduct an individual risk assessment on her, as it is obliged to do under section 19 of the SHWW Act 2005 and if conducted it should have taken into account her personal medical circumstances, as opposed to the generic exercise that was conducted by the OHS. Had this appropriate medical assessment been conducted the views of her medical practitioners would have been taken into account and her consultant’s opinion “to allow her to work remotely if at all possible” would have allowed her to continue work, be paid her full salary and maintain her right to avail of sick leave and TRR in the future. She contends that regardless of the terms of DES Circular 49/2020 the Respondent was obliged to give effect to her rights under the SHWW Act 2005 which meant that (under section 19) where there are hazards in the workplace these should be identified by way of a written risk assessment which was not carried out. Further, there should be a review of this assessment if there has been a significant change in the matter to which it relates, and that Covid must constitute a significant change. The Complainant seeks relief under the SHWW Act 2005 and the Payment of Wages Act 1991. |
Summary of Respondent’s Case:
The Respondent denies the relief sought. The Respondent contends as follows: The Respondent Board of Management were obliged to follow the terms of DES Circular 49/2020. There was no exemption under the Circular for individual cases. No argument has been raised by the Complainant that the Circular conflicts with the SHWW Act 2005 or that compliance with the Circular by the Respondent breached the terms of the 2005 Act. The Complainant’s argument rather is that the School did not conduct an individual risk assessment of the Complainant and that this was in breach of the SHWW Act. However, the Respondent contends that such an individual assessment was conducted. Circular 49/2020 required the Respondent to ensure that a risk assessment of individual staff in schools took place under an Occupational Health Scheme provided by independent medical consultancy firms (OHS), which was done. This was an individual risk assessment. Under the Circular Special Leave with pay is expressly confined to employees who are diagnosed with Covid 19 and those who are recommended to self-isolate, neither of which pertained to the Complainant. Arising from the OHS assessment an employee could fall into a number of categories which included high risk or very high risk, however depending on which category a member of staff fell into the outcomes were considerably different. Under section 10.5 of the Circular if an employee was deemed to be very high risk, the Employer was required to prioritize working from home, to the extent that that is possible. Under the Circular if an employee was deemed to be high risk and the employee must attend the work-place, unless advised otherwise by the OHS. The OHS assessment found the Complainant to be high risk. The Circular does not make provision for a school to set aside an OHS recommendation or that an opinion of an employee’s doctor replace the assessment that the OHS has made. The Circular does not permit the OHS finding to be ignored or circumvented by a school. In total three assessments of the Complainant were carried out by the OHS. An Assessment, a Review assessment and an Appeal. Had the OHS changed its advice and placed the Complainant into the very high-risk category during this process, the Complainant would have been treated as a very high-risk candidate which would have allowed her to avail of Special Leave with Pay. However, the OHS assessment outcome did not change and the Respondent was bound by this. Furthermore, despite what is contended by the Complainant, and although the School was not privy to the assessment process of the Complainant, the Respondent is aware that the process did permit an employee to furnish any medical evidence that she/he wished to on the OHS for its consideration so it is not accurate for the Complainant to describe the assessment as a tick box exercise or one that was deaf to the individual health circumstances of an applicant. Indeed, it is not contested by the Complainant that she was given the opportunity to and did furnish her medical records to the OHS at the review assessment and at the appeal stage. For these reasons the risk assessment that the OHS carried out was comprehensive and met the requirements of section 19(1) of the SHWW Act 2005. The Respondent contends that, bar allowing the Complainant to work remotely it adhered to Covid safety protocols and took every step that was available to ameliorate the safety concerns of the Complainant. The Principal suggested that SNA staff cohort be reallocated to ensure that the Complainant would only work with a small group of children that required less physical contact. This was suggested in August 2020 with very short notice in advance of the commencement of the school year at a time when the school were endeavouring to ensure compliance with a whole host of other directions that had been received by DES including– training of staff – creating and managing pods of children within the classroom - putting in place hand washing protocols for the children – arranging the display of social distancing signage–sterilising door handles, taps, tables and other surfaces - providing hand sanitiser and ensuring children use it– observing classroom ventilation protocols – training of staff in managing the children while at the same time managing their own anxieties etc. The Respondent contends that the Complainant’s WRC complaint ignores the school’s obligations under Circular 49/2020, which the Respondent is not permitted to step outside of. In accordance with circular 49/2020, safety protocols were put in place within the school to protect all staff including those who were in the high-risk group. Under the Circular the Respondent did not have the discretion to award special pay with leave - in circumstances where salaries are paid by DES, not the school – and where an employee was not been deemed as very high risk. The OHS first assessment averment that the final decision of the employee’s deployment rests with the Employer did not mean and should not be read as meaning that the Respondent is free to decide itself on whether the employee can work at home or not. This is a medical matter which is confined to the OHS. The context of this statement helps to explain its meaning. It followed a comment that because over 25% of the Irish Adult population fell into the higher risk group and because the assessment may impact on the operational requirements and need for continuity of work, mitigation safety measures were a matter for the School management to determine which included the provision of PPE, in addition to social distancing and hygiene protocols so that it was for this reason, lest a school be unable to ensure these protections, that the final decision of the employee’s deployment lay with the Respondent. The Respondent had taken all the necessary steps to ensure social distancing and hygiene protocols and many more safety protocols in addition to these, were in place. The claim for penalisation has not been properly made out. The loss of pay occurred because she availed of a sick leave scheme not because she was penalised. The Complainant claim that she was penalised is a contortion of what the HSWW Act 2005 allows. Furthermore, the claim that there was a requirement on the Respondent to conduct a written assessment of risk to include the risks that the Complainant was exposed to has not been properly or clearly linked to her penalisation claim. In synopsis the Respondent contends that the complaint is misconceived and should fail for a number of reasons which include that no detriment has been proven, no prohibited act has been proven, no causal link between a prohibited act and detriment has been established and therefore the onus on the Complainant to prove that a penalisation took place, has not been discharged. |
Findings and Conclusions:
At some future point in time, when Covid 19 is more associated with the past than the present, there will be a body of WRC Adjudication decisions which reflect the considerable, and often devastating, impact that the pandemic had on the working life of people living in this country. This is particularly so for those involved in the operation of vital front-line services such as health and education. The Complainant in this case is approaching her retirement age and only the least compassionate listener would not be moved by her description of the anxiety provoking impact that the pandemic had on both her work and home life. Not only did she fear for her own exposure to the virus but she also worried that she might bring her virus home to her husband for whom she cared and who had underlying health conditions. At the same time the Respondent and schools in general were faced with a multitude of challenges that were many and burdensome. Fluctuations in the risk of infection over time required the Government to quickly formulate and re-formulate policies and guidelines for specific workplaces but it was the ultimately the Employers who were required to implement those policies and guidelines and in special education schools there can be little doubt that this was particularly challenging. As outlined above these complaints are a penalisation complaint under the Safety Health and Welfare at Work Act 2005 and a claim for unlawful deduction of wages under the Payment of Wages Act 1991. I have considered the evidence and I have read the submissions that have been furnished by both parties. Taking all matters in to account my findings and reasoning are as follows: CA-00042487-001 – SHWW Act 2005 In order to succeed in a complaint taken under the 2005 SHWW Act it is necessary for a Complainant to show that section 27 of the SHWW Act applies according to which penalisation may occurs if (a) a prohibited act has taken place and (b) the Complainant has suffered detriment as a result of that prohibited act. Without both of these tests being met, a complaint of penalisation is not well founded. Applying the test to this case, I am not satisfied that the Complainant has established that she suffered a detriment as a result of raising her health concern. The Complainant contends that the detriment to her was that she was forced to go on sick leave. With respect to this, I accept that she had a health concern and that it was a serious and real one for her however her decision to go on sick leave was one that was taken by the Complainant because she was suffering anxiety it was not taken by anyone else. The OHS medical assessment was reviewed and appealed but the outcome remained the same which was that she was considered to be high risk but not very high risk and as a consequence of this, under the terms of section 11.1 of Circular 49/2020, she was obliged to attend work. I am not satisfied that it was the Respondent that made her to go on sick leave. The Respondent wished the Complainant to return to the workplace, but she felt she could not. In the absence of the Complainant either attending work as an SNA or going on sick leave, the Respondent SNA allocation was one person down because it was only when she was on sick leave that the school was unable to obtain DES funding for a replacement. Insofar as the Complainant alleges that she was forced to go on sick leave I am not satisfied that this contention meets the statutory requirements of section 27 of the 2005 SHWW Act. Her decision to go on sick leave was not an imposition of a discipline reprimand or other penalty (including financial penalty). The fact that she went on sick leave and as a result of that she sustained a loss of salary was because she was suffering from medically certified anxiety, not because she was being penalised for conduct or because she raised a health and safety representation. There is no complaint that the Respondent failed to apply DES Circular 49/2020, indeed this complaint hinges on the contention that the Complainant had a right to ask the Respondent to ignore the OHS findings or to disapply the Circular, which I do not accept. Administrative Circulars can be disapplied if they are found to be in conflict with a statute, which takes precedence. However, no argument that the SHWW Act is in conflict with Circular 49/2020 has been made by the Complainant and therefore in the absence of the Circular itself expressly providing a right of derogation, the terms of the Circular should be applied. If the Complainant had an issue with the way in which the medical assessment was conducted by the OHS, the proper relief is against that body or the DES, it is not against the school, who had no input in how the assessment was conducted or how the school were to respond to the OHS assessment findings. In terms of the Complainant’s argument that the assessment failed to assess the risk to the Complainant as an individual, while the initial OHS assessor may not have been in receipt of the Complainant’s full medical history when it made its first assessment findings, I am satisfied that they had access to them on the review assessment and in the appeal, which upheld the initial recommendation. In addition to this it is noteworthy that that the opinion of Complainant’s own physician was qualified; “remote working if at all possible”, as opposed to being a medical imperative recommendation that should bind an Employer. Circular 49/2020 is prescriptive and at para 11.1, it expressly requires that an employee who is high risk but who is not ill, must attend the workplace unless the OHS advises to the contrary. In this case the OHS did not advise to the contrary and, in accordance with the circular, the Complainant was required to attend work. I am satisfied that the OHS finding that the deployment was a matter for the Employer is not, as is contended by the Complainant, a laissez faire declaration by the OHS that even though they found she was high risk that the Employer was free to find otherwise. Rather I agree with the Respondent that deployment here refers to the safety measures whereby if social distancing and hygiene measures could not be assured then the Employee’s deployment was a matter that rests with the Employer. I find that the medical assessments that were conducted by the OHS met the obligation to identify the risk hazard that the Complainant was exposed to under section 19 (1) of the SHWW Act 2005 and that having found she was high risk but not very high risk the application of Circular compelled the Complainant to attend work. By offering the Complainant the option of being reallocated to a small mainstream class of 15 students in which there were children with fewer care needs, I consider that the Respondent made every attempt that it could to ameliorate the Complainant’s concerns, given that it had no option other than to require her to attend work. For the above reasons I am satisfied that that the Complainant has not met the criteria. I do not accept that the alleged detriment was caused by the Respondent and I do not accept that going on sick leave constituted a protected act under section 27 of the SHWW Act. For these reasons I find that this complaint to be not well founded. CA-00042487-0012 Payment of Wages Act 1991 In relation to the claim for reduced wages arising for the period that the Complainant was in receipt of sick pay or TRR, I find that the Complainant has not demonstrated that these losses arose from an unlawful deduction from her wages. The Complainant went on sick leave and because of this she received sick pay. When her sick pay was exhausted she received TRR. Neither payment could be considered to be an unlawful deduction from her wages. The pay that she received was for medically certified sick leave, which she is entitled to by virtue of her contract. For this reason, I find that this complaint to be not well founded Conclusion The sympathy that I have for the Complainant arises naturally because the anxiety that she felt was real and completely understandable. Very few people have not encountered pandemic anxiety over the past two years. I accept that this whole episode must have been difficult for the Complainant, particularly given her long service in educating children with special needs but also because the dispute arose towards the end of her career, when one should feel, with some justification, that having given one’s all, that the work achieved was valuable and was valued. However, neither the difficult predicament that the Complainant found herself in nor the understandable worry that she must have harboured for herself and her husband permits me to apply an expanded interpretation to the ordinary meaning of the provisions of SHWW Act 2005 or the Payment of Wages Act 1991 as has been contended by the Complainant’s representative. A WRC Adjudication decision is limited to the jurisdiction that is afforded by the statutes under which the reliefs are claimed. In my view the statutes that are relied upon in this complaint do not permit recovery on the bases that have been put forward on the Complainant’s behalf.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
For the reasons stated above I find complaints CA-00042487-001 and CA-00042487-002 to be not well founded |
Dated: 02-02-2022
Workplace Relations Commission Adjudication Officer: Emile Daly
Key Words:
Penalisation - Safety Health and Welfare at Work Act 2005 – Payment of Wages Act – Covid 19
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