ADJ-00011200

Complainant

Respondent

Anonymised Parties

An Ambulance Paramedic

Health Service Provider

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00014903-001

10/10/2017

Dispute seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00014903-002

10/10/2017

The complainant has been employed as an ambulance paramedic since 27th October 2008.   Due to an alleged assault at work he was placed on the respondent’s Injury Grant Scheme. He was suspended from the scheme from 1st May 2017 as a result of his alleged failure to comply with provisions of the scheme. His claim is for payment of monies owed since he was suspended from the scheme and for his reinstatement onto the scheme

The complainant has been deemed unfit for work following an assault at work in 2014. He has been on the Respondent’s Injury Grant Scheme as part of the Respondent’s Long Terms Absence Benefit Scheme Guidelines (CERS 2011/12) and has regularly attended occupational health reviews. 

On 13th March 2017 while attending such a review, he provided the Occupational Health Reviewer Dr X a copy of the report from his consultant as he had always done. He also attended a meeting with his manager Mr Y on 19th April 2017 as requested and as he had previously done so. 

On 3rd May 2017 he was requested to attend another Occupational Health review which he did. He was requested to sign 3 additional medical consent forms which he did but upon advice from his solicitor and also the Freedom of Information Office whom he contacted, he withdrew this consent as his preference was that medical reports be exchanged through the normal practice that had existed previously. He had not been advised in advance of any changes in the manner in which medical reports were being sought. 

On 1st June 2017, he received a phone call from his bank alerting him that his mortgage was now in arrears and on investigation, he found that he had not been paid. He contacted Ms A, Senior Executive Officer, who advised him that payment had been suspended and to contact his line manager Ms B. Contact was made with Ms B who advised him that she did not know the reason for the suspension and that the information was above her pay grade. 

On 6th June 2018, a registered letter arrived (undated) detailing payment was suspended effective 1st May 2017 as the complainant had “withdrawn (his) consent to the Occupational Health Department to obtain medical information”. It also advised that “continued payment of your Injury Grant is conditional on your co-operation with the (Respondent’s) HR Policies and procedures” and reference was made to “Section 4 – Roles and Responsibilities – Responsibilities of Employees”. 

The complainant emailed Ms A again which was replied to on 9th June 2017. This letter outlined that appeals can be made under the Internal Disputes Resolution Procedure of the Pensions Ombudsman and that the complainant should contact Ms C, of the Internal Disputes Resolution Reviewer. 

The complainant emailed Ms C on 14th June and received an out of office email from her.   On 16th June Ms A advised him that he should refer to section 4.1 of the long-term absence policy as this was the section he was deemed to have been non-complaint with.   The complainant could find nothing in this section that suggested his non-compliance and emailed Ms C again on 18th June who eventually responded on 17th November 2017 detailing that he no longer met the criteria required, albeit no specific details were provided indicating in what way the complainant was non-compliant with the scheme. He was advised that he could appeal same to the Pensions Ombudsman. 

The complainant is seeking that wages owing to him be paid.

The respondent confirmed that the complainant was alleged to have been assaulted at work on 8th May 2014 and received payment under the Respondent’s Serious Physical Assault Scheme from 8th May 2014 – 3th July 2014 and was then paid in accordance with the terms of the Sick Pay scheme from 31st July 2014 – 12th November 2014. The Respondent’s Injury GrantScheme was paid to the complainant from 13th November 2014 to 30th April 2017 when it was suspended owing to the complainant’s non-compliance. 

On 11th May 2017, occupational health advised that the complainant had withdrawn his consent to obtain medical information and that occupational health were unable to offer advice on the complainant. 

A decision was then taken to suspend payment of the Injury Grant which the complainant was advised of in a letter dated 31st May 2017 effective 1st May 2017.   The respondent detailed they were unable to explain why the complainant's letter had no date on it (whereas their copy had) or why he had not received this letter in advance of the complainant’s suspension. 

Further clarification was issued on 9th June 2017 and the respondent advised details of the appeals process with an internal disputes resolution reviewer issuing her determination on 17th November 2017 and that the complainant was advised of his right to appeal the findings to the office of the Pensions Ombudsman but do not believe that the complainant has done so. 

Section 1(1) of the Act defines wages as meaning “any sums payable to the employee by the employer in connection with his employment, including—

( a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise,

Section 5(1) of the Act provides:

“(1) An employer shall not make a deduction from the wages of an employee   (or receive any payment from an employee) unless—  (a) the deduction (or payment) is required or authorised to be made by virtue   of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or   authorised to be made by virtue of a term of the employee’s contract of   employment included in the contract before, and in force at the time of, the   deduction or payment, or

(c) in the case of a deduction, the employee has   given his prior consent in writing to it.”

Section 5(6) details

( a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

( b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.  

It was accepted by both parties that the respondent may withdraw payment of the injury grant if an employee is in breach of the Guidelines (my emphasis). The issue in dispute is that the respondent details the complainant is in breach of the scheme which the complainant denies. 

The complainant’s first letter received on 8th June 2017 details that the complainant withdrew “consent to the Occupational Health Department to obtain medical information from (his) treating consultants”. It is also referenced that the complainant’s attention should be drawn to Section 4 – Roles and Responsibilities- Responsibilities of Employees of the Respondent’s Long Term Absence Benefit Scheme Guidelines. 

However, in a letter regarding an appeal, dated November 17th 2017, reference is made to payment being made subject to “your continued compliance e.g. timely submission of medical certificates, attendance at meetings with your line manager and Occupational Health Department, as requested” 

I have examined in detail Section 4 of the Injury Grant Scheme as part of the Long-Term Absence Benefit Schemes Guidelines (Ref CERS 2011/13) which sets out, in lengthy detail, the responsibilities of employees as follows: 

To minimise absences arising from accidents, assaults or ill-health by complying with Health and Safety requirements and taking reasonable care of their own safety and that of others;

To comply with referrals for medical assessment to the Occupational Health Department and/or to a medical practitioner(s)n nominated by the HSE;

To co-operate fully with reasonable rehabilitative measures to facilitate a return to work as quickly as possible;

To notify the line manager/appropriate manager of any relevant changes in medical circumstances i.e. if the employee will not be fit to return to work;

To include in any action for damages, arising from an accident involving a third party; a claim in respect of the gross amount incurred by the HSE in the payment of sick pay;

To comply with the requirements set out by the Department of Social Protection in relation to claiming illness benefit/injury benefit;

To claim expenses incurred in respect of hospital / medical charges under medical insurances schemes in the first instance, where appropriate

To familiarise themselves with an comply with the provisions of the Long Terms Absence Benefit Schemes (the injury Grant scheme, the Serious Physical Assault Scheme and the Pension Rate of Pay Scheme)  

I find it extraordinary that at the hearing the respondent was unable to direct me to what specifically, under Section 4, that the complainant was alleged to be in breach of. It is also surprising that the respondent was unable to explain at the hearing why they failed to inform the complainant in advance that they were suspending him from the scheme, which is a requirement of the Scheme (detailed under Section 5.1 page 11). 

In Sullivan v Department of Education [1998] 9 ELR 217, it was determined that “if an employee does not receive what is properly payable to him or her from the outset then this can amount to a deduction within the meaning of the 1991 Act”. 

As no was evidence presented that the complainant was in breach of the scheme, I find that the claim succeeds. The instant claim was submitted to the Director General of the Workplace Relations Commission on 10th October 2017 and therefore, only contraventions of the Act which may have occurred in the six-months preceding the referral, i.e. the period from 11th April 2017 to 10th October 2017 are cognisable for the purpose of obtaining redress. 

I order the respondent to pay to the complainant the appropriate wages under the scheme relating to the cognisable period from 11th April 2017 – 10th October 2017 (approximately €902.50 net fortnightly). 

The worker has been deemed unfit for work following an assault at work in 2014. He has been on the Employer’s Injury Grant Scheme as part of the Employer’s Long Terms Absence Benefit Scheme Guidelines (CERS 2011/12) and has regularly attended occupational health reviews. 

On 13th March 2017 while attending such a review, he provided the Occupational Health Reviewer Dr X a copy of the report from his consultant as he had always done. He also attended a meeting with his manager Mr Y on 19th April 2017 as requested and as he had previously done so. 

On 3rd May 2017 he was requested to attend another Occupational Health review which he did. He was requested to sign 3 additional medical consent forms which he did but upon advice from his solicitor and the Freedom of Information Office whom he contacted, he withdrew this consent as his preference was that medical reports be exchanged through the normal practice that had existed previously.   He had not been advised in advance of any changes in the manner in which medical reports were being sought. 

On 1st June 2017, he received a phone call from his bank alerting him that his mortgage was now in arrears and on investigation, he found that he had not been paid. He contacted Ms A, Senior Executive Officer, who advised him that payment had been suspended and to contact his line manager Ms B. Contact was made with Ms B who advised him that she did not know the reason for the suspension and that the information was above her pay grade. 

On 6th June 2018, a registered letter arrived (undated) detailing payment was suspended effective 1st May 2017 as the worker had “withdrawn (his) consent to the Occupational Health Department to obtain medical information”. It also advised that “continued payment of your Injury Grant is conditional on your co-operation with the (Employer’s) HR Policies and procedures” and reference was made to “Section 4 – Roles and Responsibilities – Responsibilities of Employees”. 

The worker emailed Ms A again which was replied to on 9th June 2017. This letter outlined that appeals can be made under the Internal Disputes Resolution Procedure of the Pensions Ombudsman and that the worker should contact Ms C, of the Internal Disputes Resolution Reviewer. 

The worker emailed Ms C on 14th June and received an out of office email from her.   On 16th June Ms A advised him that he should refer to section 4.1 of the long-term absence policy as this was the section he was deemed to have been non-complaint with.   The worker could find nothing in this section that suggested his non-compliance and emailed Ms C again on 18th June who eventually responded on 17th November 2017 detailing that he no longer met the criteria required, albeit no specific details were provided indicating in what way the worker was non-compliant with the scheme. He was advised that he could appeal same to the Pensions Ombudsman. 

The worker has made all efforts to resolve this at local level to no avail. The worker is looking to be restored to the Injury Grant Scheme and that arrears from 1 May be paid to him.

The employer confirmed that the worker was alleged to have been assaulted at work on 8th May 2014 and received payment under the Employer’s Serious Physical Assault Scheme from 8th May 2014 – 3th July 2014 and was then paid in accordance with the terms of the Sick Pay scheme from 31st July 2014 – 12th November 2014. The Employer’s Injury GrantScheme was paid to the worker from 13th November 2014 to 30th April 2017 when it was suspended owing to the worker’s non-compliance. 

On 11th May 2017, occupational health advised that the worker had withdrawn his consent to obtain medical information and that occupational health were unable to offer advice on the worker. 

A decision was then taken to suspend payment of the Injury Grant which the worker was advised of in a letter dated 31st May 2017 effective 1st May 2017.   The employer detailed they were unable to explain why the worker's letter had no date on it (whereas their copy had) or why he had not received this letter in advance of the worker’s suspension. 

Further clarification was issued on 9th June 2017 and the employer advised details of the appeals process with an internal disputes resolution reviewer issuing her determination on 17th November 2017 and that the worker was advised of his right to appeal the findings to the office of the Pensions Ombudsman but do not believe that the worker has done so.

I note that it was accepted by both parties that the employer reserves the right to suspend employees from the scheme where it is deemed that they are in breach of the scheme. 

As I have found in the previous claim that there was no evidence presented that the worker was in breach of the scheme, and I also find that efforts were made by the worker to resolve this at local level, I make the following recommendations that: 

the worker be reinstated on the scheme with immediate effect with arrears from 1st May 2017 to be paid to him to date. 

owing to the unique circumstance of this dispute, that compensation of €300 be paid to the employee for the failure of the employer to give advance notice that he was been suspended from the scheme. 

in future, the employer follow their own guidelines of the scheme including where it details that where an employee “no longer meets the criteria of the scheme the employee will be informed by HR in advance”. 

This recommendation does not prevent the employer from withdrawing payment where any worker is deemed to be in breach of the scheme.

CA-00014903-001

I find that the claim succeeds and I order the respondent to pay to the complainant the appropriate wages under the scheme relating to the cognisable period from 11th April 2017 – 10th October 2017 (approximately €902.50 net fortnightly). 

CA-00014903-002

I make the following recommendations that:

the worker be reinstated on the scheme with immediate effect with arrears from 1st May 2017 to be paid to him to date. 

owing to the unique circumstance of this dispute, that compensation of €300 be paid to the employee for the failure of the employer to give advance notice that he was been suspended from the scheme. 

in future, the employer follow their own guidelines of the scheme including where it details that where an employee “no longer meets the criteria of the scheme the employee will be informed by HR in advance”.

This recommendation does not prevent the employer from withdrawing payment where any worker is deemed to be in breach of the scheme.

Payment of wages, industrial relations act, injury grant scheme