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Area School Teachers' Collective Agreement (ASTCA)

Appendix 6: Medical Retirement – Serious Illness (ASTCA)

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(Where “notes” are used in this Appendix they are explanatory and not substantive.)

6.1

A teacher with a terminal illness may apply for medical retirement under either the terminal illness provision or the serious illness provision but not both and will be entitled to one payment only.

Note: This provision excludes any claim on disregarded sick leave.

6.2

The purpose of this provision is to:

(a) Provide the opportunity for teachers, currently in service, who are declared medically unfit to retire from teaching with dignity;

(b) Give the ability for school boards to recruit the best possible teachers to vacant permanent positions without delay.

Note: This provision is for teachers currently in service and cannot be granted retrospectively. ‘Currently in service’ means the teacher is employed in a permanent position at the time the application for medical retirement is made and when concurrence is given by the Secretary for Education. For clarity this applies whether a teacher is currently on paid or unpaid sick leave.

6.3

(a) A permanently appointed teacher, currently in service, may be granted medical retirement under this clause in circumstances where the teacher has a serious illness which causes her/him to be incapable of continuing to work or returning to work.

Note: Serious illness includes serious injury. Stress is not considered to be a medical diagnosis and so any applications for concurrence on the basis of stress will be declined. However, the medical impact of stress may meet the criteria set out in this provision.

(b) A teacher is considered to be medically unfit for work by reason of serious illness if they are wholly or substantially unable to perform the duties of the position at the school and is unlikely currently or at any time in the foreseeable future to be able to undertake new employment in any other teaching position in the Education Service (as defined in section 2 of the State Sector Act 1988).

Note: An employee is not eligible for medical retirement where they are receiving weekly compensation from ACC.

(c) Either the employee or the employer may initiate the medical retirement process. The employer must have reasonable grounds to initiate the process.

Note: “Reasonable grounds” arise where the employee for a prolonged period is wholly or substantially unable to perform the duties of the position at the school due to medical reasons.

6.4 Employee Initiated Process

(a) If the employee initiates the process, the employee shall provide to the employer from a registered medical specialist in writing the following: a description of the employee’s illness, a statement as to whether or not the employee will be able to wholly or substantially perform her/his duties both currently and in the foreseeable future, and the reasons for the decision.

Note: There is no provision for an employer to request a second medical specialist certificate

(b)

(i) If the employee is unable to obtain a registered medical specialist opinion in a timely fashion, or by virtue of distance, then the employee will undergo a medical examination from a registered general practitioner. The general practitioner shall provide in writing the following:

• a description of the employee’s illness, a statement as to whether or not the employee will be able to wholly or substantially perform her/his duties both currently and in the foreseeable future, and the reasons for the decision; and

• attestation that the employee could not obtain an opinion from a registered medical specialist.

(ii) The employer may require a further medical certificate from a registered general practitioner nominated by the employer.

(iii) If two medical certificates are sought and the medical opinions conflict, the employee and employer shall attempt to agree on a third registered general practitioner or medical specialist to provide a further medical certificate. If they cannot agree, the employer shall nominate the registered general practitioner.

(iv) All costs associated with the second and third medical certificates shall be met by the employer.

6.5 Employer Initiated Process

(a)

Pre-process

Where the employer has reasonable grounds to consider that the employee may be medically unfit for work by reason of serious illness as per clause 6.3(b) the employer will in the first instance:

(i) write to the employee outlining the concerns and the grounds on which it has formed a view that medical retirement may be an appropriate option;

(ii) inform the employee they are entitled to attend up to three sessions from an employee assistance programme (EAP) and extend to the employee the opportunity to access EAP counselling;

(iii) outline the medical retirement process should the employer proceed with the process; and
(iv) inform the employee of their right to have a representative.

Note: Reasonable grounds is explained above. The EAP provides to the employee direct access to an independent counsellor on a short term, confidential basis to address personal issues that impact on the workplace. Where the EAP provider recommends further sessions the employer shall consider whether to fund additional sessions.

Initiation of Process

(b) Registered Medical Specialist

Following the completion of the pre-process

(i) Where the employer proceeds with the process, the employee shall undergo a medical examination from a registered medical specialist nominated by the employer.

Note: No concurrence will be given without the specified medical evidence being provided.

(ii) The medical specialist shall provide in writing a description of the employee’s illness, a statement as to whether or not the employee will be able to wholly or substantially perform her/his duties both currently and in the foreseeable future, and the reasons for the decision.

(iii) The employee is entitled to seek a second medical specialist’s opinion.

(iv) Where two medical specialist opinions are sought and these medical opinions agree that the employee will not be able to wholly or substantially perform her/his duties both currently and in the foreseeable future, then the employer may seek concurrence to medically retire the employee.

(i) If the employer is unable to obtain a registered medical specialist opinion in a timely fashion, or by virtue of distance, then the employee will undergo a medical examination from a registered general practitioner nominated by the employer (or two general practitioners if the employee so wishes, one nominated by the employer and the other by the employee). The general practitioner(s) shall provide in writing the following:

• attestation that the employee could not obtain an opinion from a registered medical specialist.

(ii) Where two medical opinions from a general practitioner are sought and these medical opinions conflict, the employee and employer shall attempt to agree on a third registered general practitioner to provide a further medical certificate. If they cannot agree, the employer shall nominate the registered general practitioner.

(d) Costs associated with examinations

All costs associated with the medical examination(s) and the EAP shall be met by the employer.

6.6

Where the majority of medical evidence does not support a claim for medical retirement under this provision this process shall cease.

Note: The intention of this clause is to bring an end to this process.

6.7 Seeking Concurrence

(a) Where the majority of medical evidence supports the application for medical retirement as per clause 3(b), the employer shall seek the concurrence of the Secretary for Education to medically retire the employee.

Note: Applications for concurrence for medical retirement will be granted where the following criteria have been met:

(b) All applications for concurrence must be in writing and accompanied by the correct documentation.

Note: 1: The process has been followed; and

Note: 2: The medical evidence has been supplied in sufficient detail so as to support the application for medical retirement as specified in clause 6.3(b).

6.8 Medical Retirement Options

Upon receiving notification that the Secretary for Education has granted concurrence, the employer shall notify the employee that they are medically retired as of the date of the Secretary’s notification. No notice is payable. The employee shall be medically retired and choose one of the following medical retirement options:

Note: The employee is not entitled to change options once the option has been actioned. Disregarded sick leave is not able to be converted to a payment under any of the provisions of medical retirement

(a) Medical Retirement Payment

A lump sum payment of 13 weeks’ salary plus an additional week for each year of service after 25 years service, up to a maximum of 13 weeks (i.e. the total maximum payment payable under this provision is 26 weeks). Any paid sick leave taken by the employee in the four weeks prior to the application to medically retire shall be subtracted from the payment.

Note: Payment will be based on the normal fortnightly salary of the employee at the time of medical retirement. It does not attract any salary increment that may fall due after the date of medical retirement. Holiday pay to the date of medical retirement is payable. The lump sum does not attract holiday pay. 26 weeks equals 13 weeks payment plus up to 13 weeks payment for each year of service after 25 years.

(b) Post-dated medical retirement

The employee remains on paid sick leave and receives their normal fortnightly salary until the sick leave entitlement is exhausted. All entitlements continue to be paid. In the event that the employee deceases before sick leave is exhausted no claim can be made by any person or agency on the outstanding balance. The employee remains employed for the purpose of payment of salary only.

Note: The employee is entitled to continue to receive superannuation employer contributions, and salary increases as per the ASTCA. Should a new ASTCA be settled after the employee’s sick leave entitlement is exhausted, no back payment of any negotiated increases shall apply. The employee is not entitled to increment up the salary scale where they have not met the professional standards. Holiday pay will accrue during this period in accordance with the ASTCA provisions. Where an employee elects post-dated medical retirement they will continue to be paid sick leave until it is exhausted.

The employee will receive the remainder of their sick leave as a lump-sum payment.

Note 1: For the sake of completeness please note that all payments are subject to normal tax provisions.

Note 2: The employee can cash up the outstanding sick leave balance as at the final day of employment.

6.9 Vacant Position Appointment

From the date the Secretary for Education gives notification of concurrence to medical retirement, regardless of the option chosen by the employee under clause 6.8, the employer shall be entitled to make a permanent appointment to the position as if that position were vacant.

Note: This position shall be advertised in the Education Gazette as an actual vacancy position. The Education Council will be notified by the employer that the employee has been medically retired.

6.10 Eligibility for Compassionate Grant

A compassionate grant as per clause 3.22 is payable to the estate of an employee who deceases within 12 months of the date medical retirement is approved under this provision (for the sake of clarity this date is from the date of retirement as per clause 6.8) except that if the amount of sick leave remaining under option clause 6.8(b) exceeds 12 months, the entitlement to the compassionate grant shall remain until the sick leave has been exhausted.

Note: Regardless of which entitlement is activated under this scheme, the date of medical retirement is the date the Secretary for Education granted concurrence.

6.11 Re-entry policy

It is not contemplated that when an employee is medically retired from the teaching profession that she/he will return to work as an employee in the future. It is however acknowledged that in exceptional circumstances an employee may become medically fit to work in the teaching service.

Where an employee who has been medically retired under any clause set out in this Appendix is declared medically fit by a registered medical specialist and is reemployed in any teaching position in the Education Service (as defined in section 2 of the State Sector Act) the following shall apply:

(a) The employee shall be entitled to sick leave in accordance with the provisions of the Holidays Act 2003 and not the provisions in the ASTCA.

(b) Where employment in any teaching position in the Education Service (as defined in section 2 of the State Sector Act) commences within a number of weeks which is less than the number of weeks of payment received by the employee under clause 6.8(a) the employee shall refund the difference between the number of weeks for which they were without employment and the number of weeks for which the payment was calculated.

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