Complainant

Respondent

Anonymised Parties

An Employee

A Public Transport Company

Representatives

Cara O'Neill SIPTU

John Brosnan Iarnroid Eireann

Act

Complaint/Dispute Reference No.

Date of Receipt

Railway employee – long service – injury at work – sought a recommendation from WRC that the  Respondent pay him compensation for the difference in pay between “average contract pay” and the sick pay that he received for 15 weeks absence from work, this difference being €4875, having been refused same by Respondent internally.

The Complainant worked for forty years for the Respondent. In the last year of his employment in 2020 he was injured at work lifting equipment. His was a soft tissue injury that only became apparent a number of days following the incident. A week after the incident he informed his line manager of what happened and while he thought he would be alright that his back had got worse. He went on sick leave but due to the operation of the Respondent sick and injury payment scheme he only received payment for the 15 weeks  absence based on 60% of  his salary. The payment failed to take account of his normal working hours as being 48 hour week instead of a 39 working week.  His loss arising from this was €4875.00. He applied to obtain the benefit of a discretionary injury payment (the “average contract earnings payment”)  but was refused because one of the criteria of the payment is that the incident and injury is reported in a timely manner. The Complainant did not report the matter for a week following the injury because it had only developed over the days following the injury and he reported the injury to his supervisor as soon as he knew that he would not be able to work, as he had hoped.

The Respondent refused his entitlement because he had not reported the incident on the day that it occurred.

An “average contract earnings payment” is not a term or condition of employment. Rather it is a discretionary payment that entirely up to the Director of Human Resources together with the CMO and the legal department. As it is a purely discretionary payment there can be no claim to an entitlement of it. There is no collective agreement with the trade union as regards this payment. The Complainant had already taken sick leave in 2020 and 2021 and had been paid correctly in accordance with the Respondent sick/injury pay scheme. There is no entitlement to any further payment and any claim to an entitlement to payment under the average contract earnings payment (which is paid on a purely discretionary basis if an employee has been injured in the course of his employment duties) is erroneous. The Complainant did not report the work place injury for a period of 7 days even though his obligation is to report it on the day of the incident.

The Complainant contends that he is entitled to an average contract earnings payment for the 15 weeks that he was absent from work. This is because he alleges that on the night of Monday 29 June 2020 he sustained a twisting back injury while in the course of lifting heavy equipment. He asserts that the severity of his injury did not become apparent to him until 2 days later when he was doing heavier manual lifting again at work. The following day he was in greater pain and made a GP appointment. As he was only doing supervisory duties on Friday 3 July, he attended work, hoping that his back would improve but his GP certified his unfitness for work from the following Monday onward and he was absent for work for 15 weeks. The extent of his injury was such that he needed to get MRI scans and other medical treatment.

He was surprised – given that he was  injured during the course of his employment that he only received 60% of his salary for the 15 weeks absence. He was informed during the Adjudication hearing that this was because he had been absent from work due to injury and illness in 2020 and 2021 and the sick pay scheme is a rolling entitlement scheme, which he accepted.

Following his injury he applied to be considered for the enhanced “average contract earnings” payment which would have allowed his to receive full pay if he was injured while at work. However this was denied to him by the Respondent  on the basis that (a) is a purely discretionary payment and (b) because he had waited a week before reporting the injury to management.

As an adjudicator in Industrial Relations complaints such as this, I do not have jurisdiction to do other than give effect to the terms and conditions of the existing employment relationship. For example if there are existing terms I may recommend that such terms be given effect to. If there are not such terms it would be inappropriate, indeed unhelpful, for an Adjudicator to involve herself in creating terms or conditions of employment that have not been agreed between the parties. Not only would this be unfair but it could also have the effect of creating a precedent whereby other parties would seek to reply on a condition of employment, which had not ever been agreed.

For this reason, I accept that there is no entitlement to be paid an “average contract payment” which is purely a discretionary payment. The exercise of such discretion being at the behest of Management.

For this reason I am not prepared to uphold the complaint insofar as it relates to a claim that the Complainant is entitled to be paid under that payment and a remedy that his loss be repaid to him.

However,  this is not the end of the matter. The way that the payment exists is such that it is not possible for an employee to ever know how he or she may even be considered to receive such a payment. This is unusual because there being no union/management agreement in place, and the payment being purely discretionary, one wonders how any employee could be aware of the scheme at all – other than through word of mouth that other employees have got it and others have not.

The basis for the refusal of the payment in this case was that the Complainant did not report the matter in a timely way.

And yet if the possibility of this payment being available to an employee– if not entitlement –is subject to a timely report of a work place injury, one would expect that this would have been made known to the staff. But it is not. In other words this is a discretionary payment, for which no criteria exist, and no right to it exists, but it may be refused if the injury is not reported on the day an injury is sustained. It may be refused for other unknown reasons too presumably but this is one reason that was cited in this Adjudication.

However  as regularly occurs with soft tissue injuries, the severity of them does not necessarily materialise until days following the event. This is what happened in this case. And no party denies that the Complainant reported it to management within 7 days, when it became apparent to him that he would be unable to return to work. And he believed at that point that he would still be considered for the payment not knowing that because he had not reported what was essentially a non-incident on the day that it occurred that he immediately fell outside the undisclosed criteria that applied. He did report it to management as soon as his back worsened  and when he knew that the injury would necessitate an absence from work.

I agree with the Respondent representative, that the Complainant has not made out a case that entitles him to a payment under the discretionary arrangement, but I do consider that he, was entitled to know, before the injury occurred  the criteria upon which the discretionary payment would assessed to allow him to be considered for a payment. This was not provided to him, he did not know it and the Respondent accepts that the criteria are not published or provided to employees.

The discretionary payment need not exist at all, but if it does exist, the terms of its application should be transparently clear so that employees may know how the entitlement will be considered, even if the payment is not ultimately sanctioned. I accept that while the Complainant was aware of his duty to report of an accident on the day of its event and that he did not do so. However this is explicable because (a) he did not think it was serious on that day it happened and (b) he did not know, there being no criteria for how the discretion is applied, that the failure to report it on the day would disentitle him to even qualify for consideration for the payment. The Respondent accepts that there is no published criteria on the entitlement to be considered for the payment or that eligibility for consideration would fail if the incident wasn’t reported on the day.

For the above reasons, I find that the complaint insofar as it is an entitlement to a purely discretionary payment  is not well founded however the fact that the complainant  could not have known that where the effects of the injury do not materialise for a few days after the incident, that the failure to report the incident on the day would  automatically render him to be disentitled to even be considered for the payment. I find that to be unreasonable and for the less than gracious way this matter was handled internally – given the Complainant’s 40 years of solid service and being as close to retirement as he was -  I recommend that a compensation payment of €1600 be made to the Complainant.

For the reasons stated I find this complaint to be upheld in part and I award the Complainant €1600.