Complainant

Respondent

Anonymised Parties

An Employee

A Health Service Provider

Representatives

Paul Hardy SIPTU

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-00017415-001

13/02/2018

The Complainant is employed as a Paramedic by the Respondent in its Ambulance Service.

The complaint relates to the application of the Injury Grant, under Article 49/109 of the Local Government (Superannuation) (Consolidation) Scheme 1998, in respect of an alleged injury sustained while the Complainant was performing his official duties.

Background:

Evidence submitted on behalf of the Complainant, by his Trade Union representative, indicates that the Complainant was injured at work on 22 July 2016, while washing an ambulance. It was stated that the injury was first reported, albeit informally, on 24 August 2016. It was stated that the Complainant was diagnosed with a rotator cuff injury by the Respondent’s occupational physician on 15 September 2016. It was further submitted that an incident form was submitted on that date and the Complainant was on sick leave from 15 September 2016 until 3 February 2017.

According to the Complainant’s evidence, he submitted a grievance to the Respondent on 12 January 2017. On 24 March 2017, the Complainant’s union wrote to the Respondent complaining of the non-payment of the Injury Grant and the Temporary Rehabilitation Remuneration payment (TRR). This correspondence also sought either a resolution of the matter or the convening of a grievance hearing. According to the Complainant’s submission, the TRR matter was belatedly resolved and does not form part of this complaint.

It was stated, on behalf of the Complainant, that a Stage 2 Grievance Hearing was eventually held on 20 April 2017 and was conducted by the Respondent’s Operations Performance Manager (OPM). It was further submitted that, by letter of 25 May 2017, the OPM declined to uphold the Complainant’s grievance on the grounds that he had not complied with “standard requirements” for the application.

The Complainant’s evidence shows that, by letter of 31 May 2017, he appealed the OPM’s decision to the Corporate Employee Relations Manager (CERM). It was contended, on behalf of the Complainant, that the OPM’s decision ignored “the undisputed evidence of the Complainant that the required forms, including HR112 (Injury at Work Grant) and HR114 (TRR) had already been submitted”. The Complainant stated that the Stage 3 Grievance Hearing was eventually held on 31 August 2017. It was further stated that, by way of letter dated 6 September 2017, the CERM disallowed the appeal, finding that “it has been clarified/confirmed by ambulance management that the required documentation has not been received from the Complainant”.

The Complainant stated that, in response to this decision, he, by way of a letter dated 6 September 2017, sought details of the clarification or confirmation which the CERM relied upon when reaching his conclusion. In response, the CERM forwarded various emails from a number of the Respondent’s managers including one from the Lead EMT, dated 15 December 2016, which confirmed that the Complainant delivered an HR112 form on that date and another from the Acting Operations Resource Manager, dated 25 January 2017 suggesting that the Complainant resubmit the form for the Injury Grant.

The Complainant stated, in evidence, that he resubmitted the relevant Injury Grant form on 12 September 2017. The Complainant further submitted that, by way of letter dated 31 October 2017, the then Acting Operations Performance Manager refused the application for the Injury Grant on the ground that “management are unable to confirm that your alleged injury is directly attributable to the incident you referred to”. It was submitted, on behalf of the Complainant, that this correspondence also made reference to the application having also been referred for consideration to Senior Management and to the Assistant National Director for HR.

According to the Complainant’s evidence, by way of letter dated 6 November 2017, he appealed the decision, to refuse his application for the Injury Grant, to the HR Manager, who, in turn, advised that she would revert to the Complainant on her return from leave on 5 December 2017. The Complainant pointed out that reminder letters were sent to the HR Manager on 20 December 2017 and 30 January 2018. It was further submitted that, as no appeal meeting was convened and no outcome was forthcoming, the matter was referred to the Workplace Relations Commission on 13 February 2018.

The Complainant’s Main Arguments:

According to the Complainant’s submission, the Respondent defines the Injury Grant scheme as – “an allowance that is paid to employees injured in the discharge of their duties, without their own default and by some injury attributable solely to the nature of their duties.”. The Complainant’s Trade Union representative submitted that the Complainant accepted this definition without equivocation.

It is further submitted, on behalf of the Complainant that, the Respondent’s Long-Term Absence Benefits Schemes Guidelines require an investigation of “any incidents, accidents and near misses that occur in the workplace”. It is submitted on behalf of the Complainant that he has no evidence to suggest that any such investigation has been carried out. Accordingly, it is submitted that, in these circumstances, it is not possible for the Acting Operations Performance Manager (AOPM) to find that the Complainant’s alleged injury was not attributable solely to the nature of his duties and indeed he did not, but merely found that “management are unable to confirm that.”

It was further submitted that the AOPM did not find or even suggest that the alleged injury was caused by the Complainant’s “own default”. The Complainant’s representative made particular reference to the fact that this is the only part of the criteria which refers to fault and further submitted that the Injury Grant Scheme does not require fault on the part of the Respondent be established.

It was further submitted that the Guidelines required the manager to “review the application to assess whether the employee meets the conditions of the scheme”. It is submitted that the AOPM did not make such an assessment but merely found that managers were unable to confirm that the conditions were met. It was further submitted that the AOPM did not take the trouble to conduct an investigation or to ask the Complainant or others for witness statements, steps which might have allowed him to come to a reasoned conclusion. It was stated that instead he relied solely on the admitted facts, that the incident was not reported immediately and that there was a delay in seeking medical assessments, to disallow the application.

It was submitted on behalf of the Complainant that they were not saying that these are irrelevant conditions, but the Complainant would have ready answers for questions as to delay. However, it was submitted that the Complainant does content that the existence of queries should lead to an investigation or other process addressing those queries and not to an arbitrary dismissal of the application.

It was further submitted that the Guidelines provide for an appeal to a senior decision-maker, who in this case was the HR Manager. It was submitted that the Complainant appealed the decision to the HR Manager in proper order and it had done the courtesy of sending to reminders, which went without response. It was submitted, on behalf of the Complainant, that he had no idea why the Respondent failed to follow its own Guidelines in this respect.

It was finally submitted that this failure is particularly important in the present context since the Complainant’s position would have been put to the HR Manager with some hope that the inadequacies of the AOPM’s decision would be addressed locally.

Conclusion:

It was submitted on behalf of the Complainant that, against the background of the protracted grievance process, the failure of the AOPM to make a reasoned decision on the Complainant’s application and the failure of the HR Manager to hear his appeal, the Adjudication Officer is entitled to conclude, as the Complainant has done, that, from first to last, the Respondent has been determined to deny him access to the Injury Grant Scheme.

In any event, it is submitted that, it ought to be common ground that the procedural requirements of the Guidelines have not been followed, either because the AOPM did not make enquiries sufficient to make a finding or because the HR Manager did not hear the appeal or both, as the Complainant contends.

Recommendation Sought:

Given the background and the passage of time, the Complainant suggested that a recommendation that his application be heard ab ovo and by personnel unconnected with the Complainant’s direct management would be in adequate. Therefore, the Complainant is seeking a recommendation that the Respondent calculate the correct amount of Injury Grant payable in respect of the period 15 September 2016 to 3 February 2017 and pay same to the Complainant within 42 days of issue of the recommendation.

Introduction:

The Respondent stated that the Complainant, who is employed as a paramedic at one of their ambulance bases, alleged he was injured at work on 22 July 2016, while washing an ambulance.

According to the Respondent’s submission, the Injury Grant is an allowance paid to employees who are injured during the course of their work. It is submitted that this grant is provided for by Articles 49/109 of the Local Government (Superannuation) (Consolidation) Scheme 1998 and Section 12.1 of the Respondent’s Employee Superannuation Scheme 2010.

It was further submitted that, in order to qualify for the allowance, an employee must be injured:

a)       In the actual discharge of his or her duty, and

b)      Without his or her own default, and

c)       By some injury attributable solely to the nature of his or her duty.

It was further submitted that all three criteria must be met in order for a claim to be successful.

Background:

The Respondent stated that, on 24 August 2016, the Complainant advised his supervisor of an injury sustained at work a number of weeks prior to that. It is submitted that the Supervisor asked the Complainant if he was okay to be working, to which he (the Complainant) replied he was and that he has been working since the event.

According to the Respondent’s evidence, on the following day, 25 August 2016, the Complainant’s manager asked him to get a fitness for work medical certificate from his GP. It is further submitted that the Complainant confirmed that he would get the cert as he just required some physio for a stiff shoulder. According to the Respondent, the Complainant was requested to complete an incident report form (NIMS) It was also stated that the Complainant was referred to Occupational Health on 26 August 2016.

The Respondent submitted that the power washer, which the Complainant was using at the time of the alleged incident, was examined, by the Respondent’s contracted supply and maintenance company and found to be in proper working order.

According to the Respondent’s evidence, the Complainant completed his NIMS form on 15 September 2016. It was stated that, in this form, the Complainant indicated that the date of incident was “22 July 2016 approx” and his description of the incident in question was: “washing amb vehicle & pulled hose out to full length, unknown to me it cucked and pulled me towards the reel, jerked L arm with washer gun in hand, noticed a while after a pain in L shoulder & arm. This is an ongoing problem.” It was further submitted by the Respondent that, in this form, the Complainant identifying one named colleague as a witness to the incident.

The Respondent stated that, on 15 September 2016, the Occupational Health Review stated that the Complainant reported “a shoulder injury a few weeks ago”. The Respondent also stated that the Complainant went on sick leave on 15 September 2016.

According to the Respondent’s evidence, the Complainant submitted an Injury Grant Application Form (HR112) to his superiors on 15 December 2016. According to this form, the date on which the accident was first reported to the Respondent was notified as 15 August 2016. However, the Respondent contends that the incident was first reported on 24 August 2016. The Respondent also pointed out that the form was signed and dated as 22 July 2016 but was only submitted on 15 December 2016.

The Respondent further submitted that, at a grievance hearing on 23 December 2016 and again on 25 January 2017, the Complainant’s superior officer requested him to amend the dates and resubmit the form to her as, from the dates on the form it would look like the Complainant submitted the form in July and that she had done nothing with it in the meantime.

The Respondent stated that at a Stage 2 Grievance Hearing on 20 April 2017, the Complainant advised that, on 22 July 2016, he was injured at work when the power washer recoiled, he was jerked to the left and got pain in his arm. He further stated that he took painkillers and subsequently got a lump on his arm but didn’t indicate when this occurred. It was further stated that the Complainant said he continued working after the incident and didn’t attend any medical personnel but self-medicated with painkillers.

The Respondent submitted that, in response to questions as to who was with him at the time of the incident, the Complainant stated that he was partnered by a colleague who was on leave that day but another colleague (Witness A), who was outside at the time, was a witness. The Complainant also indicated that a second person (Witness B) was there and also that there is a camera in operation in that location as well. According to the Respondent, the Complainant confirmed to the Officer who conducted the Grievance Hearing that he (the Complainant) confirmed that he first reported the incident verbally to his Supervisor who filled out injury at work form for him, which he submitted on 15 September 2016.

The Respondent’s Position in relation to the Complainant’s complaint:

With regard to the alleged incident on 22 July 2016, the Respondent stated that, at the first grievance hearing with the OPM, it was put to the Complainant that the witness (Witness A), who had been identified in his (the Complainant’s) NIMS form, as having been present when the incident occurred, indicated that he did not witness this incident on 22 July 2016, as he was not working on that date.

The Respondent also stated that the Complainant is aware of the requirement to report all near misses, any incident/Adverse Event at the end of the shift or as soon as possible thereafter but that he failed to do so on this occasion.

In addition, the Respondent stated that the Complainant continued to attend for duty, carry out his full duties and did not indicate that there were any duties he was unable to carry out or that he would not be available to do extended duties after his normal 12 hour shift. The Respondent provided detailed evidence in relation to the Complainant’s attendance at work between 22 July 2016 (the date of the alleged incident) and 15 September 2016, the day she attended occupational health and obtained a medical certificate prior to going on certified sick leave.

The Respondent also pointed to the fact that while the Complainant was requested by his Supervisor, on both 23 December 2016 and 25 January 2017, to amend the incorrect dates on his Injury Grant Application form (HR112), he did not resubmit the document until 11 September 2017.

Conclusion:

The Respondent stated that, having considered the information available around this alleged incident, to which there were no witnesses that could confirm to management that the incident occurred, and the delay in making a formal report of the incident, management are not in a position to determine that this alleged injury occurred in the actual discharge of the Complainant’s duty and therefore were not in a position to recommend the granting of the Injury Grant payment. Consequently, the application was refused.

Having carefully considered all the evidence adduced in relation to this complaint, I find that it is hallmarked by a lack of clarity and a considerable degree of confusion, all of which have combined to create a long drawn-out process, at the end of which, the Complainant felt he had no option but referred the matter to the WRC for adjudication and recommendation.

Given the lack of clarity and detail in relation to the alleged incident which took place on 22 July 2016, coupled with some significant inconsistencies in the Complainant’s account of the incident and his failure to comply with the clearly set out standard procedures pertaining to near misses/incidents/adverse events, the Respondent’s reticence in approving his application for the Injury Grant is understandable in the circumstances.

However, I’m also strongly of the view that the Respondent’s failure to deal with the incident in a timely manner when it came to their attention and, in particular, their failure, during the consideration of the Complainant’s grievance, to conduct a comprehensive investigation into the alleged incident, has equally contributed to the impasse between the parties, which led to the referral of the matter to the WRC.

Given the time delays that have occurred, which have contributed to the degree of confusion and lack of clarity, I find there is merit in the Complainant’s contention that a de novo investigation of the alleged incident and the grievances arising from it would serve little practical purpose at this point in time.

Consequently, having carefully considered all the evidence and taken all the circumstances into account, I am strongly of the opinion that the most practical and appropriate approach at this point in time and to bring the matter to a final conclusion, is for the Respondent to agree to make a payment to the Complainant and that this payment, the amount of which takes account of the Complainant’s failings in relation to the initial reporting of the alleged incident and the inconsistencies contained in his subsequent reports, should be accepted by the Complainant.

Having carefully considered all the evidence adduced and based on the considerations/findings as detailed above, I recommend that the Respondent consider making a payment in the amount of €1,250 to the Complainant, which he should accept, in full and final settlement of his complaint. I also recommend that the Respondent confirm their acceptance or other wise of this recommendation, to the Complainant, within 15 working days of the date of issue.

In the event that both parties agree to implement the Recommendation, payment should be made within 42 days of the date of the Complainant’s confirmation of acceptance.

Industrial Relations Act

Injury at Work

Injury Grant Scheme