Complainant

Respondent

Anonymised Parties

Bus Driver

Bus Company

Representatives

Cara O' Neill SITPU

Michael McGrath IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Section 13 Industrial Relations Act 1969

CA-00045030

05/07/2021

The claimant has been employed as a Bus Driver with the respondent since 2006.In his complaint form he asserts that he sustained an injury while on duty and was aggrieved that the respondent denied him access to the Occupational Illness /Injury Scheme

The union submitted that the claimant had been the subject of an assault on the 6th.May 2019 and that the incident constituted a public order offence. It was submitted that when the offending passenger got on the bus he was attempting to represent a piece of paper as a ticket – when the passenger was challenged by the driver, the passenger was unwilling to show him the purported ticket/pass. The driver told him the fare and the driver submitted that the passenger started to threaten him. The claimant said the passenger was known to him and had threatened him previously. The driver said that when the passenger was exiting he attempted to lunge at the driver but the driver managed to get the protective screen up in time to avoid a punch. The claimant said the passenger spat at him and continued with threats as he left the bus saying he knew where the driver was. The claimant said his recollection of the incident was quite clear and that the passenger spat at him. It was submitted that the claimant suffered from anxiety, psychological trauma and stress as a result of the incident  and that there was no basis for drawing a distinction between this incident and a direct physical assault.

It was contended that the complaint should not be dismissed as a result of a technicality and the union was not able to throw light on what gave rise to the delay in the transport division in referring the complaint. While it was acknowledged that the claimant was paid sick pay it was submitted that his exclusion from the occupational injury scheme could result in his loosing sick days in the future. It was submitted that antisocial behaviour was becoming more and more common. The union rep asked if the company were saying that the incident did not constitute an assault? It was contended that there had been no follow up by the company. It was submitted that the majority of people would view this altercation as an assault if it happened to them. It was submitted that this was not a collective case – it was advanced that the claimant had been subjected to unacceptable behaviour and this resulted in stress and distress for the driver. It was advanced that restricting the scheme to physical injury was unfair and that additionally the driver reported that he expected further threats to his safety.

The claimant stated that he did in fact got his doctor and she had recorded psychological trauma. He asked if the company thought it was okay for him to be abused. The claimant was adamant that the passenger lunged at him and did spit and if the cctv footage was fit for purpose, it would have recorded the lunging and the spitting. The doctors certificate referencing assault/anxiety was submitted by the union post hearing.

It was contended that the point was that an injury was not restricted to a physical injury and that if a worker is threatened or verbally abused in public it as an offence.

The claimant’s representative submitted as follows:

The claim relates to refusal to provide the claimant with access

to the occupational injury scheme.

It is the company position that the incident which is the subject of the claim occurred so long

ago as to be unreasonable to be the subject of an Adjudicator investigation at this point. The

company provided the claimant with the final decision not to provide access to the

Occupational scheme on 21 May 2019. The claimant was only submitted to the WRC on 5 July

2021, greater than two years later. The Labour Court has previously held in IR claims that

where there is an inordinate delay that the matter may not be heard. The delay in these

instances is greater than any time limit in any Employment Rights based claim. It is the

company position that the adjudicator must dispose of the matter on this basis.

Background to the Respondent.

The respondent company operate the Public Service Obligation

network in the Greater Dublin Area under a contract of services with the National Transport

Authority. Their network covers a region from Newcastle in County Wicklow to the south,

Balbriggan in north County Dublin and Maynooth in County Kildare to the west.

Background to the Issue

• On 6 May 2019 an incident occurred on a bus which the claimant was driving whereby a

passenger verbally abused and threatened the claimant and the passenger also struck the

assault screen on the bus.

• The claimant stated that as a result he was ‘shaken and unable to sleep’ the night after the

incident.

• The claimant was absent from rostered workdays on 8, 9 and 10 May 2019 following the

incident.

• The claimant applied to be covered by the Occupational Injury scheme.

• On 13 May 2019, Ms M, Depot Administrator, wrote to the claimant to advise that

his absence would not be treated as Occupational Injury.

• SIPTU on behalf of the claimant lodged an appeal to the decision.

• On 21 May 2019, the HR Services Manager, Mr G, after viewing the CCTV footage,

examining what was alleged by the claimant and speaking to Garage management, responded

to the union to stating that the appeal was unsuccessful.

• The claimant submitted his claim to the WRC on 5 July 2021 November 2019, almost 26

months after the final decision from the company was issued.

Company sick pay schemes

• The Respondent operate two Sick Pay Schemes, one is an Occupational Injury Benefit and the

second is employers Welfare Scheme. Both schemes operate a sliding scale of payment offering 26

weeks of sick pay benefit and the rate of benefits received takes into account any social

welfare benefit as follows:

- 100% of their basic weekly wage for the first four weeks of sickness

- 70% of their basic weekly wage for the next eight weeks of sickness

- 60% of their basic weekly wage for the next fourteen weeks of sickness

• Under the employers scheme, employees have the benefits outlined above. When they return to

work, they must wait 6 months before entitlement to sick pay is reinstated.

• Under the Occupational Injury Scheme, when employees return to work, there is no waiting

period before sick pay can be re-instated.

Respondents Position

• There was no occupational injury as a result of the incident. The clamant received verbal abuse

form a passenger and the passenger hit the assault screen.

• There has been no medical evidence which determined that any injury existed. The claimant

has not provided any such documentation to the company.

• The claimant was absent for a total of 3 days and was paid in full under the employers Scheme.

• The company position is that there is no justification to pay the claimant under the

occupational injury scheme.

Conclusion

In conclusion, the sick pay schemes afforded to employees of the respondent are very

generous and the Respondent has a right to ensure that they are monitored to ensure they

are applied in the appropriate instances and not abused or misapplied. It is the company

position that the circumstances in this case are not appropriate for the provision of such

benefit. The knock-on implications of providing payment under the Occupational injury

scheme for any employee in these circumstances are obvious and would have a high financial

cost and also prohibit the company from effectively managing absence in the company. We

look forward to the company position being upheld.

The respondent’s representative stated that the company issued their final decision on the claimant’s application for the occupational injury Scheme on the 21st.May 2019 and the referral to the WRC was not submitted until the 5th.July 2021 – some 26 months later. It was submitted that any such dispute must be reasonably before the WRC/Labour Court and given the time lapse between the decision and the referral it was inappropriate to investigate the complaint some 2 years later – without a reason being advanced as to why the complaint should be heard. It was argued that in such circumstances it would be inappropriate and set a precedent for further claims if the matter was to proceed to investigation.

It was submitted that the claimant was given the benefit of the Employers Sick Pay Scheme .The claimant had applied to  for the Occupational Injury Scheme , the Dept. Manager had investigated the circumstances and decided that it was appropriate to the conventional Sick Pay Scheme – it was submitted the no injury had arisen and no medical evidence had been submitted. The claimant had been paid for 3 days of absence under the conventional Scheme. It was advanced that anything which could undermine the management of the Scheme would be outside the jurisdiction of an Adjudication Officer as it would impact on the pay of a body of workers. It was submitted that this amounted to a historic appeal and would open up a multitude of other complaints. It was submitted that the point at issue was not the question of medical evidence and whether or not it substantiated the injury but the matter of access to the Scheme.

The claimant’s manager advised that he investigated the claim and checked the cctv footage of the incident. He asserted that what he saw on the tv footage did not add up to the statement of the claimant – he asserted the footage did not record the passenger spitting at the claimant. He said that all such incidences / complaints are referred to the Gardaí on a monthly basis. He stated that an aggrieved individual would be required to make a formal complaint to the guards.

It was submitted that there was no evidence of an injury advanced and that this was an issue of anti-social behaviour and that the occurrence of anti-social behaviour does not mean an employee would have direct access the Occupational Injury Scheme.

I have reviewed the submissions made at the hearing and the documentation furnished following the hearing including the certificate issued by the claimants’ GP. While I acknowledge  the submissions made by IBEC with respect to the delay in the lodgement of the complaint , I am satisfied the respondent was given the opportunity to object to participating in the hearing and declined to do so. Accordingly I am satisfied that no jurisdictional bar applies.

The claimant’s representative advised following the hearing that the complainant “ would have gone over the 4 days of uncertified absence so would not have qualified for the attendance bonus”. Accordingly I cannot recommend in favour of the claimant. While I acknowledge that the issues as to whether the occupational injury scheme should additionally cater  for assaults /abuse of a nonphysical nature and the merits of introducing a notification system which  would inform the driver of the grounds upon which the application for the Occupational Injury Scheme was rejected  ,  are matters for collective engagement between the parties as it is not an individual matter and has implications for the wider body of drivers .