Worker

Employer

Anonymised Parties

A Social Care Worker

A Public Body

Representatives

Lisa Connell,  Fórsa Trade Union

 Cliona Kenny, Comyn Kelleher Tobin Solicitors  

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-000046896-001

29/10/2021

On 29 October 2021, the Worker, a Social Care Worker in a Residential setting, claimed that he had been denied continuance of the serious Physical Assault at Work Scheme, which had been replaced by the normal sick pay scheme.

The Employer is a Public Body and recorded a rejection of the claim.

Both parties came to hearing represented. The Worker was represented by his Trade Union, Forsa and the Public Body was represented by their Solicitors, Comyn, Kelleher, Tobin.

Both Parties approached the hearing prepared and both parties furnished helpful written submissions.

I did encourage the parties to explore an option for individualised resolution. I am grateful to the parties for attempting this, albeit unsuccessful option.

At the conclusion of the hearing, I sought a foundation document in the claim referred to as an application form for access to the Serious Physical Assault at Work Scheme, namely, HR 108.

Some weeks has passed now since this request was issued. I have not received a copy of this requested form to assist me in my investigation.

I have decided to move to completing my Recommendation in the case.

The Union outlined that on 15 November 2020, the Worker, based in a Residential setting, since 2000 was the recipient of 3 occurrences of a serious physical assault in the workplace.

The Union contended that the Employer was initially supportive by applying the terms of the Serious Physical Assault at Work Scheme (SPAW) to the Complainant until altering this to application of the terms of normal sick leave halfway through a 7-month period of absence.

The Union argued that this was an incorrect interpretation of the scheme and initiated a grievance to align the provisions of SPAW to his period of absence.

The Union accepted that the Worker delayed in making formal application for access to SPAW consistent with the timing of the assault.  He sought application of the scheme in February 2021, and this was applied retrospectively for a period of one month but not augmented to reflect the entire period of absence.

The Union outlined the circumstances surrounding the staffing complement on duty prior to the assault. The Worker recorded the incidents of assault. There was no immediate intervention by the Respondent towards the Worker in the aftermath of the assaults.

The Worker consulted his own GP and was placed off work. He requested an Occupational Health review, which was delayed until 22 December that year. A subsequent recommended referral to a further support service did not materialise.

On February 10, 2021, the Worker requested access to SPAW scheme. On 4 March 2021, the Employer denied SPAW for the duration of the full absence as Occupational Health had determined that “there were no lasting physical injuries “The Complainant was permitted a retrospective application of SPAW which spanned the period 23 November – 21 December 2020.

On March 30, 2021, The Union claimed access to SPAW scheme to cover the total period of absence.

On 31 March 2021, The Employer responded that a retrospective SPAW has been granted in the Workers case. They stated that as physical symptoms had abated the scheme was no longer applicable to the Worker.

The Worker was invited to detail medical expenses incurred for recoupment. Further debriefing was offered to facilitate a return to work.

The next day, the Union sought a further consideration of the claim, when they stated

“The worker is currently out of the workplace on the basis of the serious physical assault he sustained, and his injuries directly result and stem from the assault that occurred in the workplace. “

The Union disputed the curtailment of the scheme and sought application of SPAW. once more.

On 12 April 2021 the Employer re -iterated that once physical injuries ceased, access to SPAW ceases also.

The Union sought to persuade the Employer to apply the scheme reliant on a previous WRC case of ADJ 17494 dated January 2019.

The Worker invoked the grievance procedure on 15 April 2021 and findings issued on 25 October 2021

The findings confirmed that application of SPAW scheme was subject to management approval. The Workers physical injuries had abated, and he was no longer entitled to access the scheme when the effect of the assault was psychological “

He was denied an augmentation to the SPAW scheme. The case proceeded to adjudication.

The Union submitted the following arguments:

1.       The occurrence of the assault of 15 November 2020 was set against a 5-month period of violent behaviour at the Unit. The Worker was assaulted in the course of his work, resulting in a seven-month absence from work. He was wrongly categorised for the sick leave scheme and the application of SPAW was too brief.

2.       The Worker met the terms of the serious Physical Assault at Work Scheme

3.       The Employer acted arbitrarily in limiting the scope of the SPAW based on their interpretation of an OHD Report. There is no provision for this in the SPAW scheme.

4.       The SAPW is a Collective Agreement between Unions and Employers at National Joint Council. The matter was not raised at that appropriate forum.

5.       The Worker in this case has been a previous recipient of assault at work.

6.       The Employer did not engage with the worker after the assault and supportive measures were actioned by the Worker himself.

In a bid to resolve the dispute, the Worker sought applications of the Serious Physical Assault at Work Scheme in line with the Circular.  They contended that Sick leave should be recalibrated for the record. Re-imbursement of pay on transition from full pay to half pay at the lower end of sick leave.

The Employer is a Statutory Body within a Public Body. It employs c. 5,000 people in 350 locations across Ireland.

The Employer has rejected the claim.

The Employer Representative outlined the terms of the Serious Physical Assault at Work scheme, (SPAWS) which is applicable to employees “who are seriously assaulted in the course of their duties “

On successful qualification, the scheme delivers a refund of medical expenses and payment of full pay, allowances and premia for up to 6 months for Officer grades.

The Employer submitted that the scheme was correctly applied in this case and the Employer was entitled to cease payment once the Occupational Health Department confirmed that the physical injuries which the complainant had received had subsided.

The Employer outlined a chronology surrounding the circumstances of the assault on 15 November 2020.

 The Worker resumed work in the aftermath of the assault and on 23 November, submitted a sick certificate for “work related stress “He was absent from work 23 November 2020 to 28 July 2021.

As sick notes continued, the Worker was paid in accordance with the Organisations sick leave policy.

On February 10, 2021, the Worker sent a letter requesting access to the SPAWS scheme.

“ ….. therefore, I am now requesting support from my employer in the form of access to the assault at work scheme …. “

On March 4, 2021, the Residential Unit Manager responded

“ …. I have consulted HR and reviewed your occupational health report. I note that the occupational health review dated 22 December 2020 concluded that “no lasting physical injury has occurred on this occasion “

The worker was approved for the scheme retrospectively from November 23, 2020, to December 21, 2020, but was deemed not to have met the criteria for any absence related to this incident following the OHD review. This was subsequently extended to 10 February 2021 to reflect the outer time limit where “physical injuries were present “

The Employer contended that no physical injury or serious physical injury was recorded on the certificates produced by the Workers Medical Doctor

The Worker was invited to complete section 1 of the “relevant application form, HR 108

The Employer contended that the Case referred to by the Union did not provide sufficient detail of uniformity with the instant case.

Instead, the Employer relied on the comments of Judge Mc Mahon in Mc Carthy v The Irish Prison Service, MJELR [2009] IEHC 311 when he stated:

“The Personnel Officers focus was on whether the length of absence of 52 days resulted from such a slight incident. The personnel officer decided it did not and she came to that decision having considered the medical evidence before her “

The Employer maintained that the Worker was treated fairly, and he was unable to satisfy the criteria for SPAWS beyond 10 February 2021.

The Employer contended that the Public Body was not in a position to extend the scheme in this case. No medical evidence was submitted to overturn this decision during the activation of the grievance procedure

In conducting my investigation, I have considered all relevant submissions presented to me by the parties.

I have taken some time to consider the occurrences in this case.

Both Parties have accepted that an assault at work occurred on 15 November 2020. The Parties are not at one on the enduring nature or otherwise in relation to this assault.

The Parties assured me that no Personal Injuries case was in being and the dispute centred on the application of the provisions of the Serious Assault at Work Scheme.

There is a seismic difference in how both parties have interpreted the application of the scheme in this case. This caused me to reflect further and delve into the submitted terms of the scheme. I was taken aback by this divergence of views on a scheme committed to the Employers Policy Booklet.

As already stated, I had some unease when I did not receive the “alpha “document in the case, that of the HR 108 form application for the scheme. Instead, I am met by the “omega “decision from the Employer, that the terms of the scheme are not applicable beyond February 10, 2021.

Therein lies the central conflict in the case.

The Worker has yet to file for his medical expenses which have been canvassed by the Employer and not time limited.

I would have much preferred to review HR 108 and I am disappointed by its omission by either side from the case dossier.

I accept that a discretion exists in relation to decision making, however HR 108 would have given me a window into the claim. The discretion cannot be unfettered and should have a trail of transparency and accountability associated with it. The SPAW scheme is a very generous and supportive scheme, and I was not happy with how either party interfaced with the scheme in this case.

I was struck by the Workers reported earlier and historical application of the scheme without incident. This occurred when he was subject to a fractured leg in the course of an assault at work in 2011. At that time, he told me he made a verbal application for the scheme, and he received the benefit of the scheme for 6 months. This was not disputed by the Employer.

I was equally struck by the delay in the Workers application for the scheme, which was initiated in February 2021, some 10 weeks post the undisputed occurrence of assault. By then the application was couched in a declaration of disappointment in the service and this was an unwelcome distraction from a purely financial support package, in my opinion.

This delay goes to the root of the dispute in this case.

The Worker told the hearing that when he rang in to notify of his sick leave on 23 November 2020, he referred to SPAW scheme and was informed that the request would be submitted

The Employer had no record of this and clearly did not act on this. I had some doubts on the Workers version of these events   as it was not reflected in the follow up letter lodged by the Worker, dated February 10, 2021.Neither did it feature during the grievance procedure.

I found that the approach adopted by the Employer was at variance with  Section 4.2 of the Responsibilities of Line Manager

“….to refer employees who are applying for one of the long-term absence benefit schemes to occupational health for a medical assessment in accordance with the Managing Attendance Policy and Procedure

To review applications for payment under the Long-Term Absence Benefit schemes, assess against criteria and to forward, with relevant reports, to the Senior Manager for recommendation. “

My attention was then drawn to Section 5.2 procedural framework for SPAW Scheme.

“In order to access the scheme, HR form 108 must be completed by the employee and his line manager and submitted in a timely manner. In some instances, due to the nature of the assault, the employee may not be in a position to assist with the application. In such cases, the completion of the form will be undertaken by the line manager to minimise delays “

I have found that the Employer did invite the Worker to complete the HR 108, albeit on the “cart before the horse “sanction of the scheme November to December 2020 contained in a letter dated 4 March 2021.

I have found that the mutual delay by both Worker and Employer in actioning HR 108 has contributed significantly to the residual nature of this dispute. This application should have been initiated by either party consistent with the November 23 exit from work.

I am satisfied that the Worker was invited to apply for the scheme on HR 108 and from the absence of a completed HR 108 from my dossier, I must conclude that he failed to complete the form, as requested.

This brings me to consider the Employers argument on the temporal limitations around the manifestation of physical illness attributed to the Physical assault on 15 November 2020

The Union has argued that the protection of the serious physical assault of work scheme was unduly fragmented and disturbed in this case. That the duty of care owed to the worker was denied when inadequate supports were directed towards him in the wake of the assault. The Union said supports should have happened automatically.

The Union argued that the Prison service case was not anomalous as the worker was governed by different rules and the Union held steadfast to the anomalous circumstances in Adjudication Recommendation of 2019.

The Union contended that the Employer had not sought medical evidence of Physical Injury.

The Employer argued that the decision to fragment the application of the SPAWS and apply the only default scheme of normal sick pay came about as the Worker had not manifested physical injuries after a certain date of December 2020.They contended that this was endorsed by Occupational Health Review.

I have reflected on this viewpoint which was submitted in good faith at hearing.

I found that the retrospective application of the terms of the SPAWS became fertile ground for other retrospective analysis.

By February 2021, the Worker had developed a reoccurrence of PTSD as predicted by his Occupational Health Department. By then, he was clearly carrying some anger against the Employer on which he anchored his claim for SPAWS.

By February 2021, the Employer had created some distance from the date of assault and had not processed a timely application for access to the scheme of SPAWS. The Complainant was absent on sick leave.

I read the SPAWS scheme carefully and I have found shortcomings on behalf of both parties but if I return to the function of the scheme as described by the Parties

Employees who are absent from work as a result of a serious physical assault in the course of their duty

It is a stepped compensatory payment scheme with provision for special extensions and up to and including application of article 109 (pension scheme) for an unlimited period.

I could not establish any reference to having to maintain a presiding physical illness during this time. In this, I have found that the Employer made an error in their decision.

I am satisfied that the Worker was subject to a number of serious physical assaults at work on 15 November 2020.

I am not able to apply the Recommendation in the 2019 Adjudication Report as the outcome was red circled and contingent on another third party.

I am also not able to apply the findings in the application for Judicial Review as this is an Industrial Relations case and I am bound to explore the parameters of the SPAW scheme particular to this employment.

There seemed to be some doubt at hearing that a different scheme applied to Nurses, but I noted that HR 108 seemed to have universal application.

A regrettable administrative delay followed between November 23, 2020, and February 10, 2021, when application for SPAWS should have been initiated by either or both parties in a timely manner in accordance with the corresponding procedural framework.

I have found that the Employer was misguided to fetter access to the scheme in the manner they did. I found that they applied an overly nuanced interpretation of the schemes provisions that simply were not there. I could not identify that payment of the terms of the scheme demanded the high bar of enduring physical illness imposed by the Employer in this case.

It is not unusual that trauma of any kind prompts an uncertain and often unforeseeable consequence of dual diagnosis on the road to rehabilitation and recovery. This was reflected in the copies of medical certs exhibited.

I have also found that a retrospective application of the terms of the scheme were far from ideal. However, I appreciate that the Employer sought the workers input in HR 108 that was simply not forthcoming.

While, I have reservations that both parties defaulted from the core function of this purely financial support scheme, I must conclude that it was both unfair and unreasonable to withhold the comprehensive and protective terms of the Serious Physical Assault at Work Scheme in the manner practised. The Partisan application of the scheme fell short of the spirit  and function of the scheme.

I have found merit in this dispute.

Claim for Serious Physical Assault at Work Scheme