ADJ-00002861

ADJUDICATION OFFICER DECISION 

Adjudication Decision Reference: ADJ-00002861

Complaint(s)/Dispute(s) for Resolution:  

Date of Adjudication Hearing: 18/11/2016

Workplace Relations Commission Adjudication Officer: Caroline McEnery

Procedure: 

In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Attendance at Hearing: 

Complainant’s Submission and Presentation:

• The Complainant is an employee who works as a fire fighter of the Respondent Company.

• The employee is taking his complaint under Section 13 of the Industrial Relations Act 1990.

• The Complainant is seeking an Adjudication Hearing in respect of an injury that occurred at work. The Complainant referred the complaint with specific reference to the provisions outlined by an Accident Pay Scheme held by the Respondent.  

• The Complainant is seeking to appeal a decision made by the Director of Human Resources of the Respondent that was made following an internal investigation where the company have refused to apply the Accident Pay Scheme rather than the Illness pay scheme as a result of an absence.

• The provisions outlined by the Accident Pay Scheme apply to cases where an employee of the service provided by the Respondent is injured in the actual discharge of duty and by some injury attributable solely to the nature of that duty.

• The Complainant stated that he suffered an injury at work on the 30 September 2015. The Complainant states that he was cooking as part of his duties and that he fell at work and damaged his Achilles tendon when he was cleaning the barbecue.

• The Complainant argues that other staff members are listed as receiving the Injury at Work Scheme Benefits who had been injured outside of the main duty of providing the service in comparable situations.

• The Complainant stated that a consistent practice has not been applied to him even though he has already received the Accident Injury at Work Scheme Benefits when he burnt himself and he was doing the exact same job at the time ie cooking.

• The Complainants wages and pension benefits are effected by not receiving the Accident Pay Scheme on this occasion as they are enhanced.

• The Complainant has stated that there is an insurance scheme in place so the scheme is not at a cost to the Respondent. 

Respondent’s Submission and Presentation:

• The Respondent stated that the injury was not a work related accident and that it was not during the course of the Complainant conducting his duties.

• The Respondent stated that cooking is a voluntary part of employee duties and that it is not compulsory.

• The Respondent claims that the Accident Injury Pay Scheme is specific in its intent. It is to compensate employees for absences as a result of an injury sustained in the “actual discharge of their duties and by some injury attributable solely to the nature of his duty”. This is outlined in a 1994 agreement with SIPTU.

• The Respondent has stated the Complainant received what they believe to be his full entitlements under the normal Sick Pay Scheme due to his injury of the 30 September 2015.

• The Respondent has stated that the case was investigated internally by the HR Director and the employee case was unfounded based on the details of the policy in place.

Issues for Decision:

The issue for decision is to establish whether the Complainant should receive the Injury at Work Scheme benefits as per the policy and in line with custom and practice previously applied.           

Legislation involved and requirements of legislation:

This case is referred under Section 13 of the Industrial Relations Act which states that "Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him"

Decision:

Section 41(4) 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.

A number of examples regarding the application of the scheme were presented by both parties.  However, the evidence presented is not conclusive regarding the application of the scheme.

The Adjudicator takes into account the fact that the Respondent did pay the Complainants A&E charges. In addition, the Respondent required the Complainant to surrender payments received from social welfare which according to the Complainant is indicative that he should be entitled to Accident Pay rather than the normal Sick Pay afforded to him. However, these facts alone cannot solely contribute to an indication that the Complainant should be entitled to Accident Pay. 

It is clear from the policy put in place and agreed with the union that the intent in relation to same was specifically related to accidents that may occur while the fire fighter was carrying out duties solely and specifically related to their duties as a fire fighter. 

I find that the Accident Injury Pay Scheme refers only to a guarantee of this Accident pay in recognition of the nature of the work conducted by the Complainant and his work colleagues and the potential danger faced upon completing such work. 

I have investigated the above complaint and make the following decision in accordance with the relevant legislation set out above and the following are my conclusions: 

• I am finding that Accident Pay is only paid when an employee sustains an injury when on duties solely associated with firefighting duties.

• I am finding that the Complainants injury was not sustained in the actual discharge of his duty.

• I find against the Complainant in regards to the complaint and I find that the Respondent acted correctly in the application of the Accident Injury Pay Scheme. 

Dated:   04 April 2017