Worker

Employer

Anonymised Parties

A Worker

A Health Service Provider

Representatives

Aine Feeney SIPTU Workers Rights Centre

 Ms. Karen Cohen, HR Manager

Act

Dispute Reference No.

Date of Receipt

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

ADJ-00033618

31/05/2021

The complainant is employed as a multitask attendant with the respondent. She stated that she sustained a serious injury at work arising from an assault by a resident .Her application for payment via the Serious Physical Assault Scheme was rejected .The complainant contended in her complaint form that “ the servants and agents of my employer have refused to approve payment for me under the Scheme as they are seeking to assert contributory negligence when the matter of my personal injury claim is being disposed of”. The respondent contended that they have observed their own procedures in processing the claimants application – the claim was rejected on foot of the terms of the scheme and they believe there is no case to answer.

1.               INTRODUCTION

1.1            The case before you today has been referred on behalf of SIPTU member Ms.A  (hereinafter referred to as the Complainant) and relates to the failure of her employer, , (hereinafter referred to as the Respondent), to follow their own procedure. The failure specifically relates to the incorrect application of the provisions of the Serious Physical Assault Scheme, as a result of which, the complainant has suffered financial loss and distress.

1.2            We are seeking that the Complainant would have the Scheme correctly applied and that she would be compensated for the stress which she suffered as a result of the failure of the Respondent to follow their own procedures and indeed due process. 

2.               BACKROUND

2.1            The complainant has been employed by the Respondent since the 7th February, 2005, initially in the role of Multi Task attendant and then in the role of Health Care Assistant and has been located at her current base for the duration of her employment. The facility is a high dependency unit with a mix of psychiatric and geriatric patients and usually has an occupancy of up to 30 patients. 

2.2            On the 19th October, 2020 the Complainant herein was assaulted, in the course of her duties at her place of employment, when she was struck to the right temporal lobe causing injury and immediately following the incident the complainant attended A & E and thereafter she commenced on sick leave.

2.3            In November, 2020, while on sick leave the Complainant was advised by her Union official that she was entitled to access to the Serious Assault Scheme as a result of the events of the 19th October, 2020 and the Official contacted the HR Manager in relation to the matter, as a result of which the complainant met with her Director of Nursing on or about the 30th November, 2020. Thereafter the Official contacted the HR department who advised on the 9th December, 2020 they had spoken with the OPS Manager and the General Manager and sought a speedy conclusion to the eligibility check for the respondent’s Serious Physical Assault Scheme, 2020. No progress was made with regard to the advance of an application under the Scheme.

2.4            On the 19th January, 2021 the complainant herein activated the Grievance procedure[1] of the Respondent as a result of the Respondent reducing her rate of pay to half pay on the 22nd November, 2020 and no progress having been made with regard to applicability of the Scheme in the circumstances.  This was acknowledged by the Director of Nursing on the 22nd January, 2021

2.5            A Stage 1 Hearing was convened on the 27th January, 2021, at which the Complainant was represented by the SIPTU Shop Steward. In the course of the meeting the Director of Nursing noted that she was in fact unaware of the Serious Physical Assault Scheme but having heard the submissions advanced she agreed that the Complainant fell within the criteria.

2.6            Under cover of correspondence of the 8th February, 2021 the complainant was advised that she had exhausted her Sick Leave entitlement and the HR application forms for the Serious Physical Assault Scheme were furnished to the complainant. The complainant completed the application form and returned same under cover of correspondence of the 10th February, 2021.

2.7            On the 15th February, 2021 a Stage 2 Grievance Hearing was conducted and the Outcome issued under cover of correspondence of the 18th February, 2021. No vouching documentation was provided, despite the fact that the Decision maker indicated in the correspondence that a full review was conducted of all of the documentation pertaining to the application, contrary to the Respondents own procedures. No opportunity was provided to the complainant herein to address any of the issues raised and enumerated 1-13 in the correspondence, clearly contrary to due process and fair procedure.

2.8            The Outcome was appealed under cover of correspondence of the 25th February, 2021 and an Appeal Hearing at Stage 3 was conducted on the 8th March, 2021. There was a dispute in relation to the minutes of the meeting and under cover of correspondence of the 14th March, 2021 the Shop Steward corresponded with the HR manager outlining the discrepancies.

2.9            The Stage 3 outcome issued on the 15th March, 2021 and one of the Recommendations was “The application is given due consideration and that the HR 108 completed in February be progressed to the final decision maker for review. Please note that following discussions between HR and Ms. B, this has already been actioned.” On the 25th March, 2021 the Director of Nursing confirmed that the Serious Physical Assault application was refused on the basis that “the incident that occurred was not without your own default”.

2.10         It is clear that the Respondent and in particular the agent of the respondent being the Director of Nursing who made the final decision on the 25th March 2021 did so contrary to the Respondents own procedure and we submit in order to attribute contributary negligence to the Complainant herein, in order to defend any potential Personal Injury Claim which the Complainant herein might seek to pursue within the Statutory period.

2.11         The case was referred to the Workplace Relations Commission on the 31st May, 2021 in accordance with the provisions of the RESPONDENT Grievance procedure.

UNION ARGUMENTS

2.12         Adjudicator we contend that the foregoing is unacceptable behaviour from an Employer of the size and import as the Respondent. Further we contend that the Respondent has available to it resources far in excess of many employers with regard to Policies on which it can rely and indeed with regard to Personnel who could be charged to process matters and deal with same, in the interests of the Workers it employs, independently, efficiently and without bias.

2.13         The Terms and Conditions Guidelines of the respondent set out the circumstances for the Serious Physical Assault Scheme and state “Payment is conditional on the assault occurring in the actual discharge of the employees duties, without his / her own default and by some injury attributable solely to the nature of her duty”. In this case the Respondent has sought to rely on without his / her own default, however, no evidence was provided in the course of the Grievance procedure from which this outcome can be adduced. This decision was arrived at, only after the Complainant was forced to pursue the matter through the Grievance Procedure. Further in circumstances where such an outcome was reached, the basis of same should have been put to the Complainant herein, in order to afford her due process to challenge the assertion. This failure to afford the Complainant access to natural justice has significantly prejudiced the complainant’s position and at a time which she was recovering from a serious assault in the workplace, she was subjected to the additional stresses of the uncertainty with regard to her income and her ability to maintain her family.

2.14         The Long Term Absence Benefit Scheme Guidelines of the Respondent set out the provisions of the Injury Grant Scheme and the Serious Physical Assault scheme which we submit should have been made available to the Complainant herein. In the circumstances of application of the Serious Physical Assault scheme, application of same does not affect the employees entitlement under the sick pay scheme and had the scheme been applied in this case, the complainant herein would not alone not have exhausted her sick pay entitlement, she would not have suffered significant financial hardship as a result of the failures of the respondent herein. Responsibility for the implementation of the scheme falls in the first instance to the Line Manager, as set out at 4.2 of the Guidelines and it is clear in this case that not alone did the Line Manager fail in her duties but she failed to carry out the requirements as set out, to the detriment of the complainant herein. We would specifically refer to the duty “In the event of an occupational injury or serious physical assault to investigate the incident and complete the incident report form” No evidence of this has been provided since the date of the assault and in fact same was not provided in the course of the investigation of the Grievance on the matter. Further it should be noted that it is the duty of Human Resources “to convey decisions in relation to applications……to employees” and in this case the Respondent only complied with same following the instigation of a Grievance, which said actions are clearly contrary to their own policy and procedures. In addition, the responsibility is to “ensure that employees are made aware of the schemes and are given appropriate information on them”. Again this clearly did not occur in this case, contrary to the procedures of the Respondent. In fact Human Resources in their outcome correspondence on the Grievance insinuated that the obligation rested with the Complainant herein.

2.15         In the Case of A Worker and the RESPONDENT ADJ- 00018898[2]the Labour Court noted that the case “arises from a breach by the employer of their own policy”, as we would submit is the position in the within case. In particular the Respondent failed to comply with the terms of its own procedures to the detriment of the complainant.

2.16         In the Case of the RESPONDENT  and A Worker CD/13/298  the worker having been forced to refer the matter Under Section 20 of the Act, the Court noted that the Scheme states “if deemed eligible the line manager must complete the form and submit it to the relevant senior manager, along with copies of the incident report form, occupational health and other relevant reports, witness statements etc for a recommendation”. In that case the Court recommended that a reassessment should be carried out as expeditiously as possible with a view to resolving the matter in dispute. We submit that a similar situation pertains in this case as it is clear not alone that the line manager did not complete the form at the relevant time, but there is no evidence provided in the course of the application or throughout the Grievance procedure, that copies of the incident report form, occupational health and other relevant reports, witness statements, were gathered or considered in the course of the matter, again clearly contrary to the Respondents own procedure.

COMPENSATION

2.17         In the Case of A Worker and the RESPONDENT ADJ- 00018898 the Labour Court found that the “Employer could offer no justification for the breach of their own policy other than it was a regular occurrence”, as we would submit is the position in the within case. In that case the Court awarded compensation of €15,000.

2.18         In the Case of A Nurse Manager and A Hospital ADJ-00013782 the Adjudication Officer stated “I believe that it is a shocking indictment of the Respondent that such complaints are dealt with in such a haphazard and laborious manner” and went on to recommend that the complaint be addressed and further awarded the Complainant Compensation in the sum of €5,000 for the unreasonable delay in processing the complaint.

It is clear that the manner of the handling of the within procedure falls into the realm of haphazard and laborious, and the actions of the Respondent forced the Complainant to pursue the matter through the Grievance procedure, adding to the distress which she was already experiencing. 

3.               CONCLUSION

3.1            The Complainant herein is a longstanding and respected member of staff of the Respondent and had in the course of 17 years of employment gained the respect of Management, Colleagues and patients. Having sustained a serious injury in the course of her duties she was subjected to processes which had scant disregard to due process and fair procedure, and more worryingly complete disregard with regard to the terms of the Respondent’s own procedures.

3.2            We are therefore seeking that the Respondent would immediately carry out a full review of the application under the Serious Assault Scheme, and or immediately provide the complainant with her entitlements under the scheme.

3.3            We are seeking that all management would obtain training on their own policies and specifically with regard to the handling of the implementation and applicability of Serious Physical Assault Scheme/ Injury at Work Allowance.

3.4            Finally, we are seeking compensation for the Complainant herein, for the distress that this entire matter has caused and continues to cause her. This is as a direct result of the failure of the Respondent to follow its own procedures, and for the repeated breach of its own policies.

We thank you for your time and attention and look forward to a favourable decision.

1.              Introduction

1.1            The Complainant commenced employment with the respondent in the role of Attendant, Grade Code 4152 on 7th September 2005 and further commenced in the position of Health Care Assistant, Grade Code 6075 on 18th August 2015.  Currently employed as 1WTE (39 hours), 5 days over 7 days and remunerated at €37,600 per annum on the maximum point of the HCA RESPONDENT pay scale.  The role is located in a West of Ireland Nursing Unit  and the complainant reports to Clinical Nurse Manager II.

1.2            The Complaint that has been submitted to the WRC under Section 13 of the Industrial Relations Act 1969 refers to a management decision not to award Serious Physical Assault payment following an incident on 19th October 2020.

1.3            The Complainant has a current injuries claim in respect to same incident/injury and the respondent have provided loss of earnings information.

2.        Background

2.1         The complainant submitted a report on 19th October 2020 that claimed that on that same day at approximately 11.15am, whilst providing personal care to a service user (which for the purposes of this submission will be known as Service User A) an injury was sustained. 

2.2         The complainant was in a shower room with a fellow Heath Care Assistant (HCA) for the purpose of providing personal care to Service User A when the incident took place.

2.3         The complainant reported the incident in the afternoon of 19th October 2020 and an incident report form was completed as reported.  The fellow HCA who had been present with the complainant at the time of the incident indicated as submission to that report that the incident may have happened due to the approach of the complainant.  The GP report of 19th October 2020 stated that the complaint had suffered concussion.

2.4         Service User A has a condition that presents with challenging behaviour and in response management had taken several steps to manage:

               2.4.1      A risk assessment was completed on 1st July 2020 in relation to Service User A which identified ‘a dislike to being bathed’ and the existing and additional control measures that were required.  The assessment identified that staff spend time to explain to Service User A what is happening in a low and calming voice and to step back if resident becomes frustrated with staff’s interventions.

               2.4.2      An Antecedent-Behaviour-Consequence Log (ABC Log) was in place to record and monitor responses of the service user depending on descriptors of the environment.

               2.4.3      Staff meetings regularly included discussion in relation to challenging behaviour.  Prior to the incident reported, a staff meeting was held on 17th September 2020.  The minutes (Appendix V) of that meeting record that:

·        Advice and information sessions had been shared by a Senior OT in regard to managing interactions with residents with challenging behaviour

·        Involved activity therapist who were SONAS trained.

·        Service User A was discussed and staff were informed verbally and through the allocations diary that that a nurse and an attendant would be involved in personal care such as hygiene.  The complainant was in attendance at that meeting. 

·        The allocations diary on 19th October 2020 identified who the staff nurse and health care assistant were to assist Service User A on that day.  The complainant was not identified in the allocations diary to assist Service User A on 19th October 2020.

·        Further training was to be scheduled post COVID restrictions.

2.4.4      On 17th September 2020, following the staff meeting, notes were added to the care plan of Service User A that it was preferred to have a nurse to assist /supervise personal care. The complainant is included in the attendance at this meeting.

2.5         The complainant had completed relevant training in various skills which included manual handling and people moving, safeguarding vulnerable persons, health service skills.

2.6         In addition, as set out in the RESPONDENT Safety Statement and  in accordance with Section 13 of the Safety, Health and Welfare at Work Act, 2005 all employees have a responsibility for their own occupational safety, health and welfare and that of others in the workplace.

2.7         On the day of the incident, 19th October 2020, staffing ratios were adequate for the number of services users, including at least one nurse and one nurse manager.  There is no evidence to suggest that any nurse was asked to assist or supervise the personal care of Service User A.

2.8         The complainant was certified by a GP for 7 days from 19th – 25th October 2020 with concussion, and remains certified as unfit for work.  RESPONDENT sickness absence was implemented and payment issued accordingly.

2.9         The limits for RESPONDENT ordinary sick pay is 92 calendar days full pay and 91 calendar days half pay, subject to maximum 183 calendar days in a rolling 4 year period.  The complainant was notified that from the effective date of 21st November 2020, the sickness payment was to reduce to half pay (the complainant had previous sickness absence that year of 60 days).  SIPTU representatives queried notification of the Serious Physical Assault scheme with HR in November 2020 and was advised to discuss with the Director of Nursing in the first instance. 

               The complainant was notified on 8th February 2021 and again on 16th February 2021 that sickness payment expired on 7th February 2021.

2.10       The complainant subsequently submitted a HR108 claim for the Serious Physical Assault payment (SPA) 3 months post incident and dated 10th February 2021.

               The claim was considered by the DoN and the HR108 was signed by Director of Nursing on 12th February 2021 and forwarded to General Manager.

The claim was considered by the General Manager.  In accordance with the RESPONDENT Long Term Benefits Schemes Guidelines, the RESPONDENT  Serious Physical Assault payment provides for payment to the support the employee for 3 months and is conditional on the assault occurring in the actual discharge of the employees duties without his/her own default. 

A detailed review of the claim was undertaken by the General Manager and findings were as detailed in Sections 2.4, 2.5 and 2.6 above. 

Despite communications and documentation in regard to Service User A, the complainant did not follow the control actions of the risk assessment, disregarded the advice given during the staff meeting of 17th September 2020, failed to adhere the care plan and did not act in accordance with the allocation diary of the 19th October 2020. 

The actions of the complainant demonstrated no regard for any control measures that were in place to protect both Service User A and employees.  The incident was, therefore, not without default of the complainant.  The HR108 was completed by the General Manager as not approved as injury was by default of staff member, signed on 11th March 2021 and returned to the complainant (Appendix IX)

2.11       The complainant invoked the respondent’s Grievance Procedure in writing on 19th January 2021  before the Serious Physical Assault application was submitted. The complainant claimed that there was a failure to pay ‘entitlements under the assault scheme’ and that the Director of Nursing had further ‘proceeded to reduce pay to half pay in November 2020’. The grievance also stated that the complainant had been referred to Occupational Health but that the consultation had not taken place. The grievance was heard in accordance with the respondent’s Grievance Procedure May 2004  as follows:

               2.10.1    Stage One – Heard by Manager on 27th January 2021.  The grievance primarily related to the non-implementation of the Serious Physical Assault Scheme.  Manager notes indicate that during discussion the meeting had been adjourned abruptly by SIPTU union representative.  SIPTU had produced notes from the same meeting and the manager reports to General Manager that the notes did not accurately depict the conversation.

               2.10.2    Stage Two – Heard by General Manager on 15th February 2021. The grievance was not upheld.  It was found that the complainant suffered an assault whilst discharging duties of employment, that the RESPONDENT had taken all reasonable steps to protect the health and safety of staff but that the complaint had acted outside of the care plan, without due consideration to Health and Safety requirement and was not without default and therefore not eligible for SPA payment under the RESPONDENT  scheme .

               2.10.3   Stage Three – Heard by Human Resource Manager on 8th March 2021.  The grievance was not upheld.  It was found that the SPA application was not processed to a final decision maker to review the application according to the respondent’s Managing Attendance and the Long Term Absence Benefit Schemes.  The outcome of the Stage 3 recommended that should happen as a deciding factor

2.12       The SPA application was reviewed by Head of HR as final decision maker.

The documentation considered by the General Manager and the outcome of the SPA application was considered.  Based on the requirements of the Long-Term Illness Scheme Guidelines, the final decision maker found that the incident that occurred was not without default of the complainant ad therefore did not meet the eligibility required. 

The decision to refuse the application, made by the General Manager, was upheld.

The outcome was issued by the final decision maker on 22nd March 2021 and was shared with the complainant by the Director of Nursing on 25th March 2022. 

2.13       The employee submitted a claim for Temporary Rehabilitation Remuneration (TRR) which is available to eligible employees following expiration of sickness absence benefit.  Payment was made retrospectively from 7th February 2021 and continues to date.

2.14       Occupational Health and Employee Assistance programme was made available to the complainant throughout the process.

3.        Conclusion

3.1         An injury was sustained by the complainant on 19th October 2020 whilst discharging the duty of the Health Care Assistant role.

3.2.        Measures which included risk assessment, detailed advice and discussion relating to Service User A, allocation diaries, ABC log, and care plan for Service User A were made available to all employees.  The complainant had received the respondent’s training in skill relating to the elderly and had benefited from advice from a Senior OT in relation to Service User A.  The respondent believes that reasonable employer actions were taken to protect the Health and Safety of Service User A and employees. 

3.3         The staffing available on duty the 19th October 2020 provided a high ratio for the number of service users and included a nurse and nurse manager.  The allocation diary did not identify the complainant on 19th October to assist Service User A.

3.4         The Incident report demonstrates that the complainant did not seek the assistance / supervision of a nurse and that control measures were disregarded.  The complainant failed in their responsibility for own Health and Safety and that of others. 

3.5         The RESPONDENT grievance process was carried out in a timely manner and the complainant’s grievance was not upheld.

3.6         The Serious Physical Assault Scheme application HR108 was processed upon receipt.  It was concluded that the complainant was not without default and therefore was not eligible for payment in accordance with the respondent’s Long Term Illness Scheme Guidelines.

3.7         The compliant was afforded the respondent ‘s Sickness Payment scheme and subsequently the TRR Scheme.

3.8         The complainant has a current injury claim in relation to injuries sustained on 19th October 2022 which is being managed by the State Claims Agency.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties. I note that from the outset the parties have been at odds with respect to the processing of the complainant’s application for payment under the Serious Physical Assault Scheme. A breakdown in trust appears to have emerged early in the process when agreement could not be reached on either the status or the minutes of the initial meeting .While the respondent has suggested that there was an onus not just on the respondent but also the complainant to initiate her complaint I am satisfied that the respondents own documentation of the 4th.Jan 2002 provides that “Every effort should be made to ensure that all line managers  are familiar with the Scheme and that it is operated in a consistent and transparent fashion”. It further provides that the Scheme will be initiated on foot of a report of the assault compiled by the Ward manager. Based on the submissions made and the contributions of the parties I am satisfied that the respondent was in breach of their own procedures in this regard and I accept the union’s contention that primary responsibility for initiating an application under the Scheme rests with the respondent.

The following negative finding was issued by the respondent when it appears some kind of adhoc paper-based investigation was undertaken.

“Despite communications and documentation in regard to Service User A, the complainant did not follow the control actions of the risk assessment, disregarded the advice given during the staff meeting of 17th September 2020, failed to adhere the care plan and did not act in accordance with the allocation diary of the 19th October 2020”.

It has not been disputed by the respondent that the complainant was never afforded an opportunity to challenge the basis upon which these conclusions were drawn. The first occasion the complainant was made aware that her colleague indicated the incident may have occurred as a result of   the complainant ‘s behaviour on the day was at the first hearing of the matter before the WRC. Additionally, the complainant was denied any opportunity to challenge the findings of Ms. B with respect to Health & Safety practise & Procedures applied by her on the day of the incident.  This was unfair to the claimant as it failed to afford her the basic tenets of natural justice by not affording her an opportunity to challenge the evidence before a detrimental finding was arrived at.