FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE- GALWAY PCCC - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Access to HSE Serious Physical Assault Scheme
BACKGROUND:
2. This case concerns a dispute between the HSE (Galway PCCC) and SIPTU in relation to a claim that the worker was denied access to the HSE's Serious Physical Assault Scheme (SPAS) following a physical assault at work. The Union contends that the worker was unfairly refused access to the SPAS by Management following an assault at work and two periods of sickness absence as a result.
Management contends that the worker did not qualify for the SPAS because her medical certificates stated that she was absent for reasons other than physical injury which was a specific requirement for participation on the Scheme.
On the 18th June 2013 the worker referred the matter to the Labour Court in accordance with Section 20(1) of the Industrial Relations Act, 1969 and agreed to be bound by the Court's recommendation. A Labour Court hearing took place on 5th February 2014.
UNION'S ARGUMENT:
3 1 The worker's initial absence was caused directly as a result of the physical assault. The next absence was stress related and was specifically related to her experiences in relation to the physical assault. The worker should have been accepted for participation on the SPAS as the scheme does not specifically exclude such illnesses that are brought on by physical assaults that occur in the workplace.
MANAGEMENT'S ARGUMENT:
4 1 Management applied the terms of the SPAS in strict accordance with its provisions which have been collectively agreed with the Unions. It is regrettable that the worker was assaulted in the workplace yet management cannot apply the SPAS to her as the medical certificates covering her absences did not refer to physical injuries sustained as a result of a serious physical assault.
RECOMMENDATION:
The matter before the Court was brought under Section 20(1) of the Industrial Relations Act 1969 and refers to the Claimant’s application for access to the HSE Serious Physical Assault Scheme (SPAS).
On 11thMay 2012 the Claimant, who is employed as a Multi-Task Attendant, was the subject of a physical assault by a patient in the course of her duty. On 16thAugust 2012 she made an application under the provision of the SPAS and was refused. An incident report form was completed by the Claimant on the day.
The Union on behalf of the Claimant sought application of the scheme in respect of unpaid premia and expenses incurred as a result of the physical attack she endured. The Union also sought to have the Claimant’s sick leave record amended to reflect the benefits of the SPAS.
Management refused the application on the grounds that the medical certificate submitted by her in respect of her absence from 12thMay 2012 onwards stated that she was suffering from “illness” and “stress-related illness” and as the special sick pay provisions of the SPAS only apply in respect of a physical injury her absence fell under the regular non-officers' sick pay scheme.
Having considered the submissions of both parties the Court notes that the provisions of the SPAS state that the employee’s Line Manager should refer him/her to Occupational Health as soon as possible after the incident to assess the employee’s injuries and his/her capability to resume work.
The Claimant completed the appropriate form and her application was approved by two Managers. The Scheme states:
- “If deemed eligible the line manager/appropriate manager must complete the form and submit it to the relevant Senior Manager/General Manager along with copies of the Incident Report Form, Occupation Health and other relevant reports, witness statements etc. for a recommendation.
The Senior Manager/General Manager will make a recommendation on the applicability of the Scheme and submit it to the Assistant Director of HR for final decision.”
In this case the Claimant was referred to Occupational Health Services and she attended on two occasions following the incident, however, it appears that no report was furnished to Management therefore it was not possible to make an informed decision on her application. Consequently she did not receive final approval under the Scheme.
The Court notes that the Claimant has given permission for the Occupational Health Consultant’s Report(s) to be furnished to Management. On that basis the Court recommends that a re-assessment of the Claimant’s application under the SPAS should be carried out as expeditiously as possible with a view to resolving the matter in dispute.
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
24th February 2014______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Andrew Heavey, Court Secretary.