Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00010001-001

02/03/2017

This is a complaint taken under the Industrial Relations Acts 1969-1990.

The Complaint is that having incurred an injury which arose out of a road traffic accident while the Complainant was performing tram driving duties, the Respondent refused to pay him sick pay under the Respondent’s Occupational Sick Pay Benefit Scheme.

The relief sought is that the losses which he incurred as a result of not being paid under the scheme (agreed at €1970) be now paid to him.

The Respondent’s Occupational Injury Sickness Payment Scheme is as follows:

The Company Occupational Injury Sick Pay Scheme has been introduced for those employees who sustain a legitimate occupational injury as a result of an accident/incident during the course of their day to day duties, through no fault or negligence on the part of the employee.

Qualification

To qualify for the Occupational Injury Sick Benefit Scheme an employee must satisfy and fully cooperate with the general provisions of the Company Sick Pay Scheme. In addition to satisfying these general provisions of the Company Sick Pay Scheme. In addition to satisfying these general provisions the Company must be satisfied beyond reasonable doubt that;

1. That a confirmed accident/incident occurred at work
2. That the accident/ incident has resulted in a legitimate injury.

Failure to meet the above criteria will result in the occupational sick pay scheme not being applicable. However, in such circumstances, as employee may be entitled to benefit from the regular sick pay scheme already outlined above.

The Occupational Sick Pay Benefit Scheme is a collective agreement between trade unions and management and has the imprimatur of the Labour Court.

1. The Complainant has worked as a tram driver with the Respondent since 1 May 2006
2. The Complainant was injured while driving a tram on 21 May 2016.
3. The incident arose in the following circumstances:

(a)    A third party car was stationary on the “swepth line” of the tram. The swepth line includes the tracks together with the sweep of the tram, that is, the space alongside the tracks taken up by the tram as it travels.

(b)    The third party car was on the swepth line, indicating an intention to turn right, as is permitted by the junction.

(c)    As the tram approached the stationary third party car, the Complainant continuously sounded his horn in the hope that the car would move off the swepth line and he braked the tram. However the tram did not stop before a collision with the third party car occurred.

(d)    As a result of this collision the Complainant was brought to the A&E department of Tallaght Hospital where he was diagnosed as having suffered soft tissue injuries

(e)    Due to his injuries he forced to take time off work from work from 22 May 2016 until 11 July 2016.

4. The Complainant applied for sick pay under the Occupational Injury Sickness Payment Scheme.
5. On 13 June 2016 the Complainant’s manager wrote to him to inform him that the application had been refused. The reasons provided were that under the terms of the scheme the Respondent must be satisfied beyond all reasonable doubt that

(a)    That a confirmed accident/incident occurred at work

(b)    That the accident/incident occurred through no fault or negligence on the part of the employee concerned

(c)    That the accident/incident has resulted in a legitimate injury.

6. The Complainant appealed this decision. The appeal was heard on 4 August 2016 and the appeal decision issued on 18 August 2016. The decision was that the scheme did not apply to the Complainant because in the circumstances, he was in part at fault for the injury because he did not pull the emergency brake quickly enough.
7. The refusal to apply the scheme was because it was found that the Complainant was partly at fault for the accident and therefore did not meet the criteria establishing eligibility under the sick pay scheme.
8. A further appeal hearing on 11 October resulted in a decision again refusing the Complainant entitlement under the sick pay scheme because the evidence showed that the incident was in part the fault of the Complainant by failing to use the Emergency Brake in time and thereby the eligibility criterion (of there being no fault) was not met.
9. At the hearings the Complainant denied that he accepted he was partly at fault for failing to use the Emergency Brake in time.
10. He points to the fact that the insurance company for the third party had since accepted full liability for the accident
11. The Complainant submits that the Respondent are artificially relying on an exemption based on fault when this is not in the qualifying criteria set out in the scheme (which only deals with proof of injury and proof that the incident occurred, neither of which is in dispute)
12. The Complainant submits that the Respondent cannot rely on a criteria that he acted negligently when the third party insurance company have fully accepted liability for the incident
13. The Complainant submits that the argument raised by the Respondent in their attempt to defeat the claim (cost of sick pay claims and multiple sick pay claims being taken by the Complainant) are not factors that should be taken into account when assessing eligibility under the scheme.
14. The facts are the eligibility criteria are (a) proof that the incident occurred and (b) that the Complainant was injured as a result. These must be proven on the criminal standard of beyond all reasonable doubt. But as neither of these facts are in dispute the Complainant should be entitled to the benefit of the scheme.
15. It was accepted by the shop steward who was supporting the Complainant’s case, that the Emergency Brake should be applied when there is an obstacle in the swepth path of the tram. It should not however be used unless there is an emergency as the Emergency Brake produces an immediate stop and if it were unnecessarily used injuries could occur.

1. The Occupational Injury Sick Pay Scheme is clear. There is a pre requisite to eligibility which is that an employee must incur injury through no fault or negligence on their part.
2. This agreement cannot be condemned as it is a collective agreement signed off upon by both trade union and management and the Labour Court.
3. The parties are bound by the terms of the agreement therefore if there is any fault or negligence by a driver, the scheme does not apply
4. The CCTV was viewed by the first instance decision maker and then by the appeals officer. The tram taco graph was also considered.
5. This evidence shows that while the Complainant sounded the horn 40 metres prior to the collision locus, he only applied the emergency brake 8 metres before the locus. This was too late for the emergency brake to be effective. The failure to brake was negligent.
6. It is accepted by the shop steward on behalf of the Complainant that the emergency brake is to be used when there is an obstacle on the swepth path. The Complainant clearly saw the obstacle evidenced by the fact that he sounded the horn, however he did not use the emergency brake early enough. In doing so, he contributed to the collision occurring which was avoidable.
7. It is a prerequisite for the scheme to apply that there is no fault or negligence by the employee and this pre-requisite cannot be ignored.
8. The Respondent conceded that the wording of the scheme meant that even if there was a small percentage of contributory negligence by an employee, he or she still would not be eligible for sick pay.

The wording of the Occupational Injury Sickness Payment Scheme is peculiar in many respects and, in this case, it has resulted in a number of peculiar outcomes.

It is unusual for eligibility under a sick pay scheme to be subject to a criminal standard of proof. It is usual for eligibility to be proven on a civil standard.

However in this case, the qualifying criteria under the scheme are that the Company must be satisfied beyond all reasonable doubt that :

1. A confirmed accident/incident occurred and
2. The accident/ incident has resulted in a legitimate injury.

However under the qualifying paragraph the employee must comply not only with the 2 criteria but also the “general provisions” of the sick pay scheme.

The first paragraph of the scheme states the purpose of the scheme as being for the benefit of employees who sustain a legitimate occupational injury as a result of an accident or incident during the course of their day to day duties, through no fault of negligence of their own.

While this line is not set out as a qualifying criteria it is reasonable to accept that it is part of the general provisions of the scheme and as such, it cannot be ignored.

The criminal standard of proof led to confusion for the first decision maker of the Respondent. In his decision to refuse the entitlement sought he did so stating that the general provision (that there be no fault or negligence of the employee) was subject to the criminal proof of beyond reasonable doubt, which doesn’t appear in the scheme at all as it is in the paragraph setting out the purpose of the scheme.

This demonstrates what in my view was made clear during the course of the hearing, which that those administering the scheme on behalf of the Respondent had no understanding of the wording of the scheme and the burdens of proofs set out within it. No where in the scheme does it state that negligence had to be proven beyond all reasonable doubt and legally speaking this is non sensical.

Negligence is a civil matter. By its own definition, it is fault established on the balance of probabilities. For the manager to state in his letter of 13 June 2016 that the employee’s negligence was to be proven beyond all reasonable doubt, led to confusion both at the adjudication hearing and no doubt, before then.

What demonstrated this confusion further was the evidence that during a disciplinary investigation of the Complainant in relation to the incident (the proof for which being the normal civil standard of proof) the charge against the Complainant was dismissed, because it was not proven to meet a criminal standard of proof.

So despite this somewhat confused approach to matters that are usually relatively straightforward matters requiring civil proof, the wording of the Occupational Sick Pay Scheme as collectively agreed, it is a wording that has been agreed and therefore binds the parties, into which I may criticise as I clearly have done, but cannot remedy.

One aspect of the scheme   is clear, if there is fault or negligence on the part of the employee the purpose for the scheme is not met. This makes sense as if there was significant fault on the part of the employee and yet recovery under the scheme was still possible, then there would be a dangerous incentive in place in the scheme.

However due to the current wording it follows that even if there is as little as a 2% contribution of fault to an incident then the sick payment can be avoided, which is undesirable to say the least.

The poor wording of this scheme creates a situation where it becomes impossible for a tram driver to predict whether he will be covered by the scheme or not. Or worse still it means that tram drivers will be encouraged to increase driving extremely defensively, less they risk being deprived of cover, which itself can lead to accidents or can lead to choices that will increase the likelihood of accidents occurring.

In terms of the point raised by the Complainant that there was a finding by the insurance company of the third party that he was 100 % liable for the accident, this does have some significance however it cannot be that the operation of the sick pay scheme is determined by whether or not an insurance company of a third party concedes liability or not. Such matters fall outside the employment relationship and even on a practical basis it could not be the case as civil proceedings can take a long time before liability is established or accepted and the establishment of fault or negligence within the workplace cannot be delegated to the operation of a third party litigation process.

I accept that in failing to pull the emergency brake some seconds before he did, the Complainant contributed, in part, to the collision occurring. As a result it is unavoidable to find that he was partly, and I mean in an insignificant way, at fault for what occurred. I have no evidence to contest the opinion of two tram drivers which when asked were of the opinion that had the emergency brake been applied when he first saw the obstacle (and when he sounded his horn as opposed to when he did) then the collision would have been averted. Clearly the third party is mainly at fault for being positioned in a stationary position on the swepth line, but mainly, does not mean fully.

Regretfully, due to the constraints of the wording of the agreed Occupational Injury Sickness Pay Benefit Scheme, I cannot find this complaint to be well founded.