FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DAUGHTERS OF CHARITY DISABILITY SUPPORT SERVICES (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY IRISH NURSES AND MIDWIVES' ORGANISATION ) DIVISION : Chairman: Ms O'Donnell Employer Member: Mr Murphy Worker Member: Mr McCarthy |
1. An appeal of an Adjudication Officer's Recommendation No. ADJ-00019329.
BACKGROUND:
2. This case is an appeal of an Adjudication Officer’s Recommendation by the Worker. On the 4 June 2019 the Adjudication Officer issued the following Recommendation:-
- “I partially uphold complaint CA-00025235-001 but make it explicitly clear that the issue regarding the application of the ‘Injury at Work’ scheme is a matter for the parties to the national negotiations and I do not uphold that aspect of the complaint.
However, taking account of the complainant’s medical costs and some element of recompense for other losses I recommend payment to the complainant €5,000.00.
A Labour Court hearing took place on the 30 August 2019.
DECISION:
This case is an appeal by a Worker of the Decision of an Adjudication Officer. The Adjudication Officer partially upheld her complaint and recommended payment of €5,000. The issue in dispute between the parties is the Worker’s claim for application of an “Injury at Work” Scheme in relation to an injury she suffered in the workplace and payment of her medical bills. The Union in their submission on behalf of the Worker pointed to the existence of such a scheme in the HSE, which is the funding agency for the Daughters of Charity. The Daughters of Charity is a Section 38-funded organisation. The Union acknowledges that the application of the Injury at Work Scheme is being addressed nationally in respect of Section 38 agencies but points to the fact that a different independent Section 38 agency has recently agreed to apply the Scheme to their workers. It is the Employer’s position that they do not have an “Injury at Work” Scheme and that they cannot make payments under a scheme that does not currently exist in their employment. It is their submission that this is a collective issue and therefore outside the scope of this claim. The Employer submitted that the Worker received all her entitlements in relation to the sick pay scheme that exists within the organisation.
The Union brought to the attention of the Court a HSE Circular dated 16thNovember 2017 from Rosarii Mannion addressed to, amongst others, CEOs and HR Managers of Section 38 organisations. The parties disagreed as to the interpretation of the paragraph headed “Employees who are members of the Single Pension Scheme 2012” and whether or not this provided an entitlement for an employee of a Section 38-funded employment to make a claim under the Injury at Work Scheme. The Court recommends that the parties jointly refer this issue to the Health Sector JIC for a decision as to what this paragraph means in the context of employees of Section 38-funded agencies who are members of the 2012 Single Pension Scheme.
The Court notes that at paragraph 3.2 of the Employer’s submission it states that the Worker “was deemed fit to return to work in October 2018”. However, the Court notes that a letter dated 28thNovember 2018 from the Employer’s medical assessors state that they have not yet received job descriptions or a context for the suggested services to facilitate the Worker’s return to work. No explanation was given to the Court for the delay by the Employer in providing this information to their own medical assessors. While this delay might not be considered excessive the Worker was not in receipt of any income for that period and taking all the circumstances of this case into consideration the Court recommends in line with the Adjudication Officers Recommendation the payment of €5,000 to the Worker. The Decision of the Adjudication Officer is varied accordingly.
The Court so recommends.
Signed on behalf of the Labour Court
Louise O'Donnell
CR______________________
27 September, 2019Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.