ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969

Investigation Recommendation Reference:  ADJ-00036896

Parties:

Dispute:

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Date of Hearing:  08/09/2022

Procedure:

This dispute was referred to the Workplace Relations Commission (hereinafter ‘WRC’) pursuant to Section 13 of the Industrial Relations Act 1969 on 12th January 2022.  There was no objection by the Employer to an Adjudication Officer investigating this dispute.  Following delegation to me by the Director, I inquired into this dispute and gave the Parties an opportunity to be heard and to present any relevant evidence.  I held a face-to-face hearing at Lansdowne House on 8th September 2022. The Worker was represented by SIPTU and the Employer was represented by IBEC and a number of witnesses were in attendance.  Comprehensive written submissions and supporting documentation was received from both Parties.  Section 13(8) of the Act provides that hearings shall be held in private and accordingly, I direct that any information that might identify the Parties within this recommendation should not be published.

Background:

The Worker sought payment of 100 percent of his basic wages under the Employer’s Occupational Injury Scheme in respect of a month’s absence from work owing to a surgical procedure to remove thrombosed haemorrhoids, the cause of which he partially attributes to his job as a bus driver.  He had been paid 70 percent of his basic wages for this period under the Employer’s Sick Pay Scheme but had not received 100 percent because he had previously been paid under the same Scheme within the last twelve months.  The Employer had declined payment on the basis that there was no evidence that the Worker’s condition directly arose from his employment.  It further contended that the Scheme was discretionary, that it was entitled to monitor same and any recommendation to the contrary would alter the terms of the Scheme.

Summary of Worker’s Case:

The Worker commenced work for the Employer in 2005 as a bus driver.  His duties involve driving buses along designated routes within a City as determined by management.  The Worker works predominately early and late shifts.  His gross weekly earnings vary between €600-700.  During working hours, if there is any need for a bus driver to use a restroom, this must be communicated to the designated control for approval and confirmation must be received before the bus driver can avail of a restroom.  In instances where there is none readily available, the bus driver is left to look for one or find a private location. 

The Employer operates a collectively agreed Welfare Scheme comprising of a Sick Pay Scheme and an Occupational Injury Scheme.  Under the Sick Pay Scheme, employees’ basic wages are paid whilst on sick leave regardless of the reason on a sliding scale after deduction of any social welfare received as follows:

100% of basic weekly wage for the first four weeks of sickness (after any social welfare payment)

70% of basic weekly wage for the next eight weeks of sickness (after any social welfare payment)

60% of basic weekly wage for the next fourteen weeks of sickness (after any social welfare payment)

This Scheme provides for a maximum period of 26 weeks payment within each twelve month period.  Once an employee has exhausted 26 weeks of paid leave, upon returning to work they must wait for six months and one day before their entitlement to sick pay is reinstated.  The Occupational Welfare Scheme operates with the same sliding scale but does not require a waiting period before full reinstatement as follows: “In cases where an employee is incapacitated from attending for duty as a result of an injury received in the course of their employment, or while commuting to or from work (and is in receipt of an occupational injury-related social welfare payment), the scheme will treat this as the commencement of a new illness and benefit will commence at the 100% rate.  The payment in this case is limited to 26 weeks from the date of the accident and any subsequent illness arising from that accident will be treated as ordinary illness.”

In June 2021, the Worker underwent a surgical procedure to remove thrombosed haemorrhoids.  After a successful procedure, the Worker was absent from work from 20th July 2021 until 21st August 2021 to allow for recuperation.  Two sick certificates stating “Post Op” were submitted to the Employer for this period.  The Worker also applied to be covered by the Occupational Injury Scheme using the Employer’s ‘Investigation of Industrial Accident Form’.  In response to the question: “Where did the accident occur?”, “N/A” was inputted.  Under the question “Describe what happened?”, the reply was “Haemorrhoids from sitting for long periods of time” and under the heading “What Injuries were sustained?”, the reply was “…sustained sweating causing anal haemorrhoids - had surgery at a week’s notice”. The Depot Administrator had written to the Worker to advise that his absence would not be treated as an occupational injury on the following basis: “In order to be granted occupational injury, the illness/injury you sustained must be as a direct result of injury because of your work.  You stated to me that the reason you required surgery was due to sustained sweating which resulted in anal haemorrhoids.  It is not possible to prove that bus driving is the cause of your condition, and as a result this absence will not be treated as occupational injury.  Your absence will be recorded as ordinary illness and normal sickness benefit will apply.”  On 17th September 2021, SIPTU lodged an appeal on behalf of the Worker on the basis that he had undergone a surgical procedure for a work-related illness and his GP had informed him that he had developed anal haemorrhoids as a result of driving.  On 24th September 2021, a HR Manager wrote to the Union expressing sympathy at the pain and discomfort suffered by the Worker but upholding the decision stating: “There are many causes to someone suffering with haemorrhoids these can be caused by being overweight, chronic constipation, sitting on the toilet for a long time, lack of fibre in a person’s diet, this list is not exhaustive.  In fact, of all the medical documentation I have reviewed in relation to anal haemorrhoids there is no mention of a person developing haemorrhoids while driving a bus or any other vehicle.” 

At that stage, a letter from the Worker’s GP dated 28th September 2021 was submitted to the Employer on his behalf stating: ”He has had ongoing issues with recurrent prolapsed thrombosed haemorrhoids over the past 4 to 5 years.  Most recently in August 2021, he had a significant haemorrhoidectomy done again.  He drives buses for a living and due to the irregular times on the buses and sitting down all day, and unable to go to the toilet when he needs to.  So, I would feel that is partially occupational issues we have here, and I hope this will be taken into account.”  Although it was accepted that the onus rested with an employee to provide medical evidence of an occupational injury, it was submitted that the refusal of the Scheme to the Worker without referring him to the Company Doctor for a second opinion was flawed and contrary to natural justice.  The only expert opinion available to both Parties was the Worker’s GP’s letter and as the Employer had not requested an opinion from its own Doctor, management were not qualified to refute the GP’s opinion.  Information from the Internet listing ‘prolonged sitting’ as one of a number of factors leading to thrombosed haemorrhoids was submitted in support of the Worker’s contention that his condition was partially acquired in the workplace.  It was submitted that the refusal by the Employer to pay the Worker under the Occupational Injury Scheme was a clear breach of its duty of care to the Worker.  Accordingly, a recommendation that payment under the Occupational Injury Scheme be made to the Worker was sought.

At the hearing, it was clarified that in fact the Worker had received payment of 70 percent of his basic wages (after deduction of Illness Benefit) under the Employer’s Sick Pay Scheme for the one month period of leave subject to this dispute.  He had not received 100 percent payment under that Scheme because he had already taken more than four weeks sick leave within the last twelve month period.  It was confirmed that this was primarily owing to Covid-19 related reasons.  It was also confirmed by the Employer that he had been on an attendance control programme in 2019.  His Representative accepted that had the Worker received 100 percent payment under the Sick Pay Scheme, this dispute would not have been pursued.

Summary of Employer’s Case:

By way of background and preliminary objection, it was submitted that the Employer operates a generous collectively agreed Welfare Scheme (as set out above).  The Scheme is discretionary and it is accepted custom and practice that there is no automatic entitlement to payment under the Scheme.  The process for considering an employee’s application for payment under the Occupational Injury Scheme entails an examination of the nature of their absence by the Employer.  The incident giving rise to injury, the injury and causation are all considered.  The Depot Administrator will then decide whether an application is granted or not.  This decision can be appealed to the Head of HR Services.  This process has always been the union accepted practice.  It was submitted that a recommendation from the WRC requiring a contrary procedure would alter the terms of the Scheme and its application to all employees who constitute “a body of workers” within the meaning of Section 13(2) of the Industrial Relations Act 1969 providing: “Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.”  Thus any alteration to the Scheme may only be done through a collective process.  In this respect, reliance was placed upon a recommendation of the WRC in ADJ-00034058 which also involved a dispute as to payment under an occupational sick pay scheme albeit with different facts.  The Adjudication Officer had concluded: “it is not an individual matter and has implications for the wider body of drivers.”

In relation to this specific dispute, the Respondent’s Representative outlined the background facts as outlined above which are not in issue.  The Depot Administrator was in attendance and confirmed that she had sought the opinion of the Company Doctor before arriving at her conclusion that it was not possible to prove that bus driving was the cause of the Worker’s condition.  It was accepted that the Employer had not referred the Worker to the Company Doctor for an opinion before making its decision.  It was submitted that the Employer has numerous employees driving the same bus without issue and that drivers’ seats are specifically designed for prolonged use.  Drivers are also afforded ample time to use bathroom facilities.  Where the Employer is informed that an employee has a medical condition, accommodations can be put in place as medically directed but none were sought in the instant case.  It has not been established that the Worker’s absence was as a direct result of an occupational injury.  The Occupational Injury Scheme exists as an additional benefit for employees where the Employer deems the circumstances of an injury to warrant same.  As such, there is no automatic entitlement to payment under the Scheme.  The Worker was paid in accordance with the Sick Pay Scheme as set out above.  In all the circumstances, there was no justification to pay the Worker under the Occupational Injury Scheme.  Additionally, the Sick Pay and Occupational Injury Schemes are very generous and the Employer is entitled to monitor them to ensure that they are applied in the appropriate instances and are not abused or misapplied.  The knock-on implications of providing payment for any employee in the Worker’s circumstances would not only change the manner in which the Scheme is operated but would also incur a high financial cost and curtail the Employer’s ability to manage employee absence.  Accordingly, it was urged that its decision would not be disturbed herein.

Conclusions:

I have carefully listened to and considered all of the evidence and submissions on behalf of both Parties to this dispute.  I note the Employer’s concern that a recommendation as advocated for on behalf of the Worker might have the consequence of interfering with a collectively agreed Welfare Scheme impacting on a body of workers.  However, I have considered the facts giving rise to this dispute as they pertain to the particular situation.  The Worker has sought 100 percent payment under the Employer’s Occupational Injury Scheme for a month’s absence from work owing to a surgical procedure to remove thrombosed haemorrhoids, the cause of which he partially attributes to his job as a bus driver.  This is in circumstances where he had received 70 percent of his basic wages for the period under the Employer’s Sick Pay Scheme (after deduction of Illness Benefit).  The shortfall arose owing to his taking prior leave within the last twelve month period.  It is not in issue that the Occupational Injury Scheme under which payment is sought arises from a collective agreement and operates on a discretionary basis.  It was also common case that the onus rests with the employee to provide medical evidence of the occupational injury.  On the Worker’s evidence, the cause of his condition comprised of a GP’s Report expressing a belief that his condition was partially related to his employment as a bus driver.  This is not an expert report and is less than definitive.  The information provided from the Internet is generic in nature and not specific to the Worker.  Given that on all accounts causation is multi-factorial, it is unlikely that an examination of the Worker by the Company Doctor could have furthered matters.  I therefore regard the decision by the Employer to decline his claim for payment under the Occupational Injury Scheme to be within its margin of discretion.  Overall and considering the Worker’s history, I am satisfied that he has been treated fairly by the Employer.

Recommendation:

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to this dispute.  For the aforesaid reasons, I recommend no further action or concession in relation to this dispute.

Dated:   20th October 2023.

Workplace Relations Commission Adjudication Officer:  Aideen Collard