ADJUDICATION OFFICER RECOMMENDATION

Adjudication Recommendation Reference: ADJ-00005437

Dispute:

Date of Adjudication Hearing: 09/02/2017

Workplace Relations Commission Adjudication Officer: Aideen Collard

Location of Hearing: Lansdowne House, Ballsbridge, Dublin 4.

Procedure:

In accordance with Section 13 of the Industrial Relations Act 1969, following referral to me by the Director General, I inquired into the aforesaid dispute received by the Workplace Relations Commission (hereinafter ‘WRC’) on 17^th October 2016, and gave the Parties an opportunity to be heard and to present any relevant evidence. I note that there was consent from the Respondent to the investigation of this dispute by an Adjudication Officer. The Complainant was represented by SIPTU and the Respondent Transport Company represented itself with a number of HR Personnel and Managers giving evidence on its behalf. I proceeded to hearing on 9^th February 2017. All oral evidence, written submissions and supporting documentation presented by both Parties have been taken into consideration when coming to the recommendation as set out hereunder.

Background:

The Complainant is employed as a Driver by the Respondent Transport Company. He seeks resolution of a dispute under Section 13 of the Industrial Relations Act 1969, pertaining to the Respondent’s refusal to discharge payment of a €480 shortfall in wages from its Occupational Sick Pay Scheme (hereinafter also ‘OSPS’). This represented three days pay not covered by the Regular Sick Pay Scheme in relation to two weeks’ sick leave following a work-related accident. The terms of the Scheme were furnished, confirming that it was 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 their part. To qualify for the Scheme, employees must satisfy and fully cooperate with the general provisions of the Scheme. Rather unusually, the collectively agreed terms state that in addition to meeting these general provisions, “…the Company must be satisfied beyond reasonable doubt that: (1) that a confirmed accident/incident occurred at work.” and “(2) That the accident/incident has resulted in a legitimate injury.” Both Parties are also agreed that: (1) all internal procedures have been exhausted; (2) under its own collective agreement, further recourse lies to the WRC under Section 13 of the Industrial Relations Act 1969; (3) the role of the Adjudication Officer should be confined to assessing the fairness of procedures adopted by the Respondent in arriving at its decision to refuse the Complainant payment from the OSPS as opposed to engaging in a fact-finding process (which would not be practically feasible in any event); (4) the OSPS is in place for the purposes of paying employees for sick-leave owing to work-related injuries and (5) the only issue in dispute is whether the accident occurred through no fault or negligence on the part of the Complainant and not whether the accident/injury has resulted in a legitimate injury. I also confirmed that there was no further litigation arising from the accident/incident in question.

Summary of Complainant’s Case:

The Complainant was on duty in his capacity as a Driver for the Respondent Transport Company on 21^st May 2016 when a car broke a red light and collided with the side of the vehicle he was driving. He immediately called the incident into base before putting the vehicle out of service. When he returned to base, he was offered a short time to recover but felt unwell and was released from duty. His GP signed him off from work for two weeks due to stress and anxiety. When he returned to work and having made the necessary documented claim, he expected to have his shortfall in wages of €480 discharged under the Respondent’s OSPS as his sick leave arose from a work-related accident.

The Complainant received a letter dated 1^st June 2016 from his Service Delivery Manager confirming that his application for the OSPS was unsuccessful. It referred to the duty to cooperate with the general provisions and without interviewing him, found: “In addition to satisfying these General Provisions the Company must be satisfiedbeyond reasonable doubt; - That a confirmed accident/incident occurred at work. - That the accident/incident occurred through no fault or negligence on the part of the employee concerned. - That the accident/incident has resulted in a legitimate injury.” and “…taking into account the totality of the evidence, including CCTV, I am writing to you to outline that your application for the Occupational Injury Scheme has been unsuccessful.”

The Complainant appealed this decision internally and along with his Union Representative, attended an appeal hearing with his Contracts Manager on 13^th July 2016. The Complainant contended that there was nothing he could have done to have avoided the accident in question and had done all that he was required to do to minimise the impact. Minutes of the meeting include a discussion of how his incident differed from that of another employee who had successfully appealed refusal of the OSPS, and what evasive action he could have taken to avoid the collision. The Complainant contended that as he was hit from the side by a car which had broken a red light, there was nothing he could have done to avoid the collision. He also referred to a phone call with his Service Delivery Manager subsequent to the first refusal, where it was suggested that his lack of actions could have contributed. The Contracts Manager concluded the meeting by indicating that as he did not drive the vehicles in question, he would speak to the Service Delivery Manager and look into it all.

A letter dated 29^th July 2016 to the Complainant from the Contracts Manager confirmed that his appeal was unsuccessful as he did not satisfy the criteria for the OSPS and referred to a memo as elaborating on the reasons for this decision. It also provided for a final internal appeal.

Although acknowledging that the collision occurred when a car appeared to break a red light and came into contact with the right side of the Complainant’s vehicle, it stated: “In order to get an unbiased, ‘cold’ analysis of the incident, three members of staff who have (the vehicle in question) driving competency and experience were asked to review the CCTV footage of the incident. 2 of the staff were/are involved in driver training. The footage was viewed in isolation of each other and any other data (i.e. no details of the driver, nature of the appeal, etc. were given to these staff). The overall interpretation of the three staff was that (the Complainant) should have seen the car and administered the (x or y brakes) earlier. Whilst there was an acknowledgement that there is a difference between actually driving (the vehicle) and reviewing CCTV, all three staff felt that the stopping distance was longer than what would have been expected especially considering the low (vehicle) speed and the fact that the CCTV does not capture the full extent of the human visual field. There were also queries regarding the (y brake). From the CCTV, it appears that the (y brake) wasn’t applied. Whether it was applied or not, all three felt that it should have been applied. Unfortunately, there is no tacho information on this incident so it cannot be determined conclusively if there was (a y brake) or not although there is no report in (the incident report) of (a y brake). Comparing the footage to other incidents where (a y brake) was applied at low speed, the deceleration appears to be much slower on (the Complainant’s vehicle) relative to (vehicles) that have had (a y brake) applied.” Under the heading: “Determination”, the memo stated: “Taking all information into account, it is reasonable to ascertain that a… driver should have performed better when faced with this specific incident. While better performance (i.e. applying brake earlier or (y) brake earlier) may not have avoided a collision completely, it may have reduced the speed of impact the car and therefore potentially reduced the likelihood of an injury related absence.” The Complainant’s Representative confirmed that neither he nor the Complainant were informed of or aware of this apparent fact-finding exercise nor was the issue of whether the ‘y brake’ had been applied ever put to him.

The Complainant appealed this decision and along with his Union Representative, attended an appeal hearing with the Respondent’s Managing Director on 12^th August 2016. A letter dated 6^th September 2016 from the Managing Director confirmed that his appeal was yet again unsuccessful on the basis that: “Subsequent to the appeal hearing, I reviewed all forms of evidence including CCTV & discussed in detail with our Safety Manager. From watching the CCTV it is obvious: You failed to apply the ‘y brake’ and “The car brushed the (vehicle). In light of the above and having considered the totality of the evidence, I am not satisfied beyond reasonable doubt that your application has fulfilled the required criteria to be admitted to the Occupational Sick Pay scheme.” Minutes of the appeal hearing were furnished. During the course of the hearing, the Managing Director confirms that he would not be reviewing the CCTV footage at the hearing and goes on to make reference to the three people with driving experience having a differing opinion as to whether evasive action could have been taken. In response, the Complainant stated: “I would like to sit down with these three people & watch it with them.” The Representative also pointed out that the Managing Director had not viewed the CCTV in question. The Complainant gave his account of the incident again pointing out that as the car had come from an angle, he could not have seen it in time to take evasive action. There is no record of the Managing Director putting it to the Complainant that he had not applied the ‘y brake’ and/or whether in his view it would have made any difference given that the collision was side-on. Whilst the findings at the various stages also appeared to conclude that the Complainant had not suffered a legitimate injury, this argument was not pursued. The Complainant’s Representative also complained about the delay and inconvenience caused by the manner in which the Respondent had met this claim especially considering that he is a longstanding loyal employee.

Summary of Respondent’s Case:

The Respondent provided a detailed written submission and all involved in the process set out above attended save for the Managing Director and confirmed their respective roles. The process adopted as set out above was not put in issue and essentially the Respondent stands over the fairness of same and the decision not to pay the Complainant his shortfall in wages from the OSPS. It was pointed out that on four other occasions, he had been admitted to the OSPS and in this instance had the benefit of the Regular Sick Pay Scheme. When asked why so much time, energy and expense had been put into defending such a small claim, the Respondent’s HR Manager explained that it incurs significant costs in supporting the Scheme so each claim has to be investigated very carefully and determined on its own merits to preserve its integrity and avoid a floodgate effect. At the hearing it departed from its position that the Complainant’s injuries would not have merited payment from the OSPS.

Findings and Conclusions:

It is well established that an employee has a contractual and constitutional right to fair procedures (In Re Haughey [1971] IR 217), the extent of which will depend on the particular circumstances. Having examined the process adopted by the Respondent in arriving at its decision to refuse payment from the OSPS in light of all of the oral and documentary evidence of both Parties, I do not consider that the appropriate level of fair procedures were met in this instance and in particular:

- In relation to the first refusal of 1^st June 2016, findings of fact were made without interviewing the Complainant and the decision lacks reasoning. Also on a careful reading of the OSPS terms as furnished, the ‘beyond reasonable doubt’ standard of proof only applies to satisfying the two general provisions of the Scheme, namely: (1) that a confirmed accident/incident occurred at work and (2) that the accident/incident has resulted in a legitimate injury. The reference to accidents/incidents occurring “…through no fault or negligence on the part of the employee” only appears in the introductory paragraph. Leaving aside the fact that it is not in dispute that the collision in question was caused by a car breaking a red light, the terms of the Scheme are unclear as to the appropriate standard of proof to be applied to the requirement that the accident occurred through no fault or negligence on the part of the employee concerned. I am therefore of the view that it was unfair to apply the ‘beyond reasonable doubt’ standard of proof accordingly in arriving at this refusal.

- In relation to the second refusal of 29^th July 2016, I find that the fact-finding exercise adopted was unfair in circumstances where the Complainant and/or his Representative were not informed of or made aware of the assessment of the Complainant’s driving performance by the three members of staff based on viewing the CCTV footage. As a result, he was not afforded the opportunity to offer his input and/or explanation of how the accident in question occurred which may have been relevant to the findings. When this was flagged to the Managing Director at the final hearing, he did not consider revisiting this exercise. Additionally, and as per the memo, the issue of whether the ‘y brake’ had been applied and/or the findings of the three persons in this respect were never put to the Complainant so that his response could be considered. Conversely, it was conceded on the part of the Respondent that: “Unfortunately, there is no tacho information on this incident so it cannot be determined conclusively if there was (a y brake) or not…”. The process adopted was also fundamentally unfair in that a ‘beyond reasonable doubt’ standard of proof was applied in relation to determining whether the accident had occurred through no fault or negligence on the Complainant’s part, whilst at the same time excluding him from the fact-finding process used to determine same.

- In relation to the third and final refusal of 6^th September 2016, I note that the Managing Director offered the Complainant’s Representative the opportunity of reconvening the hearing after he had viewed the CCTV and this was declined. Given that the Complainant had already been excluded from the fact-finding exercise and the Managing Director had not indicated any intention to revisit that exercise to allow for his input, I do not consider that this would have remedied the process. I am also of the view that the manner in which he came to his decision is found wanting for a different reason. At no stage during the meeting as minuted was the Complainant asked about applying the ‘y brake’, yet in refusing the Scheme, he makes an explicit finding that he “…failed to apply the (y brake).”

I am also cognisant that regular albeit primarily minor collisions with other vehicles are an occupational hazard for the Respondent’s drivers and hence the need for the OSPS in question. As the Scheme is costly to operate and may be open to abuse, the Respondent is fully entitled to investigate each claim thoroughly to maintain its integrity. Approving claims under the Scheme undoubtedly poses issues for management particularly in circumstances where the employee has not sustained any physical injuries or there is a history of claims under the Scheme. Regardless of the Respondent’s views as to the deservedness of the Complainant’s claim, I am satisfied that the process adopted to arrive at the decision to refuse him payment from the Scheme did not afford him the appropriate level of fair procedures that would seem reasonable in the circumstances.

Recommendations: (strictly pertaining only to the facts of this Dispute)

- I note that the Complainant in this matter simply sought to have the payment of the €480 shortfall in his wages discharged from the OSPS. In light of the aforesaid reasoning, I recommend that the Respondent discharges the €480 shortfall to the Complainant within 42 days of the date hereof.

- So as to avoid similar disputes in the future giving rise to a lengthy internal process and referral to the WRC, the Respondent might wish to consider whether a review of the Scheme (in accordance with the process for such collective agreements) is required to clarify the requirements for payment, the applicable standard of proof as to whether the employee was at fault or negligent in relation to any accident/incident, definition of ‘a legitimate injury’ and procedures for assessing such claims.

Dated:   17^th May 2017

Workplace Relations Commission Adjudication Officer: Aideen Collard

Key Words: Industrial Dispute – Occupational Sick Pay Scheme – Fair Procedures