Worker

Employer

Anonymised Parties

Driver

Bus Company

Representatives

Joseph Ateb Siptu Trade Union

Michael McGrath IBEC

Act

Dispute Reference No.

Date of Receipt

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

IR - SC - 00001064

31/01/2023

The dispute relates to a discretionary benefit under the Occupational Injury Benefit Scheme where an employee’s previous absence record is not considered to determine the % of benefit to be paid. In other words, the claimant would be treated as if he had no previous absence from work and commence on full benefit.

This dispute related to an incident where a passenger threw a can at the driver after refusing to pay the correct fare and demanding that he should be allowed to travel on the bus. The driver suffered soft tissue injury.

It is not in dispute that the incident happened.

The Company stated that the Driver should have had his screen up and that in turn this would have prevented any injury.

The Company also stated that from the cctv it did not appear that the can in fact hit the hand of the driver.

The injury sustained as detailed was minor.

The scheme provides for payment and as he was not treated as having an occupational injury, he lost about €700 as his prior absence was considered when determining the amount of benefit that he was due. The fact is the passenger had left the bus and then put his foot in the door allowing him to throw the can at the driver as the safety sensors on the door operated automatically.

 He couldn’t have anticipated what would occur. The protective screen can be up or down depending on whether the driver believes the situation to be safe or unsafe. Most drivers have the screen down in the first instance.

The claim was made in time after exhausting the internal procedures.

The scheme is discretionary. If it is determined that a rule must apply to this worker, that changes the nature and scope of the scheme, as it has been practice that a discretion to pay is a core part of maintaining this scheme.

It is not disputed that an incident occurred. It is not disputed that the Driver had a sick cert and was paid as normal. However, based on the circumstances of this scheme it was not deemed to be appropriate to apply the terms based of the Occupational Injury Scheme; however, the standard sick pay terms were applied.

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

I have no jurisdiction to hear this complaint if it related to a body of workers. The basis of hearing the complaint is based on fairness and does not in any way negate the right of management to exercise their discretion when deciding who should be benefit from the occupational injury benefit scheme.

The driver sustained a soft tissue injury from the incident.

In the heat of the moment and when attending to another passenger it is reasonable to accept the driver’s explanation that the didn’t anticipate the can being thrown at him.

The management have the right to decide if the scheme benefits should apply in this case and they had the right not to apply the terms.

Allowing for the particular facts of this case and that an incident did occur that did give rise to some lost time and earnings, I recommend separate to the scheme rules a payment amounting to €250 as a stand-alone and separate payment made without establishing any precedent whatsoever and is confidential to the parties. 

Injury-Sick Pay Scheme