ADJ-00017494

Complainant

Respondent

Anonymised Parties

Social Care Staff Worker.

Disability Support Services Organisation.

Representatives

Lisa Connell Fórsa Trade Union

Sheila Treacy 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-00022625-001

15/10/2018

The Complainant is employed as a social care staff worker by the Respondent who provides supports to persons with an intellectual disability. The Complainant suffered an assault at work by one of the service users. He was out on long-term disability, receiving the terms of the Respondent’s sick pay scheme. This claim is about his access to a scheme for health workers who are absent from work as a result of a serious physical assault.

The Complainant says that he sustained a serious injury at work when a female service user, while being weighed by the Complainant, placed her arm around the Complainant’s neck and followed through with her full body weight while leaning into his neck.

There was no immediate evidence of injury but by the following day the Complainant felt serious pain. He completed the required incident report (on the 14th April 2018) and went to the Accident and Emergency department of Blanchardstown Hospital. The Complainant briefly returned to work on the 19th April 2018 before going on long-term sick leave. He returned to work at the end of September 2018 and was assigned to work, at his request, at a different residential home, by the Respondent.

While receiving the sick pay benefit he does not receive allowances, because they were not covered by the sick pay scheme. The sick pay scheme was also time bound, giving cover for three months full pay and three months half pay.

The Complainant exhausted his sick pay cover on the 10th September 2018 and returned to work at the end of September. In the event of further illness or effects of the injury he says that he has no further cover currently

He lodged his claim for benefit under the Serious Physical Assault Scheme. This he says would give him ongoing absence cover and would also include payment of his allowances. The claim was rejected by the Respondent.

The Respondent rejected this claim on the basis of the definition, within the scheme claimed, of what constitutes serious physical assault and says that the Complainant is not covered on the basis of the current definition of “serious physical assault”.

They say that this issue is about to come before the Labour Court Conciliation Service and that they cannot make any concession on this before a Labour Court decision.

I find it difficult to accept that the issue before me today is not one that should be covered by the claim made.

I do accept the issue raised by the Respondent in relation to the pending case before the Labour Court.

I recommend that the Complainant be covered by the terms of the Respondent’s sick pay scheme, on a “red-circled” basis pending the outcome of the Labour Court decision.

I also recommend that if the decision of the Labour Court is favourable to the Complainant’s case that the outcome is applied retroactively to his complaint, for the period between the 14th April 2018 and September 10th 2018.