Complainant

Respondent

Anonymised Parties

Paramedic

Health Service

Representatives

Ms. Aine Feeney, SIPTU

Self-Represented

Act

Dispute Reference No.

Date of Receipt

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

CA-00045066

06/07/2021

The Worker commenced employment on 30thJanuary 2017. At all times, the Worker’s role was described as that of “paramedic”. On 6th July 2021, the Worker referred the present complaint to the Commission. Herein, he alleged that the Employer has unreasonably refused an “Injury at Work” application. By response, the Employer denied this allegation, stating that the Worker was not entitled to the benefit by reference to the terms of the scheme to which it was attached.

A hearing in relation to this matter was convened for, and finalised on, 10th June 2022. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing.

No issues as to my jurisdiction to hear the dispute were raised at any stage of the proceedings.

The Worker is engaged as a paramedic with the Employer. On 9th November 2020, the Worker suffered an injury to his back in the course carrying out his contractual duties. The Worker subsequently applied to be placed on the Employer’s “Injury Grant Scheme” on 30th November 2020. On 16th March 2021, the Worker was informed that he had been refused access to the scheme as his injury was deemed to be a recurring injury. This decision was upheld on appeal dated 19th April 2021. 

The Worker sought to appeal this finding to under the terms of the Employer’s grievance policy, however he was initially informed that the issue did not fall under the terms of the same. Following representations in respect of the same, a grievance hearing was eventually convened for 29th September 2021. By determination dated 5th October 2021, the Employer again found that the Worker was not entitled to be entered onto the scheme. This outcome was further upheld on appeal.

By submission, the Worker’s representative stated that the Employer sought to rely on the exemption that of the grant being, “…not permissible for anyone suffering a repeat or reoccurrence of an existing or non-specific work injury”.  The Worker submitted that they were not permitted to challenge this position, in contravention of due process. He further submitted that the actual details of the scheme should have been made available to him early on in the process. The Worker further submitted that no risk assessment or occupational injury investigation were carried out in respect of the injury, in contravention of the Respondent’s own policy in this regard. On foot of the same, the Worker requested that the matter be re-submitted for evaluation by a party not connected to the original application.

By response, the Employer denied the allegation and submitted that they had applied the terms of the grant to the worker in a fair and transparent manner.

On 12th December 2019, the Worker submitted an Injury Grant Application regarding an injury to his lower back. This application was granted, and the grant was paid until the Worker returned to work on 30th March 2020.

Following the same, the Worker submitted a second application in respect of the same injury approximately eight months later, on 30th November 2020. This application was reviewed by management in line with the Employer’s internal procedures. In circumstances whereby the injury was a re-occurrence of an existing injury the grant was not applied.

The present dispute involves the Worker’s contention that he qualifies for the Employer’s “Injury Grant” scheme.

This grant is provided for by Articles 49/109 of the Local Government (Superannuation) (Consolidation) Scheme 1998 and Section 12.1 of the Respondent’s Employee Superannuation Scheme 2010.

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, and

C.       By some injury attributable solely to the nature of their duty.

It is accepted by both parties to the dispute, that all three criteria must be met prior to approval.

It is common case that the Worker applied for, and was granted, access to this scheme in late 2019. The dispute arises regarding a second application for the grant in respect of a similar injury in late 2020.  This application was consistently denied on the basis that the injury was a re-occurrence of a previous injury and consequently, the Employer deemed the same to be outside the terms of the scheme.

A number of issues arise in relation to this contention. Firstly, I note the rules for acceptance to the scheme are silent as to the issue of a recurring injury. This exemption appears to be applied by the Employer in their interpretation of the rules, rather than an express stipulation of the same. It may well be that a recurring injury will fall foul of sections B & C of the rules, however in this instance it is for the Employer to demonstrate the same.

It should further be noted that the manner in which this would be demonstrated, and an apparently fundamental requirement of the scheme, is the consideration of a medical report outlining the nature and extent of the injury. Such a report would clearly indicate whether injury is new, is attributable to the duty or was exacerbated by the Worker’s own actions. In this regard, the absence of the same undermines the Employer’s position regarding the inapplicability of the rules.

I further note that the Employer has sought to deny access to the scheme on the basis of a pre-existing injury that they accept occurred in the course of employment. In this regard, the application may be viewed not as a new application, but the continuance of a pre-existing application. Again, if the Employer seeks to disqualify the Worker’s application on the basis of an exacerbation of the injury in the intervening period that is unrelated to his duties, they as the party making such a assertion must prove evidence of the same.

Having regard to the foregoing, I recommend that the Employer should re-examine the Worker’s application for the grant. If the Employer seeks to refuse entry onto the scheme, such refusal should be supported by third party medical evidence. Finally, I recommend that the difficulty in obtaining such evidence at this stage should not act the to detriment of the Worker.

I recommend that the Employer should re-examine the Worker’s application for the grant without two weeks of the date below. If the Employer seeks to refuse entry onto the scheme, such refusal should be supported by third party medical evidence. Finally, I recommend that the difficulty in obtaining such evidence should not act to the detriment of the Worker.

Injury Grant, Pre-Existing Injury