Complainant

Respondent

Anonymised Parties

Security Officer

Security Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00015899-001

20/11/2017

The Worker is employed as a Security Officer since 7th April 2014. He is paid €770.80 per fortnight. He is seeking payment for counselling services following an alleged attack/injury at work.

The Worker was assigned to hospital duty. On 4th March 2017 he was on duty in the accident and emergency when a young male was observed taking a suitcase from a patient. When they approached him, he became very aggressive and made an attempt to strike a colleague before absconding. They tried to prevent him running away and held on to his arms and he dragged them along the corridor into the Nurses’ Station. The Worker’s shirt got torn and his walkie talkie was dislodged and he was pushed aside by the perpetrator. An hour later he reported that he had paid in his left side of his chest and had difficulty breathing, he also sustained injuries to his wrist. He was prescribed medication and had an X-Ray. He was discharged the next day. He has been out sick since as a result of his injuries. His GP recommended one to one psychotherapy counselling. He was aware that his Employer provides this and spoke to his Operations Manager. He provided a letter from his GP recommending this counselling and he gave it to his manager. He was referred to the company doctor and if it was recommended by him they would provide the counselling. This was recommended and he started counselling in June 2017. He attended at three sessions but no payment was made by the Employer. When he queried this, he was told that they would only pay the first session. The Employer refused to implement the provisions of Employment Regulation Order (ERO) SI 231/2017, “An employer shall ensure that appropriate physical and psychological support is available, on request, to any worker who has been subject to violence as a result of carrying out his/her duties”. He attended a fifth session at his own expense and the Counsellor recommended further sessions. The Employer finally agreed to pay for ten sessionsin total. After the expiration of the ten sessions the Counsellor recommended further sessions. The Employer did not agree to this. The Worker paid for a further three sessions himself but could not afford any more.

It is his position that the Employer’s refusal to provide the treatment is a breach of the terms and conditions of the ERO. This failure has prolonged his recovery. He received injuries while at work which has rendered him unfit for work. He was the subject of an assault and he is relying upon the statutory definition of same as set out in Section 2 of the Non-Fatal Offences Against the Person Act 1997. He injured himself and it is the responsibility of the Employer to cover the costs in compliance with SI 231/2017. He is seeking the costs of all the counselling sessions to date and any future costs recommended by the Company Doctor.

On 4th March 2017 the Worker was on duty in the A&E Department of the hospital and became involved in chasing a male who was acting suspiciously. In the course of a pursuit he hit himself at the Nurses’ Station when he ran in to it. Having recovered he continued his chase and eventually he and his colleagues restrained him until the Gardai arrived. There was no report of an attack by the assailant on the Worker who as a result of the collision experienced soft tissue injury to his chest which was resolved a number of weeks after the incident. He was paid sick pay in accordance with the Security ERO and also paid for ten counselling sessions. Subsequent to the incident the Employer received a query from his union enquiring why he had no received any “attack benefit”. Personal attach benefit is provided for under Sec 7 of the ERO. This applies to employees who have six months service and have been attacked in the course of their duty and as a result of such an attack they have suffered “an injury”. In this particular case he injured himself when he ran into the Nurses’ Station which caused soft tissue injury. This was confirmed by the company doctor. These injuries were not as a consequence of an attack but as a result of hitting himself off something whilst he was apprehending a suspect. He was told that he did not qualify for Personal Attack Benefit but he was paid sick pay until the benefit expired. Arising from this decision of the Employer he has claimed payment of attack benefit and this is the subject of a WRC Adjudication Officer investigation. This claim is in respect of payment for all counselling sessions and further ones recommended by the Company Doctor.   He is relying upon Regulation 7 “Personal Attack Benefit”. Before any entitlement arises, the employee must have been injured as a result of an attack by a third party as opposed to an injury arising from an apprehension of an individual which is part of an officer’s normal duties. To establish this benefit the security officer is injured as a result only of being attacked by someone whilst they are at work. The essential element being that the security officer himself must have been attacked and as a consequence of that attack has suffered injuries that forced him to stay out of work. The Worker’s own statements to the company and company doctor confirm that there was no attack. He was not attacked by any person He was in no different position to any other officer involved in security duties anywhere. He is not entitled to claim under the Personal Attack Benefit nor is he entitled to the benefit of Regulation 4.6.7. Despite this the Employer paid him sick pay and also paid for ten sessions of counselling. This claim is predicated by the need for the Worker to establish that he was entitled to benefits under the Personal attack clause of the ERO. He has not established that. He was not subjected to an attack while carrying out his duties. Concession of this claim would create a significant precedent for further claims. This claim is rejected.

I note that in the Adjudication Officer’s decision referred to above the Officer concluded “that while the person that the Complainant engaged with was trying to evade his and other staffs’ efforts to catch him the Complainant was not in any danger of the other person trying to injure or kill the Complainant”. He recommended that “The Complainant has not established a right to be paid for his time out”.

I note that the matter for decision in this case is whether or not the Employer should pay for the counselling sessions that have been conducted together with any future sessions recommended by the Company Doctor.

Based on the evidence presented at the hearing I concur with the decision in ADJ 9342 that there was not an attack.

I find that the Worker was dragged along and hit the Nurses’ Station and injured himself causing soft tissue injury.

I note that he was discharged from hospital the following day.

I note that the Worker did not file an attack report.

I note that the Employer paid the sick pay in accordance with the terms of the ERO.

I also note that the Employer initially only wanted to pay for one counselling session but eventually agreed to pay for ten.

I note that Regulation 7 of the ERO states, “An employer shall ensure that appropriate physical and psychological support is available, on request, to any worker who has been subject to violence as a result of carrying out his/her duties”.

I find that there was not an attack/violence perpetrated on the Worker.

Therefore, I find that Regulation 7 does not apply in this case.

I find that the Employer has applied the terms of the ERO.

I find no basis for the Employer to pay for any more sessions of counselling.

I find that this claim is not well founded.

For the above stated reasons, I recommend that this claim should fail.

Payment for counselling sessions following an alleged attack on a security officer