ADJUDICATION OFFICER RECOMMENDATION
Adjudication Decision Reference: ADJ-00005111
Dispute for Resolution:
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-00006093-001
22/07/2016
Venue: WRC; Lansdowne House, Ballsbridge, Dublin 4.
Date of Adjudication Hearing: 20/02/2017
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 13 of the Industrial Relations Act, following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
Background
The Complainant is employed as a Nurse since 2002. She has alleged that she injured herself at work and has not had the Injury Allowance applied to her. She is seeking the application of the Allowance and compensation for the implications of not receiving this payment during her absence.
Complainant’s Submission and Presentation:
On 15th May 2016 the Complainant injured her finger at work. She is seeking the application of the provisions of the Injury at Work Scheme for absences from work from 15th May to 27th September 2016. She is also seeking compensation for loss of trust and confidence suffered and the failure to apply the scheme to her. The Respondent applied the standard public service sick pay scheme during her absence from work. She went on half pay on 21st June and zero pay from 27th June 2016. She was then in receipt of Social Protection payments. On 30th June 2016 her union wrote to the Respondent seeking access to the Injury at Work Scheme. They wrote again on 5th July as they got no reply. The Respondent did not reply to this request and instead referred her to the Occupational Health to determine if she would qualify for a separate scheme. The union ‘phoned the Respondent to state that an application for critical illness protocol was inappropriate. The union wrote again on 8th July and referenced her extreme hardship the Complainant was suffering. Having received no response the union again wrote on 14th July expressing frustration. The Respondent waited 3 weeks after the Complainant was without pay and 8 weeks after the injury had occurred to present an application for payment of temporary rehabilitation remuneration (TRR). Compared with the injury at work scheme the TRR would seriously disadvantage her. On 18th July the Respondent stating that the Complainant’s absence does not fall under the category. On 22nd July the union wrote to dispute the interpretation. Eventually the Respondent replied but made no reference to the injury at work scheme. The Complainant asserts that the injury at work scheme applies to Nurses and midwives who commenced employment prior to 2013 under the applicable superannuation scheme. The schemes are practically identical with only minor difference. One such difference arises in respect of the payment of an injury allowance where an employee is injured in the course of their work through no fault of their own. The allowance amounts to 5/6th of remuneration. In addition to providing for the implementation of the serious physical assault scheme the Department of Health chose these Circulars as a means to amend the Voluntary Hospital Superannuation Scheme (VHSS) article 23. Each of the Circulars provides that “after the expiration of the special sick pay outlined the following new Article of NHASS/VHSS may be invoked: This article of the scheme provides for payment of a gratuity or an allowance in money for life or for a limited period as the health agency may consider reasonable where the claimant in question is injured: (i) in the actual discharge of his/her duty and (ii) without his/her own default.
It is the Complainant’s position that she suffered an injury at work through no fault of her own. The Respondent claims that she is only entitled to in circumstances where there has been a serious physical assault in the course of her duty. The Respondent’s interpretation is incorrect. According the schemes referenced above she is entitled to an allowance of 5/6th of salary, less Social Welfare payments. For the Respondent to suggest that the new Article may only be invoked in the context of the serious physical assault scheme, when no wording to that effect forms part of the new Article, is reading into the Article something which does not exist and is an incorrect interpretation of the Article. The Respondent’s decision not to award the Complainant an injury allowance as a result of an injury she sustained at work was wrong and she should have been entitled to it.
Respondent’s Submission and Presentation:
The Respondent at the outset stated that the Complainant had not invoked or exhausted the grievance procedures. They stated that this matter before the hearing had collective implications and should not be the subject of an Adjudication hearing. They also questioned whether the Complainant had contributed to her injury. They accepted at the hearing that she had not.
The Complainant suffered an injury to her finger allegedly in the course of her work. She was placed on sick leave under the operation of the Public Service Sick Leave Scheme, which expired shortly afterwards. She sought that the provisions of that scheme not to be applied to her and through her union sought the application of a payment through the scheme for employees absent as a result of a serious physical assault, incurred in the course of their duty. The provisions of that scheme do not apply to the Complainant. She was advised to apply for payment through the TRR. She applied for that scheme and was paid from 28th June to 31st August 2016. She returned to work on 23rd September 2016.
The Respondent submits that it acted in accordance with its own and the Health Service policies. Due to previous episodes of sick leave in the preceding years her entitlement ended on 28th June 2016. The next available payment under the Public Service Pay Scheme is the TRR. The Respondent does not agree that the Complainant has any eligibility under what the union allege. The Respondent sent her to the Occupational Health provider to ascertain whether she was eligible for the Critical Illness Provisions of the Public Service Sick Leave scheme. It was decided that she was not eligible for payment under that scheme. The Respondent then invited her to apply for the TRR scheme. They reject the union’s assertion that they failed to respond to her grievance. It is the Respondent’s position that she had not formally invoked the grievance procedure. The Respondent met with the Complainant and her union representative to advise that they had done all they could.
It is their position that they have at all times dealt fairly with her grievance. What the Complainant seeks to rely upon deals with serious physical assaults suffered by staff in the course of their duties. This has no application to the Complainant’s situation. They have complied with the terms of the Public Service Sick Pay Scheme. There was comprehensive engagement with the Complainant on this matter. This complaint is rejected.
The Respondent stated that they did not interpret the “NHASS Scheme dated January 1998 as new. The Complainant’s injury was not investigated because it is their position that this does not apply in this case. This was not as a result of a “serious physical assault incurred“. They also stated that this complaint has implications for the Mental Health Sector. No nurse in this hospital has ever received the payment that was sought by the Complainant. This issue is outside the determination of a single complaint and it has collective implications. The complaint is rejected.
Findings:
I find that the Complainant has raised a grievance albeit not in a regular format. I note the emails from the union representative dated 5th and 14th July 2016 which refers to the Grievance Procedure.
I am satisfied that there was an injury at work. I note that the matter of whether the Complainant contributed to her injury was not raised in the past and so will not be addressed by this adjudication.
I note that it is accepted that no nurse has ever received a payment in the circumstances which has arisen in this case.
I note that the Respondent has affirmed that they have applied all the schemes that are available to them.
However I find that it is most unusual that there is no scheme to deal with an injury at work, not a serious assault, outside of the normal sick pay scheme and the TRR. Surely injuries at work occur which are not as a result of a “serious assault”.
I conclude that this matter needs addressing.
I note the interpretation that the union has placed on this matter and it is interesting and commendable. However I am satisfied that this matter is greater than the Complainant’s claim.
I find that this has implications for the Mental Health Sector and so should be addressed in that appropriate forum.
Recommendation:
Section 13 of the Industrial Relations Act requires that I make a decision in relation to the dispute.
I recommend that as this matter has collective implications I should not make a recommendation in respect of this Complainant.
I recommend that the parties accept that this matter needs addressing in a collective format.
I recommend that this issue should be addressed without delay and the process should be started within six weeks of the date below and completed within a reasonably short time frame.
I recommend that should this forum produce a change in how such injuries are addressed then it should be applied to the Complainant.
Eugene Hanly
Adjudication Officer
Dated: 15th May 2017