ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00009708
Parties:
| Complainant | Respondent |
Parties | A Driver | A public transport company |
Complaint(s):
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-00012739-001 | 24/07/2017 |
Date of Adjudication Hearing: 13/10/2017
Workplace Relations Commission Adjudication Officer: Jim Dolan
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 13 of the Industrial Relations Acts 1969 following the referral of the dispute to me by the Director General, I inquired into the aforesaid dispute received by the Workplace Relations Commission on 24th July 2017 and gave the parties an opportunity to be heard and present any relevant evidence. I note that there was consent from the Respondent to the investigation of the dispute by an Adjudication Officer. I proceeded to a hearing of the matter on 13th October 2017. The Complainant was represented by an official from his trade union and the Respondent was represented by their legal representative. All written and oral evidence presented to the Workplace Relations Commission have been taken into consideration when coming to this recommendation.
Background:
The complainant was involved in an incident whilst at work on 13th February 2017 that resulted in a two-day absence from work. The complainant fully expected to be paid for the two-day absence via the respondent company’s Occupational Sick Pay Scheme, when such payment was refused the complainant appealed this decision through the correct internal procedures. Following a number of internal appeal hearings, the dispute was referred to the Workplace Relations Commission under s.13 of the Industrial Relations Act, 1969. It is noted that the respondent company and its employees have a comprehensive Company / Union Agreement and that this collective agreement is registered by the Labour Court. |
Summary of Complainant’s Case:
The complainant was on duty on 13th February when an incident occurs. Thanks to the complainant’s quick reflexes and experience he was instrumental in avoiding a potentially fatal accident. The complainant was shocked and terrified. He immediately contacted the control room to report the incident and informed the control room personnel that he would continue working for a short period and then decide if he could continue working, he then informed the control room personnel that he was unable to complete his shift as he was visibly shaken and upset. The complainant returned to work on 17th February, on 20th February he received written notification that he would not be paid for the two-day absence under the respondent’s Occupational Injury Sick Pay Scheme. The complainant appealed the decision to no avail. As per the respondent’s occupational injury sickness payment scheme, in order to get access to the scheme, in addition to satisfying general provisions of the scheme employees must notify an appropriate member of management about the incident and must demonstrate that they have sustained a legitimate injury as a result of a confirmed workplace accident / incident within 24 hours. Finally, the scheme is only applicable to employees who sustained a legitimate occupational injury as a result of an accident/incident at work through no fault or negligence on the part of the employee. The general conditions attaching hold that the company must be satisfied beyond all reasonable doubt that A) That a confirmed accident / incident occurred at work B) That the accident /incident has resulted in a legitimate injury When the complainant was informed that he would not receive payment for the two days of absence he invoked the agreed appeals procedure, this consisted of the two appeal stages he received written notification upholding the decision not to pay. Decision Maker – “having considered the above and taking into account the totality of the evidence including the viewing of CCTV, I am writing to you to outline that your application for the Occupational Injury Scheme has been unsuccessful”. Appeal 1 – “Having carefully listened to submissions made by both your union representative and you and considered all the available evidence including CCTV footage of the incident, I am not satisfied that the incident was of sufficient seriousness to warrant 2 days of occupational illness and therefore uphold the decision of SDM to decline your application to the Occupational Sick Pay Scheme”. Appeal 2 – “Having carefully considered submissions made by you and your representative at the appeal hearing it is my decision to uphold the original decision that was made in relation to this application. I have reached this decision based on a review of the applicable evidence including review of CCTV footage of the incident”. The representative of the complainant made the following points in relation to the appeals: Appeal 1 – In the rules governing the Occupational Sick Pay Scheme there are no such criteria as ‘sufficient or insufficient seriousness of an accident/incident’ Mr E is not a qualified medical practitioner to make such observation, and his rationale is merely a subjective opinion based on his perception of what constitutes a sufficiently serious accident which could lead to an injury. Appeal 2 – There was no further rationale on how she came to that conclusion which is the primary duty of an Appeals Officer. Complainants Case:
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Summary of Respondent’s Case:
The company decided to exercise its right not to admit an employee to the Occupational Sick Pay Scheme following an incident on 13th February 2017. The Occupational Sick Pay Scheme is a separate scheme that applies in specific circumstances and is distinguished from the normal sick pay scheme. Both schemes are outlined in the Company / Union Agreement. To gain entry to the Occupational Sick Pay Scheme the company must be satisfied beyond reasonable doubt –
Each case is considered on its merits and any decisions can be appealed in line with agreed procedures.
In relation to the complainant the issue was decided upon and was the subject of two appeal hearings that both upheld the original decision.
Company position.
The vast majority of cases where drivers request entry to the Occupational Sick Pay Scheme are granted either immediately or upon review/appeal. It has been the company experience over years that once an incident is reviewed the accumulated experience of the parties will quickly arrive at a consensus as to the merits of the application.
The incident in question was deemed to be a very minor low speed incident that in the opinion of a number of decision makers did not lend itself for the driver to be absent for two days.
If such an incident merits entry to the Occupational Sick Pay Scheme, then it will open up the prospect of every incident however minor being capable of a similar designation. This would impose intolerable costs on the company.
It is imperative that the company and the Union continue to support cases where drivers meet the criteria for entry to the scheme. The company remains fully committed to this principle but it must be applied sensibly and reasonably by taking each case on its merits. If this is diluted in any way, then the integrity of the scheme will be lost and the continued operation of the arrangement in its current form will inevitably be put at risk.
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Findings and Conclusions:
The Company and the Union have what appears to be a comprehensive collective agreement. The Collective Agreement is registered through Section 27 (1) of the Industrial Relations Act 1946. One way for a collective agreement to be given legal effect is for the parties to apply to the Labour Court, pursuant to the Industrial Relations Act 1946, to have the agreement registered. This being the case between the Respondent company and the Complainants Trade Union I must view the agreement as a legally binding contract between the parties. The respondent company has the right to satisfy themselves beyond all reasonable doubt in matters pertaining to applications to the Occupational Injury Sick Pay Scheme – that is, I feel, exactly what they have done in this instant case. |
Decision:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
For the reasons outlined above I recommend that the complaint is not well found and therefore fails. |
Dated: 20/11/17
Workplace Relations Commission Adjudication Officer: Jim Dolan