Complainant

Respondent

Anonymised Parties

A Public Servant

A Public Sector Employer

Representatives

Sarah Jane Hillery B.L. instructed by Blake Horrigan Solicitors

Internal Employee Relations Manager

Act

Complaint/Dispute Reference No.

Date of Receipt

Referral seeking adjudication in accordance with Section 13 of the Industrial Relations Act, 1969.

CA-00057081-001

12/06/2023

The within dispute concerns the application of the agreed procedures in respect of the worker’s request for her sick leave absence to be regarded as an injury that occurred while at work (injury on duty). The classification of the worker’s absence as “ordinary illness” has had an adverse effect on the worker’s sick pay entitlements and pensionable service while in receipt of the Temporary Rehabilitation Rate of pay (TRR). There is a further delay to the worker’s retirement because of the time spent on TRR. The worker quantifies her loss of earnings a approximately €30,000.00 for the period in question.

The worker’s position as submitted by her representative is that when her sick leave absence was classified as ordinary illness, this was in breach of fair procedures and the principles of natural justice. The worker contends that there was an acceptance by the occupational assessment carried out that her ill health arose due an injury on duty and that this was confirmed by the two independent consultants who also assessed her.

The worker stated that she noticed a reduction in her earnings in March 2022 and when she became aware that it was due to the classification of her sick leave absence, she made the appropriate application to have the matter re-classified.

The application was refused by the same person who had previously recommended the worker be the subject of disciplinary action which had ultimately exonerated the worker of any wrongdoing. The same person also adjudicated on the application in respect of the sick leave classification which the worker contends was unfair and inappropriate.

The worker was advised by the decision maker that she could appeal if dissatisfied with the decision and while she made enquiries on the right to appeal, it was approximately three months after lodging the appeal and querying the status of same that the worker found out that no appeal was available to her and neither the worker nor her solicitor received a response to their request for an update from the decision maker who initially suggested that an appeal was possible.

The worker contends that the way the previous disciplinary process was communicated to her resulted in an injury that occurred in the course of her work and the arbitrary way her application for “injury on duty” was addressed and refused, denied her access to fair procedures and natural justice.

The worker is seeking that her absence be reclassified as “injury on duty” or in the alternative that the matter be re-examined by the employer with a view to following the correct procedure, taking into account all of the relevant information and arriving at the appropriate conclusion as recommended by the medical assessments conducted in respect of the worker’s absence.

The employer highlighted the policies and procedures in place within the employment in respect of the classifications of sick leave absences and the relevant person responsible for making such decisions. In respect of the worker, her application was assessed and her absence recorded as “ordinary illness” as the absence did not meet the definition of “injury on duty”. The employer stated that the decision is ultimately an administrative matter and is made having considered all aspects of the issue including the relevant medical advice.

The employer acknowledged that not having an opportunity to appeal the decision is not in line with best practice and stated that out of an abundance of fairness, the worker was given the opportunity to appeal the decision through the HR Directorate but ultimately the decision was upheld.

The employer stated that it always acted fairly and in line with the appropriate procedures in relation to the workers absence and that the worker’s claim before the WRC should not be conceded.

 I have considered the submissions of both parties to this dispute. The classification of absence is provided for in the relevant Codes and Circulars applicable to the employment.

In my view, it is not the role of a WRC Adjudication Officer (AO) in an individual industrial relations dispute to recommend classifications of sick leave outside of the processes already in place.

I note that the employer contends that all processes were followed, and while the worker may be unhappy with the classification of her absence as “ordinary illness”, the appropriate procedures have been complied with and in those circumstances the matter has been addressed.

I note the difficulties the worker encountered especially concerning the appeal of the decision regarding her absence. The worker was informed she could appeal and did so. When she queried the status of her appeal, she was then told no appeal was possible and to contact the person who advised her to appeal in the first place. The worker stated that she and her solicitor both contacted the person in question and did not receive a response. This situation undoubtedly exacerbated the anxiety and stress the worker was experiencing as she attempted to resolve the issue of the classification of her absence on sick leave which she stated was prolonged by the confusion and misleading information she had received.

In conclusion, I do not recommend that the absence be classified as an “injury on duty” for the reasons stated above. I am also of the view that the employer has already carried out its assessment in line with its procedures and on that basis, I do not recommend that the process be repeated.

Based on the issue surrounding the appeal, the delays and lack of clarity on that issue, and considering the additional stress and anxiety that this caused the worker in bringing the matter to a conclusion, I recommend that she receive €10,000.00 in compensation which I consider to be fair and reasonable in all of the circumstances of the dispute.

In all of the circumstances of this dispute, I recommend that the worker be paid €10,000 in compensation.

Classification of sick leave