Complainant

Respondent

Anonymised Parties

An Employee

A Centre Catering for Persons with Intellectual Disabilities.

Representatives

Lisa Connell Forsa Trade Union

Robin McKenna 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-00039125-001

11/08/2020

The Complainant was employed by the Respondent from 01/09/1990. The Complaint Form was received by the WRC on the 11th August 2020. The dispute concerns the Complainant’s claim to benefit under an Injury at Work Scheme in circumstances where the Respondent asserts there is no such entitlement.

The Complainant is a Social Care Worker employed by the Respondent. In the course of carrying out her duties on the 17th November 2019, the Complainant was seriously physically assaulted along with a colleague, and sustained injuries and trauma.  As a result, the Complainant continues to be out of work. The Complainant’s union Fórsa successfully sought the application of the Respondent’s Serious Physical Assault Scheme which provided for the Complainant to avail of six months separate paid sick leave in addition to her normal sick leave entitlement. After the Complainant had exhausted the six-month provision under the Serious Physical Assault Scheme, she sought to have the Injury at Work Scheme applied but this was refused – and continues to be refused - by the Respondent. According to the Complainant, the Injury at Work scheme provides for the continued payment of a 5/6th allowance of pay for eligible persons. The following is a summary of the sequence of events:

·       17th  November 2019 - date of workplace assault;

·       20th November 2019 - the Complainant first signed off on sick leave and has been out of work since;

·       27th of November 2019 -  the Complainant sought the application of the Serious Physical Assault Scheme;

·       25th February 2020 after further engagement between the Complainant/union and the Respondent, the Respondent confirmed that the Serious Physical Assault Scheme would be applied to the Complainant;

·       20th March 2020 payment to the Complainant was processed pursuant to the application of the Serious Physical Assault Scheme;

·       28th April 2020 the Respondent advised the Complainant that payment under the Serious Physical Assault Scheme would end on the 2nd  May 2020 at which point Complaint would revert to normal sick leave arrangements;

·       30th April 2020 the Complainant wrote the Respondent outlining there was provision within the Serious Physical Assault Scheme for an extension which she was applying for – ie under the Injury at Work Scheme;

·       11th May 2020 the Respondent reverted to the Complainant advising that it would not implement the Injury at Work scheme.

In addition to the ongoing representations by the Complainant and her union, on the 27th May 2020, the Complainant initiated a grievance procedure in relation to the Respondent’s refusal of the Injury at Work scheme. The Complainant’s grievance was not upheld and neither was her appeal of the grievance procedure outcome. The appeal was heard by the Respondent’s Board of Management which the Complainant considers to be a breach of the Respondent’s policies and procedures and added an additional layer to the grievance procedure.  

It is the Complainant’s position, that she has been treated poorly and unreasonably by the Respondent particularly in relation to the period in the aftermath of the assault, as regards the initial difficulties in obtaining the benefit of the Serious Physical Assault Scheme and subsequently, the failure to provide the full benefit of that scheme/ie the Injury at Work scheme. Further, the Complainant asserts that the Respondent is a section 38 agency, is funded by the HSE and accordingly should operate within the scope of public sector agreements and apply the Injury at Work Scheme. The Complainant also stated that expenses submitted by her in February 2020 had not been paid which related to GP, physiotherapy, counselling and psychotherapy costs.

The Respondent stated that it cannot accede to the Complainant’s claim as it would have significant ramifications, not only because it never had been introduced in the company but also because of the financial impact on its services due to an ever worsening deficit. In that regard the Respondent outlined its history and the development of its services. The Respondent also outlined the details of the Complainant’s employment including her various attendances with the company doctor who certified her ongoing unfitness for work. The Respondent stated that it did not uphold the Complainant’s grievance as it was not in a position to implement the Injury at Work scheme. In that regard the Respondent outlined its Stage 3 response of the 7th  October 2020 to the Complainant’s Grievance Procedure appeal  wherein it stated:

“[Respondent] has never paid this scheme by reason that as a Section 38 Organisation and under the Nominated Health Agency Scheme there is no provision for the injury at work scheme.”

In support of its position, the Respondent cited its Serious Physical Assault Scheme which it stated provides that “consideration may be given” to the Injury at Work scheme and Department of Health Circular 12/99 which it quoted as containing similar wording as follows:

“2(a) This article of the Scheme provides for payment of a gratuity or an allowance in money for life or for a limited period as the health agency may consider reasonable….”

The Respondent outlined that it operates a sick pay scheme of three months full pay and three months half pay in a rolling four year period. When this was exhausted the Respondent applied the Serious Physical Assault Scheme which provided for an additional/separate six months sick leave on full pay. Following the exhaustion of the Serious Physical Assault Scheme the Complainant reverted to paid certified sick leave which ended on the 12th July 2020. Thereafter, the Complainant commenced being paid Temporary Rehabilitation Remuneration (TRR) from the 15th  July 2020 and  remains in receipt of this payment.

It is the position of the Respondent that since the incident that led to the Complainant’s absence from work in November 2019, it has been supporting her throughout, that the Complainant has been reviewed by the company doctor on several occasions, that she has the support of the Employee Assistance Programme and that the Respondent has done everything it could to facilitate her return to work. The Complainant, it stated, had received all of the sick pay benefits outlined in its Sick Leave Policy but – the Respondent stated - it does not, nor has it ever, operated the Injury at Work scheme.

Section 13(2) to of the Industrial Relations Act 1969 provides as follows:

“Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended ….. a party to the dispute may refer it to a rights commissioner” (since amended to refer to an Adjudication Officer)

In the instant case the Complainant is seeking access – retrospectively – to the Injury at Work scheme as provided for in the Circular 12/99 titled “Scheme for staff employed by agencies participating in the Nominated Health Agencies Superannuation Scheme (NHASS) absent from work as a result of a serious physical assault incurred in the course of his/her duty”.  I have considered the terms of this scheme, the Respondent’s Sick Leave Policy, the terms of the Serious Physical Assault Scheme (May 2009) and HR Circular 0013a/2017. In addition, I note that the Respondent has accepted it is a Section 38 agency. I also note that case ADJ-00017494 cited by the Complainant concerned access to the Serious Physical Assault Scheme as distinct from the Injury at Work Scheme.

In all the circumstances, I am of the view, that the repeated use of the word “may” in Circular 12/99, in the Respondent’s Sick Leave Policy and in the Serious Physical Assault Scheme denotes discretion as to whether or not the Injury at Work scheme is to apply. I am also of the opinion that HR Circular 0013a/2017 does not definitively clarify the matter and I note that this Circular states that “….the granting of the injury allowance is discretionary…”. The Respondent has explained its reasons as to why it cannot operate the scheme and whilst this is unsatisfactory from the Complainant’s perspective, I consider that any change to the terms of the scheme or to the sick leave policy to mandate the application of the Injury at Work Scheme, is a matter for collective negotiation as distinct from a recommendation arising from an individual case. In a somewhat similar vein, I note that the Labour Court [LCR22370] declined to interpret the provisions of a Circular relating to incremental credit and in that regard, the Court stated:

“…..it is clear that the effect of such an interpretation is not confined to one individual. Potentially at least, it impacts on others whose circumstances are similar. In these circumstances the Court is satisfied that any decision it would make in this case would, actually or potentially, affect the pay of a group of workers”.

However, having considered all the circumstances of this case, I am also of the view that the Respondent’s response to the serious physical assault incurred by the Complainant and its handling of the Grievance Procedure, was inadequate and uncertain and at a stressful time for the Complainant, left her with no option but to seek union support. In addition, the Complainant has stated that her medical expenses were not paid notwithstanding that this is provided for in the Respondent’s Sick Leave Policy. Consequently, I make the below recommendation in respect of these matters.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute and accordingly I recommend:

·       That the Respondent pay such medical expenses as were reasonably incurred by the Complainant arising from the serious physical assault she endured on the 17th November, 2019;

·       That the Respondent pay compensation to the Complainant of €1000 in respect of the delays and uncertainty she encountered in accessing the Serious Physical Scheme and processing the Grievance Procedure. 

Access to Injury at Work Scheme, Assault at Work