ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00013638

Complaint(s):

Date of Adjudication Hearing: 04/07/2018

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 [, and/or Section 13 of the Industrial Relations Acts 1969] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Summary of Claimant’s Position

• Introduction:

• The case before you is taken by SIPTU on behalf of our member. The claimant is seeking payment under the Respondent’s Injury Grant Scheme, (P6-16) based on an injury she sustained during the course of her work on 21 November 2015.

• General

• The claimant Commenced employment with the respondet on 01/06/2000.

• She worked 39 hours per week as a Health Care Assistant up until her injury in 2015, and was paid €1400 gross per fortnight.

• She enjoyed her work and interaction with the service users at the Centre in Co Mayo.

• Background to Complaint.

1. Sunday evening 21 November 2015 the claimant was with a resident JQ when she was assaulted by this Service User. She was knocked to the ground and suffered facial and back injuries.
2. The claimant initially attended work on the two days following the assault but later had to see her GP as the pain and discomfort intensified over this time.
3. The claimant was certified unfit for work and required X-Rays and an MRI scan.
4. Our member was approved for payment under the Serious Physical Assault Scheme which lasted for three months and in which time the respondent covered the cost of her medical procedures.
5. She was later approved for payment under the Temporary Rehabilitation Remuneration Scheme up to February 2017.
6. At this stage the claimant made an attempt to return to her job based on a changed role which involved lighter duties than she had previously carried out.
7. However shortly after commencing the claimant was requested to attend Manual Handling training. On her first attempt she had stiffness in her neck (as observed by the Trainer) and was not allowed to engage in this training. On a second occasion her GP had advised against engaging and on production of a letter to this effect she was again told that she could not participate.
8. On this occasion she was sent to see her HR Officer- who instructed her to leave the site and go home. She was not provided with any explanation or given any information as to her work status. She re-visited this with the HR Officer before leaving the Centre and she was then brought to a meeting with Ms SK Programme Director and again told to go home.
9. The claimant utilised accrued annual leave until this was exhausted and following this she again submitted sick certs to the employer based on her back complaint.
10. In July 2017 the claimant lodged an application for payment of the respondent’s Injury Grant under Article 49/109 of the Local Government (Superannuation) (Consolidated) Scheme1998.
11. SIPTU made numerous attempts to establish the outcome of this application culminating in an email of 19 December 2017 which advised the HR Officer of our intention to lodge a complaint to the WRC.
12. The claimant was then advised in January 2018, by Ms JS- Manager, of the decision to refuse the application. (P18-19)
13. An appeal of the decision to refuse the application, was been lodged (in line with procedures) on behalf of the claimant , to Mr FR on 30 January 2018
14. The claimant was contacted directly in January by the HR Manager seeking a meeting.
15. [This date was unsuitable to SIPTU and an alternative of 18.01.2018 was offered. By the 15th no confirmation or alternative data had been received. Following a protracted process of offering and rejecting meeting dates, the 06.02 2018 at 11:30am, was offered by management and agreed by SIPTU. The claimant and SIPTU representative attended for meeting on 06.02.2018 but Ms.JS was not on site and no information was forthcoming as to management’s intentions around the claimant’s issue. No meeting took place, as there were no relevant management personnel available.]
16. The claimant waited another two months for a response to her appeal and when none issued her complaint was lodged with the Workplace Relations Commission in March 2018.
17. Following the issuing of the date for the WRC Hearing, management put in place arrangements for an appeal hearing.
18. This was heard by Mr KL on 21 June 2018 and the claimant was represented by SIPTU.
19. The decision issued on 29 June 2018 and this upheld the original decision to reject our member’s application.
20. We are challenging that decision as we believe it to be flawed and a cosmetic exercise designed to provide the impression of observance of HSE Procedures.
21. This is evidenced by the fact that, the claimant made her application in July 2017 and despite constant and ongoing pressure from SIPTU it took 6 months to receive the initial decision and a further 5 months to have the appeal heard.
22. 11 months for a final decision in a matter as grave as an employee’s health and wellbeing is quite shocking, and is vastly out of line with the 42 days max prescribed in the respondent’s Grievance Procedure.
23.  
24. Overall Case
25. The claimant suffered an injury while in the course of her work. She has been absent from work for the most part since the days following that injury in November 2015 except for a brief attempt to return to lighter duties in February 2017, which was tried in good faith but was unsuccessful.
26. She was granted payment under the Serious Physical Assault Scheme and the TRR Scheme (Temporary Rehabilitation Remuneration.)
27. In their letter of 05 .01.2018 rejecting her application, management state that the reason for refusing her application for payment of the Injury Grant, is that the claimant does not meet the criteria under this Scheme…“your symptoms are not wholly and directly attributable to the serious physical assault which occurred in November 2015”.

• [In order to qualify for the (Injury Grant) allowance an employee must be injured -

1. In the actual discharge of his or her duty, and
2. And without his or her own default, and
3. By some injury attributable solely to the nature of his or her duty.] P11
4.  

• There is reliance on various Occupational Health Reports and a Functional Capacity Assessment.

• 10.05.2016. A report requested by the respondent from by Dr JS confirms “Therefore some of the claimant’s symptoms are direct result of the incident.”

• 06.07.2016. In response to a further HSE query from the respondent Dr JS confirmed that his view was “that on the balance of probability, her upper back pains are attributable to the alleged assault as she did not seem to have similar symptoms before”. (P36)

• 09.08.2016 Dr JS said …”I cannot state she can resume modified work”.

• 12.09.2016 Ms BHConsultant Orthopaedic Surgeon said in her report to the respondent that, “She is unfit for work in her current capacity”.

• 10.11.2016 Functional Capacity Assessment (FCA) by J DM - Formhealth was not supportive of our member and concluded ….. Unable to provide from a physical perspective a reason for her continued absence from work

• This is rejected by the claimant as inaccurate and misleading, and it is out of kilter with all other reports from those who knew the claimant best.

• 20.12.2016 Dr JSreports that in his view “a return to work during her usual job at this point will most likely be unsuccessful”.

• 06.06.2017 Dr JS saw the claimant again and reported that “She confirmed her resumption of work in a modified role at day services. She said there is no heavy manual handling duties in this role. However she reported ongoing pains in her back which she said had worsened.” (Returned in February 2017 following FCA Report).

• Application for Injury Grant was made in July 2017.

• 22.08.2017 Dr JS issued a further Report following OH review. The claimant had by then been absent from work since 08.06.2017 as “she said she was told by management that she not allowed to be in the complex as she could not complete the manual handling training due to her on-going symptoms of back pain.”

• Dr JS says in this report that……………..”I believe she will not be able to sustain/remain successfully at work in a role that involves heavy manual handling. I suggest management explores possible long term options with her.” (P44-45)

• 12.12.2017: Dr JS conducted another review. His recommendations he said “remained as per my report from 22.08.2017”. (P46)

• The letter from Ms JS of 05.01.2018 selects sections of the above reports as basis for refusal but ignores the sections we have outlined above.

• We contend that there is sufficient evidence contained in these reports to sustain a successful application for Injury Grant.

• In particular we would reference Dr JS Report dated 06.07.2016 which clearly states that the upper back pains being experienced by the claimant are attributable to the assault.

• This we say fulfils the criteria for payment and this should have been sufficient evidence to justify approval for the Injury Grant.

• It was after sufficient to gain her approval for the Serious Physical Assault Scheme, which relies on the exact same criteria for payment.

• She has attempted a return to work but was sent home due to her inability to complete Manual Handling Training for the role she was placed in.

• However it seems clear that if she could not complete this training she could not carry out the role and management must have accepted this as they sent her off site.

• The assault happened, this is not disputed. Dr JS has stated in July 2016, that in his opinion the claimant’s low back problems have worsened since the assault and she did not appear to have the neck/shoulder pain until after the assault and he concludes that at least some of her symptoms are a direct result of the assault.

• The claimant worked as normal prior to this incident and had no back related absence from work until after this serious assault.

• Occupational Health were asked to confirm if the back problem is related to the assault and Dr JS has in our opinion confirmed this to be the case. (p34/p35/p36)

• Therefore she satisfies the criteria for payment as it stands. 

Summary of Respondent’s Position

1. Introduction
2.  

1. 1. 1. The Complainant commenced employment in the role of Domestic Assistant with HSE West   on 09th October 2000 and this role changed to Care Assistant on 1st January 2002 following a National Agreement on the grading of support staff working in Intellectual Disability Services. The role is based in Aras Attracta, Swinford, Co. Mayo. Aras Attracta is a residential and day intellectual disability service.
      2.  
      3. The Complainant’s guaranteed paid weekly hours are 39 which represent 1 WTE. The complainant’s annual   basic salary is €38,057.00, €1,458.72 per fortnight (gross)
      4.  

• The Complaint that has been submitted refers to the decision by management that the complainant is not eligible to payment under the HSE Injury at Work Scheme identified in the HSE Long Term Absence Benefit Scheme Guidelines (Appendix 1)

2. Background

2.1          On 22nd November 2015, the complainant was involved in an incident whereby a resident of Aras Attracta made contact with the complainants left eye, causing a bruise. An incident report was completed (Appendix 2)

2.2          The complainant was absent from work due to ‘eye injury and stress’ following the incident commencing on 24th November 2015. The complainant was referred to Occupational Health who met with the complainant on 11th January 2016. Occupation Health reported subjective symptoms and advised the complainant to discuss further treatment with the GP and recommended consideration to psychotherapy. (Appendix 3) The report was queried by the complainant to which Occupational Health made a response dated 16th February 2016 (appendix 4)

2.3          Occupational Health.

During the absence of the complainant that followed there were Occupational Health Appointments to support and which took place on:

2.4       Engagement

Management have engaged with the complainant regularly to offer support during absence and

to facilitate a rehabilitative return to work. Summary below of key engagement:

2.7       Payment

The Long Term Absence Benefit Guidelines, 2012 (Appendix 1) sets out the provisions pertaining to the long term absence benefit schemes that apply in the Health Service Executive. These schemes are the injury grant scheme, the serious physical assault scheme and pension rate of pay (now temporary rehabilitation remuneration. These guidelines also set out the procedures that should be adhered to when managing the implementation of the schemes. The purpose of these procedures is to ensure consistent management of the long term absence benefit schemes, together with providing clarity on the roles and responsibilities of all parties.

2.7.1     An application for payment under the HSE Serious Physical Assault Scheme Section 5.2 was made in February 2016. The Serious Physical Assault Scheme applies to employees who are seriously assaulted in the course of their duties and provides full pay for support staff grades for a period of up to 3 months (Appendix 1). The payment was sanctioned by the Assistant National Director of HR for the period 24 November 2015 to 03rd March 2016. (Appendix 33)

2.7.2     The complainant claimed Temporary Rehabilitative Remuneration (TRR) as identified in the Long Term Absence Benefit Scheme Section 3.3 Pension rate of pay which provides for payment at the pension rate of pay where an employee has exhausted his/her sick pay entitlement but is still unfit to return to work (Appendix 1)

                The complainant was paid TRR from 16th June 2016 until the return to work on 13th February 2017 (Appendix 34)

2.8         Training    

                Prior to the incident the complainants training was recorded (Appendix 35)

The complainant was scheduled for, and attended manual handling training at Aras Attracta on 2 occasions, 23th February 2017 and 08th June 2017. On both occasions the complainant indicated to the trainer that she was unable to carry out the training due to physical constraints.

             On the second occasion the complainant spoke with management who advised that as a duty of care for the complainant and residents of Aras Attracta, as per HIQA requirements and in consideration of the workplace rehabilitation form completed on 28th April it would be unsuitable for the complainant to resume duties at Aras Attracta without completing current manual handling training.

2.9          Sickness Absence

The complainant recommenced sickness absence on 29.06.2017 and this continues to date.

3. 3. Conclusion

                The complainant was subject to a physical assault on 22nd December 2015 which resulted in sickness absence from that date until February 2017.

                The complainant has been supported by management through:

• Compliance with Incident Reporting

• Regular Occupational Health Services and Employee Assistance
• Regular Review Meetings
• Compliance with Long Term Absence Benefit Scheme Guidelines
• Payment for 3 months under the Serious Physical Assault Payment Scheme
• Training
• Rehabilitative Return to WorkThe claim for Injury Grant has been submitted by the complainant on 2 occasions and has been considered by management in conjunction with advice and information the Occupational Health Service and an Independent Functional Capacity Assessment.Occupational Health report on several occasions throughout the term of the absence that the symptoms described by the complainant are not in correlation with the medical evidence and that there could be a return to work. The Functional Capacity Assessment finds that they cannot find from a physical perspective a reason not to return to work. The Long Term Absence Benefit Scheme is payable only on Physical Injury.Management found that the complainant was ineligible for Injury Grant according to criteria as identified by section 5.1 of the Long Term Absence Benefit Scheme Guidelines and in accordance with Article 49 and 109 of the Local Government (Superannuation)(Consolidation) Scheme 1998 and section 12.1 of the HSE Superannuation Scheme 2010, (c) by some injury attributable solely to the nature of his or her duty.The management decision has been appealed by the complainant to the Assistant National Director of HR and a grievance process was carried out. The grievance has not upheld the appeal of the complainant but found the management decision reasonable. The outcome of the appeal / grievance has been communicated to the complainant.Management have supported a rehabilitative return to work in 2017 which was unsuccessful.Management are willing to re-engage with the complainant to support rehabilitation back to Aras Attracta in her substantive post as Care Assistant.
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Recommendation

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

Dated:   30th November 2018

Workplace Relations Commission Adjudication Officer: Emer O'Shea