Worker

Employer

Anonymised Parties

A Worker

An Employer

Representatives

Joseph Ateb, Siptu

Lian Rooney IBEC

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00003759

05/02/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00003760

05/02/2025

The Worker began employment with the Respondent on 3 June 2016 under a permanent contract as a Social Care Worker. His current salary is €48,860.90, corresponding to point 14 of the Social Care Worker salary scale.

The Worker stated that the Employer refused to pay him in accordance with the COVID-19 Special Leave with Pay (SLWP) scheme during his sick leave from 12 July 2021 to 30 September 2022, despite his illness being related to long COVID.

The Worker also contended that both the delay in addressing his grievance regarding this decision, and the refusal to apply the SLWP scheme to his sick leave, were unfair.

IR - SC – 00003759:

The grievance process commenced at Stage 1 with a local-level meeting held on 11 September 2024. A negative outcome was communicated on 27 September 2024. The Worker appealed this decision, leading to a Stage 2 meeting on 17 October 2024. The outcome, which did not uphold the grievance, was issued on 9 November 2024. The matter then progressed to Stage 3, with the meeting taking place on 19 December 2024. A final decision was not communicated until 12 February 2025.

The Worker stated that the grievance process was unduly prolonged and that the Employer deliberately delayed proceedings at each stage. He asserted that the extended timeframe for resolution had a very negative effect on his wellbeing, causing increased stress and a sense of unfairness throughout the process.

IR - SC – 00003760:

The Worker first commenced sick leave on 12 July 2021. During multiple consultations with his general practitioner (GP), he was consistently informed that he was exhibiting symptoms indicative of long COVID. Based on this ongoing medical advice, the Worker formally requested that his Employer grant him access to the COVID-19 Special Leave with Pay (SLWP) arrangements, a scheme designed to support employees affected by COVID-19. Despite his repeated requests and the medical opinion provided by his GP, the Employer declined to place him on SLWP.

Subsequently, on 11 October 2022, the Worker received an official diagnosis confirming that he was indeed suffering from long COVID. However, even after receiving this formal diagnosis, the Employer continued to deny his eligibility for the SLWP scheme which he stated caused him considerable financial hardship.

IR - SC – 00003759:

The employer stated that there was no undue delay in the handling of the Worker’s grievance. They asserted that the process progressed in line with procedural requirements and that any gaps between meetings or decisions were due to practical constraints, such as the availability of relevant personnel and the impact of the annual leave schedule, particularly over the Christmas and New Year period. The Employer stated that all reasonable efforts were made to ensure the grievance was dealt with thoroughly and fairly at each stage.

IR - SC – 00003760:

Circular 015/2021 outlines the criteria applicable to avail of COVID-19 Special Leave with Pay Arrangements (SLWP) to which the Worker is alleging he is entitled to for the duration of his sick leave between July 2021 and September 2022. The aforementioned circular highlights the four criteria that must be met where SLWP may be granted and extended beyond 28 days for certified COVID-19 related illness.

Specifically, the criteria are as follows:

I.                     An employee had been in the work premises at any time during the 14 days prior to commencing the self-isolation period of a positive case of COVID-19. The work premises includes any location, outside the home, an employer requires an employee to attend as part of their work role, e.g. in community settings, home visits. The attendance at the work premises/onsite must have been known to and/or approved by the manager in advance.

II.                   The employee provides their employer with medical evidence of a positive COVID-19 test including the date of this test.

III.                 In accordance with the employer’s standard management referral process, the Occupational Health Physician (OHP) confirms that the employee is medically unfit to resume work. How this will work in practice in Section 38 organisations will be based on the normal arrangements that apply for medical referrals to determine an employee’s fitness to resume work during sickness absence.

IV.                The OHP confirms that the employee’s absence relates primarily to ongoing COVID-19 illness, and that they are accessing medical care.

Throughout the duration of the Worker’s sick leave, at no stage did he satisfy the four criteria outlined in the circular cited above, that would allow him to avail of SLWP. Namely, the Worker did not provide medical evidence of a positive COVID-19 test including the date of the test and the Worker did not attend an OHP where they stated the Worker was medically unfit to resume work due to an absence primarily relating to ongoing COVID-19 illness. The reasons for absence noted from the first day of absence (12 July 2021) was ‘viral infection’, on 28 July 2021 this was updated to ‘ear infection’ and from 07 September 2021 the noted reason was ear operation. From 20 October 2021 the reason recorded was ‘medical illness’, changing to ‘Vertigo’ on 01 November 2021.

The first time that a COVID-19 related illness was recorded was in a letter provided to the Respondent dated 20 September 2022 which was received on 11 December 2022. The Worker therefore received ordinary contractual sick pay in line with the Respondent’s Sick Leave Policy for the duration of his absence. This sick leave included full pay from 12 July 2021 to 18 August 2021 and half pay from 19 August 2021 to 30 October 2021. For the dates 1 December 2021 to 30 September 2022, the Worker received Temporary Rehabilitation Remuneration (TRR) which can be applied for when payment under the sick pay scheme is exhausted. This was paid retrospectively and processed in June 2023 following emails and a meeting to discuss the employee’s options for retrospective payment.

The Worker returned to work on 1 October 2022 and had subsequent absences from work which were unpaid as he had exhausted the company sick pay for those days. At no point during the Worker’s period of sick leave was he paid less sick pay than that which was outlined in the Company Sick Pay Scheme. During this period of sick leave, the Worker was not entitled to receive payments from the COVID-19 Special Leave with Pay Arrangements (SLWP) as he did not satisfy the criteria set out in Circular 015/202.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

IR - SC – 00003759:

I note that the Worker initiated the three-stage grievance process on 11 September 2024, but the final decision was not communicated until 12 February 2025, more than five months later.

While it is not ideal that the grievance process took over five months to conclude, I do not consider this timeframe to be inordinately long in the circumstances. Grievance procedures—particularly those involving multiple stages and complex issues—can often take a considerable amount of time to ensure that all relevant matters are properly investigated and considered.

It is also not unusual for scheduling difficulties, the availability of key personnel, and the need for procedural fairness to contribute to delays.

Considering the foregoing, I find that a five-month period, while not ideal, does not in itself suggest that the process was mishandled or unreasonably prolonged and accordingly recommend that the Worker deems the matter to be closed.

IR - SC – 00003760:

I note that to qualify for SLWP, according to Circular 015/2021, a Worker must provide their employer with medical evidence confirming a positive COVID-19 test, including the date of the test. In this case, no medical evidence confirming a positive COVID-19 test—including the test date—was provided by the Worker during the relevant period. The first mention of a COVID-19-related illness appeared in a letter dated 20 September 2022, which was received by the Respondent on 11 December 2022, well after the period of absence in question.

Further, the reasons for the Worker’s absence, as recorded during the relevant period, do not indicate a COVID-19-related illness. From 12 July 2021, the reason was recorded as “viral infection”; from 28 July 2021, it was updated to “ear infection”; from 07 September 2021, it was recorded as “ear operation”; from 20 October 2021, the reason recorded was “medical illness”; and from 01 November 2021, it was recorded as “Vertigo.” These documented reasons for absence further support the Employer’s conclusion that the absence was not related to ongoing COVID-19 illness, as required under Criteria IV.

Given that no medical evidence of a positive COVID-19 test was provided during the relevant period and the recorded reasons for absence relate to non-COVID-19 conditions, I find that the Worker did not meet the eligibility criteria for Special Leave with Pay as set out in Circular 015/2021. Accordingly, I recommend that he deems the matter to be closed.