Complainant

Respondent

Anonymised Parties

A Worker

A Provider of Services

Act

Complaint/Dispute Reference No.

Date of Receipt

Dispute seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00044741

22/06/2021

The Complainant asserts that she was entitled to be paid the Employer’s Injury at Work grant due to a back injury that was caused by her duties in the workplace. The Respondent disputed this entitlement.

The Complainant has been employed by the Respondent since 6th December 2006 and has been located in Mullingar for the duration of her employment.

In the course of May 2020, and as a result of service demands arising from the pandemic, the Complainant was assigned a role of collection and distribution of Personal Protective Equipment (PPE) across the Midlands region. This involved collection of the PPE in Dublin and distribution of same across the Midlands. The average distribution was 50 boxes per shift with each box weighing approximately 6.5kg. One location required the Complainant to carry the boxes up a flight of stairs. No support was provided to the Complainant throughout.

The Complainant attended an Occupational Health appointment on 29th September 2020 and consequent on same returned to the office and advised her line manager of the position. The Complainant clearly indicated that she was not in a position to continue with the current duties in the absence of support from other colleagues or the provision of a trolley and/or additional supports. In fact the Complainant suggested a transfer to contact tracing, however her line manager indicated that he would deal with the issue on receipt of the report from Occupational Health. The report issued dated 5th October 2020 and clearly stated that the Complainant should avoid frontline duty and “avoid pushing, pulling and carrying heavy objects”.

Despite the report issuing, servants and agents of the Respondent continued to direct the complainant to carry out the tasks alone and without the benefit of any aids. Following an MRI in November 2020 the Complainant was referred for surgery in January 2021. Due to the Complainant’s concern around sick leave and her entitlements she corresponded with management on 17th December 2021. Thereafter various correspondence crossed with the Operations Resource Manager (ORM), the Complainant’s line manager, and on 19th February 2021 the ORM corresponded and confirmed that he had corresponded with Occupational Health with specific questions, as he did not have sufficient information for the Injury at Work application to be finalised.

On 22nd February, 2021, the ORM corresponded to confirm that, the Ass. Chief Officer for the region “is satisfied with what OH sent and is putting it forward for approval at HQ and HR level”. Having had no further update on the matter however, the Complainant corresponded under cover of correspondence of 1st March, 2021. On 4th March 2021 the Complainant was advised by the ORM that the Injury at Work application was not approved as it did not meet the criteria.

On 9th March, 2021 the Complainant corresponded and requested the reasons for the refusal.

The basis for the refusal was given as

a.      Query in relation to manual handling being up to date.

b.      Query that the back injury pertained to a pre-existing injury.

The Complainant responded to Management on 15th March, 2021 and again on 12th May, 2021 in relation to an appeal of the decision to refuse the Injury at Work grant. On 5th August 2021 correspondence issued from the Business Manager confirming that the refusal was based on the repetitive nature of the injury and not now on the initial grounds.

The Complainant returned to work on 16th August 2021 to alternative duties.

The Respondent stated that the terms and conditions of the injury grant scheme stipulate that “it is an allowance paid to employees who are injured during the course of their work and 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

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

It was also highlighted that all three criteria must be met in order for the grant to be paid.

The Respondent stated that the Complainant’s application for the grant was refused on March 2nd 2021 because it did not specify a specific incident resulting in an injury at work. It was also highlighted that the Complainant stated “various” on the application form as the place where the accident happened.

It was also asserted that the date listed on the complaint form on which the injury was said to have occurred was January 6th 2021, a date on which the Complainant had a spinal procedure on her back and was therefore not at work. 

I note firstly that the Complainant was assigned a role of collection and distribution of Personal Protective Equipment in May 2020 and recognise that there was considerable lifting involved in this. I also note that she had spinal surgery in January 2021, which she alleged was attributable to the duties she had been assigned to in May 2020.

I further note that according to the terms and conditions of the Respondent’s injury grant scheme, for which the Complainant’s application was refused, that “it is an allowance paid to employees who are injured during the course of their work and that “in order to qualify for the allowance, an employee must be injured

(d)   In the actual discharge of his or her duty and

(e)    Without his or her own default

(f)     By some injury attributable solely to the nature of his or her duty

Given the nature of the Complainant’s injury, namely a back injury that was caused and developed over a period of time, it is impossible for anyone to say with any degree of certainty whether this arose in the actual discharge of her duty or if it was attributable solely to the nature of her duties, even if she never had any issues with her back, prior to assuming her new lifting and carrying duties in May 2020.

Furthermore, while I also note that the report from Occupational Health in October 2020 stated that the Complainant should avoid frontline duty and “avoid pushing, pulling and carrying heavy objects” and that this recommendation was not adhered to by the Respondent, there is no suggestion from this report to suggest that the she was injured in the actual discharge of her duties or that injury was attributable solely to the nature of the duties she assumed in May 2020.   

In addition, I cannot say if the injury was caused through any fault of her own, namely if she was lifting the items incorrectly, or indeed if it was the Respondent’s fault for not training her properly in her duties. This is because the injury developed over a number of months which means that it is impossible to identify who, if anyone, was at fault for it.

While I have the utmost sympathy for the Complainant, especially given that she was only fulfilling the role she believes caused her back injury following an assault in the workplace, I cannot find that she is eligible for the injury grant scheme because it is impossible to say with any degree of certainty if she met any, let alone all three, of the criteria required to meet the eligibility requirements.    

I cannot make a recommendation that is favourable to the Complainant for the reasons set out above.