Complainant

Respondent

Anonymised Parties

Driver

Transport Company

Representatives

Bernadette Thornton SIPTU

Jan Hayden IBEC

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-00030208-001

13/08/2019

The issue in contention concerns the classification of 19 days absence as normal sick leave while the complainant states they should have been classified as absence resulting from a Road Traffic Accident while driving for his employer and entitlement to receive benefit under the employer’s occupational injury benefit scheme. The adverse effect of that decision is the loss of earnings relating to 4 rest days, his subsequent absence added to his 19 days absence arising from the accident triggering the employers formal monitoring of his attendance and being placed on an improvement programme and the loss of an attendance bonus.

The claimant was involved in a road traffic accident while driving for his employer on the 11th February 2019. He returned to the bus depot following the incident and then went home. He contacted his employer the next day to say he was sick and didn’t know when he would return to work. He was then referred to a Doctor on the company’s panel, who certified the claimant for a period of 19 days. A company accident report exists. The claimant went to the company nominated doctor. That doctor certified the complainant as unfit for work because of the accident. The complainant applied to receive benefit under the occupational injury scheme. He was refused, and classified as being sick under the normal welfare scheme

While both sick pay schemes operate a sliding scale; however, if he had been put on the occupational injury scheme he would continue to maintain a right to a 100% benefit for longer on the normal sick pay scheme, he would have been paid for his 4 rest days, he would be considered for an attendance bonus and his occupational injury absence wouldn’t have triggered attendance monitoring by his employer based on the subsequent absence that he has had.

Any delay in processing the claim was not as result of inaction on his part. The claimant states that he was not the cause of any delay; however, he had to request information through data protection protocols to gain access to his file.

The assessment relating to classifying eligibility for occupational injury benefit, in contrast to the normal sick pay scheme, must take account of the circumstances and facts relating to each claim. The matter was examined fairly. CCTV footage show a low impact incident. The claimant’s first medical did not warrant referral to the Chief Medical Officer. The claim took 3 months to materialise while the practice is for an appeal to take place within 5 days. The complainant is at no loss. His claim is about future potential loss. There is no automatic right of payment to rest days relating to a loss of earnings.

There is no dispute relating to the fact that an incident did take place and a Road Traffic Accident took place while the claimant was working. The claimant went to the company nominated doctor and was certified sick. It would appear on these facts that he was certified sick based on the fact that a Road Traffic Accident occurred. While the absence appears to have been compounded by the fact that the complainant was also involved in a previous accident; which as result of the most recent road traffic incident; gave rise to symptoms that required medication and absence from work. The company nominated doctor approved this absence. The company contends that the overall facts of the case determines the classification. The claimant has been at no loss. Any potential loss of earnings claim is totally discretionary and is not given as of right.

On the facts the claimant was absent based on a work-related traffic accident and was certified subsequently for 19 days absence arising from that incident.

While the depot manager decided, based on all the facts, such as CCTV; an interview and medical evidence and all the circumstances of the case that occupational injury benefit should not be given to the complainant.

A key grievance of the complainant is the misclassification of the absence with consequential adverse effects, such as the reduced benefit on the sliding scale, attendance monitoring and loss of earnings.

Purely on the facts of this case without setting any precedent relating to the right of the company to determine eligibility to the occupational injury scheme, I would recommend that the 19 days certified absence be set aside and excluded from any calculation for reduced benefit under the:

·        The normal welfare sick pay scheme

·        The attendance bonus

·        The triggering of attendance monitoring when combined with other absence.

However, any subsequent absence would be treated in the normal way regarding the various company’s schemes and attendance monitoring.

The claimant’s loss of 4 rest days is a discretionary benefit and as this is a recommendation without prejudice to the company’s discretion to determine whether to pay for loss of opportunity to earn, on balance the rest days should not be paid.

I make this recommendation on the merits of this case only.

I recommend that based on the unique facts of this case, without establishing any precedent, that the claimant should not be placed on the attendance improvement programme and his benefits under the standard welfare scheme should not be negatively impacted under the sliding scale rules, having regard to this 19 period day of absence certified by the company doctor related to the work-related accident.