Complainant

Respondent

Anonymised Parties

Driver

Transport Company

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-00007680-001

18/10/2016

The Complainant commenced employment with the Respondent Company as a Driver in June 2011. He is paid €3182.00 gross per month and works 39 hours a week. He referred a dispute to the Workplace Relations Commission on 18^th October 2016 concerning entry to the Occupational Sickness Scheme following a workplace accident.

The Complainant was involved in a road traffic accident while at work on 30^th March 2015. The Respondent has denied him access to the Occupational Injury Sickness Payment Scheme (OSP) The Complainant has exhausted the internal appeals process. As a consequence the Complainant did not receive his full entitlement under the Bonus Scheme, his first three days of absence were unpaid and the Respondent did not cover all his medical expenses. The Respondent also provided inaccurate information to the Personal Injuries Assessment Board in a personal injury claim by the Complainant and the Complainant is seeking payment by the Respondent of his entitlements under the OSP and to be reimbursed for loss of earnings of €3182.00 because of inaccurate figures provided to the PIAB.

The Complainant was absent from work for some 20 weeks. On 15^th April 2015 he was informed by the HR Manager that his application for admittance to the OSP was rejected. And this was confirmed in writing to the Complainant on 20^th April 2015. The decision was appealed and this took place on 29^th April 2015. The Complainant was sent to the Company Doctor and he provided a medical report to the Company. The appeal outcome was to uphold the previous decision to deny him access to the OSP.

The Complainant lodged an injury complaint against the driver who caused the accident and the complaint was lodged against the Motor Insurers Bureau of Ireland. The PIAB confirmed that the accident was the reason for the Complainant’s injuries and he was awarded compensation of 27,866.55 euro. However the PIAB calculations of loss of earnings were incorrect as it was based on inaccurate information provided by the Respondent.

The Respondent stated that the Occupational Injury Sickness Payment Scheme (OSP) is a Collective Agreement negotiated and agreed between the Parties. A copy was provided to the Hearing. This states: an employee must satisfy and fully cooperate with the general provisions of the Company Sick Pay Scheme. In addition to satisfying these general provisions the Company must be satisfied beyond reasonable doubt:-That a confirmed accident/incident occurred at work –That the accident/incident has resulted in a legitimate injury.

The Scheme also provides for referral for medical examination by any Company appointed medical practitioner or equivalent appointed medical examiner. The Complainant did attend for a medical examination by a named Occupational Health Specialist who determined that the Complainant did not meet the criteria for entry to the Collective Agreement for entry to the OSP. The Complainant appealed the decision on two occasions and the final appeal was heard on 4^th June 2015 and the outcome was to uphold the decision.

The Respondent also stated that the Scheme does not provide for a referral to a third party.

The Respondent was requested by the PIAB to provide a certificate of loss of earnings and this was provided by the Respondent Company. The Complainant received an assessment from the PIAB on 16^th February 2016 in relation to his claim for personal injury and the Complainant agreed to this assessment.

On the basis of the evidence and a written submission from the Complainant I find as follows –

Both Parties confirmed that the Occupational Injury Sickness Payment Scheme is a Collective Agreement entered into by the Parties. Both Parties also confirmed that the Scheme does not provide for referral to a third party. Both Parties confirmed that the Scheme does provide for referral to a medical practitioner or medical examiner and both parties confirmed that the Complainant was referred to the Company Occupational Health Specialist.

Both Parties confirmed that the Occupational Health Specialist made a medical assessment and viewed the cctv footage of the accident on 30^th March 2015 and determined that the Complainant did not satisfy “beyond reasonable doubt” the criteria for admittance to the OSP. Both Parties confirmed that the Complainant appealed the decision on two occasions, the latest on 4^th June 2015 and that his appeal was rejected on both occasions.

I note that the Complainant lodged a personal injury claim with the PIAB and that as part of this claim he underwent medical assessments on behalf of the PIAB. These differ in their medical assessment in relation to the Complainant’s injuries. However it is not my responsibility to determine in favour of one medical assessment or another and neither would I be qualified to do so.

I also note that the PIAB issued their assessment of his claim by letter dated 16^th February 2016 and the Complainant confirmed at the Hearing that he had signed his acceptance of this, and this included specified loss of earnings.

In accordance with Section 13 of the Industrial Relations Act 1969 – 2015 I do not make a Recommendation in favour of the Complainant,