Complainant

Respondent

Parties

Nan  Ni Fhátharta

An Garda Siochana Employee Relations Bureau

Representatives

Anna Rosa Raso ESA Consultants

 Paul Hardy HR

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00052905-002

21/09/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00055855-001

01/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00059825-002

06/11/2023

The Complainant submitted three complaints under the Payment of Wages Act 1991 claiming in effect that she was entitled to full payment of wages by application of Garda Code 11.37 and/or HQ Directive 139/2010. It is submitted that the 2014 Regulations on sick pay in An Garda Síochána are governed by the Code as supplemented and amended by the Directive. HQ Directive 139/10 is entitled Management of Sick Absence which contains sections referencing injury on duty and the requirements to investigate reports of being non effective for duty as a result of an injury on duty or work-related stress. The Complainant is absent from work on grounds of ill health since September 2020. On 22nd July 2022 the Complainant submitted a request to the Respondent that her absence from 10th September 2020 onwards be reviewed under the provisions of Code 11.37. Complaints were submitted to the WRC on 21st September 2022, 1st April 2023, and 6th November 2023. A final decision on the request of July 2022 was delivered by the Acting Executive Director Human Resources and People Development on 18th July 2024 and handed to the Complainant and her representative on the first day of the hearing of these complaints. That decision echoed an earlier report which recommended that Garda Code 11.37 should not issue for the absence of 10th September 2020 onwards and that it remains classified as ordinary illness. The Complainant is seeking a decision that her sick absences should be classified as an injury at work and that the wages and allowances which she received in the intervening period should be reclassified accordingly with the effect that any lesser payments than full pay with allowances be regarded as unlawful deductions for the purposes of the Act. At my request the parties were advised to provide detail, agreed where possible, on the estimation of deductions (or loss) related to the complaints. Details submitted in a supplementary submission taking into account a statement of salary loss certification from 2021 to 2024 issued by the Employer in July 2024 appear to suggest that the total loss or deductions for that period would be of the order of €84,368 in basic pay and a loss of €35,172 in allowances with a note for the Complainant that the estimation of losses is not based on the current salary scale.

The parties provided written and oral submissions in advance of the two dates for hearings together with additional written submissions as requested. All of the submissions provided have been considered in the preparation of this decision in the context of the relevant terms of the Payment of Wages Act 1991. There is an associated industrial relations dispute which requires a recommendation. It is of note that there have been other cases before the WRC under the Industrial Relations Act concerning the interpretation and application of the Code/circular and in all cases the parties have contended and disputed the application of a High Court judgment in April 2018, IEHC 244 of that year. That case was concerned with ‘practice and procedure – certiorari – judicial review – sick absence – 0.84.r.23(3) of the Rules of the Superior Courts – extension of time – s.11.37 of the XX Code’. This is the first decision which I am aware of under the Payment of Wages Act and however tempting it may be at times to make observations regarding the practices and procedures as applied on both sides including the extraordinarily limited efforts by both sides, to find a resolution to a situation where an employee has been absent for coming up to five years, the role of the WRC under the Payment of Wages Act 10991 is to determine whether or not the complaint succeeds by application of section 5 of the Payment of Wages Act 1991.

A brief summary of the historical  facts of the matter as they developed  between the Complainant and the Respondent is as follows:

 In March 2020 the Complainant commenced working from home due to a health condition and the risk to her health from Covid identified on medical advice. In August 2020 the local Superintendent commenced an engagement with the Complainant which would have involved her returning to duty in the workplace.

 On the 20th of August 2020 the CMO for the Respondent advised that the Complainant’s “medical circumstances do not fall into the category of extremely medical vulnerable groups required to cocoon… However, the information provided by her GP places her in the “at risk” group.” The advice to management was: “If remote working is still feasible for local management the supporting documents from her GP suggest this [home working] should continue and this is in line with the CMO’s instructions”.

On 3rd September 2020 the Superintendent informed the Complainant that based on operational needs he was unable to support continued home working “as an effective solution to your circumstances.” The Complainant was then directed to return to work on 10 September 2020. This was in line with a direction on 3rd September 2020.

 On 9th September 2020 there was a directive from HR to the Superintendent to reconsider the option proposed for the working arrangements for the Complainant and on 11th September 2020 a different proposal was issued.

However, on 10th September 2020, the date on which she was due to return to work, the Complainant was certified unfit for work with the GP certificates citing workplace stress. Reference is made to a difficult telephone conversation with the Superintendent on 3rd September 2020. Those discussions were described by the Complainant to relevant medical assessors as heated conversations. There was a related issue of concern or belief on the part of the Complainant that her personal medical details were shared inappropriately.

On July 22ND 2022, following a report from the CMO, the Complainant submitted a claim for the application of the injury on duty scheme.

The application or request to reclassify the illness as an injury at work was considered as a work-related stress absence in a report dated 23rd October 2022 where the Inspector in question concluded: “I believe I am not in a position to recommend a certificate in accordance with Code 11.37 as I believe that this should be based on medical evidence from qualified persons in this field.” A subsequent psychiatric report was provided with a final date of 21st November 2022. That report indicated: “I fail to see how she would be fit to return to workplace in the short to medium term.” A subsequent report of 29th December 2022 from the Respondent’s specialist occupational physician stated:

“Based on the available information, it is not unreasonable to conclude that but for the reported incident or reported occurrences in the course of the member’s work or duties August 2020 (sic) and the injuries apparently incurred or the medical condition apparently subsequently established, the medically certified basis for 10/09/2020 onwards would likely not have presented.”

And:

“Based on the available information, it is not unreasonable to conclude that a substantial causal association exists between the medical basis of the certified absence 10/09/2020 onwards and the established diagnosis/condition consequent to the reported occurrences or injuries apparently incurred in the course of the member’s work or duties August 2020.”

On 11th January 2023 a report was issued to the Head of HR Directorate by a member of the Directorate recommending that the absence of 10/09/2020 remain as ordinary illness stating:

“It would appear that XX work-related stress emanated from interpersonal difficulties the member encountered in her dealings with XX. A code in accordance with 11.37 is not recommended at this time.”

On 30th January 2023 the Head of the HR Directorate effectively copied the contents of the previous report of 11th January repeating: “At this juncture the absence from 10/09/2020 onwards should remain classified as ordinary illness”.

 The final decision in the matter was issued dated more than eighteen months later on 18th July 2024 by the Acting Executive Director of HR and People Development. That report concluded:

“Having considered all relevant information available to me at this time, I am recommending that a code 11.37 should not issue for the absence of 10th September 2020 onwards and that it remain as an ordinary illness.”

The scheme does not provide an appeal beyond this stage.

From the Complaint Form the Complainant has a medical condition that the employer is and has been fully aware of during the pandemic. The Complainant was subsequently forced into going onto ordinary sickness and off special leave with pay as a result of the direction in September 2020 that she return to the workplace. The Complainant was forced to report sick with work-related stress and she has been at a financial loss for over two and a half years due to the management failures and delays to resolve her application for a code 11.37. Further correspondence from the CMO’s office in December 2020 recommended Garda management engage with her and put in place measures prior to her return to work. Management have failed to engage at all and no efforts have been made to put measures in place so she can return to the workplace resulting in her remaining on forced sickness absence and without her full pay. The Complainant has been absent for an extensive period of time because of the employer’s failure to engage, investigate and implement reasonable accommodation for her which is contrary to what the CMO has advised. She has further suffered a severe loss of income since this issue began as she has been reduced to half pay and subsequently to temporary rehabilitation remuneration due to delays in investigating her work-related stress/code 11.37 and also a failure to engage with her on formulating a reasonable accommodation when advised to do so by the CMO. Since being forced to report unfit for duty the Complainant received full pay without allowances for 12 weeks followed by half pay without allowances for 3 months. After this 6-month period the Complainant has been placed on TRR which has reduced her basic pay significantly without payment of allowances or basic salary for this period of time. The Complainant should have been paid her most recent allowances plus basic salary on October 19th, 2023.

In respect of the direction to return to work on 3rd September 2020 the Complainant submitted that the Superintendent in question does not hold any medical qualification to the knowledge of the Complainant to make a determination that she did not meet the criteria for cocooning. This was contrary to the expert advice in failing to consider the CMO’s findings of August 2020. The instruction received was at best harmful and detrimental to the Complainant’s health and the suggestion that she could work in a locked office, only communicating (when necessary) with colleagues via a hatch (ordinarily used to communicate with prisoners in custody in the station) but also expected to deal with members of the public at the public counter for the duration of a 12 hour shift without mention of toilet or kitchen facilities, was unreasonable. The suggested working arrangement only heightened the concern for the Complainant’s welfare. Essentially the Complainant despite having a pre-existing respiratory condition was instructed to return to work and be in contact with people, an option which the Complainant felt unsafe to return to. No reason was provided as to why the role of the Complainant could not be facilitated through remote working.

Referring to the Respondent’s management of sickness absence:

“Where members report noneffective for duty as a result of an injury on duty or work-related stress, a thorough investigation shall be carried out immediately and the outcome reported to the Assistant Commissioner, H.R.M. for the attention of the CMO. The member concerned shall be advised of the Employee Assistance Service, Peer Support, and any other support deemed necessary. Local management shall address the issues causing the member stress”.

It is the position of the Complainant that the Respondent failed to conduct an investigation regarding her work-related stress. Management did indeed contact her on 23rd September 2020 regarding her stress but encouraged her not to proceed with an investigation. Reference is made to that part of the policy relating to ongoing contact throughout an absence and a long-term absence in particular and the Complainant maintains that the Respondent failed and continued to act contrary to their own Management of Sick Absence. No efforts have been made from the Respondent to engage and address the multitude of issues or to help facilitate a return to work. She has engaged fully with any and all instructions to attend medical assessments. The Respondent’s failure to follow the sick regulation policy – hampering and delaying the investigation, senior management ignoring the CMO advice in December 2020 to engage with her and address the work-related stress issues and to explore other feasible working arrangements and failing to contact her at all even in a welfare capacity have resulted in the delay and any possible return to work, further compounding financial strain and causing additional, avoidable, medical issues as a result of the work-related stress. The sick leave entitlements in An Garda Síochána are governed by the Public Services Management Sick Leave Regulations 2014 and their application is detailed in the An Garda Síochána Code supplemented by HQ Directive 139/2010. According to Volume 1, Chapter 11 of the Code members injured on duty may receive a Code 11.37 certificate entitling them to full pay while noneffective with no impact on their sick record. Under section 11.37 of the Code, a member’s non effectiveness due to injury necessitates immediate reporting to the Divisional Officer. Cases of extended non effectiveness are referred to the Assistant Commissioner, Human Resource Management. Local decisions on culpability are made by the Divisional Officer unless issues of wilful default or negligence arise, prompting referral to higher management. The Complainant lodged an application under Code 11.37 in July 2022 which was ignored until she emailed all departments reminding them of her application – the Respondent addressed the matter in October 2022. The purpose of the Code 11.37 was to establish whether her absence is classified as an injury on duty or ordinary illness. The Respondent on the 29th of December 2022 determined that her absence was not considered an injury on duty. This is disputed on the grounds that several medical reports confirm the cause of her work-related stress stems from her relationship with her line manager and therefore must not be deemed an ordinary illness. Furthermore, the Respondent failed to consider the supportive medical evidence and failed to refer the application to the Assistant Commissioner for consideration and determination. A named Inspector conducted an investigation report in December 2022, two years post the Complainant’s initial unfit for duty report, failing to adhere to HQ Directive. Recommendations made by the Inspector regarding workplace stress were affirmed and supported by medical evidence yet the Complainant’s subsequent 11.37 application was rejected by the Head of HR Directorate who had no authority to do so. Furthermore, the Complainant was not offered the right to appeal the outcome of decision. Referencing Deming Goa v The Commissioner of An Garda Síochána [2018] IEHC 244, the High Court has clarified the relevant legal point for the Respondent organisation in a judicial review and the Respondent’s actions in this particular matter are contrary to the matters rejected by the High Court.

The Complainant has been on sick leave since 10 September 2020 to the present. It is submitted that the cognisable periods in this matter are 22 March – 21 September 2022; 2 October 2022 – 1 April 2023; and 7 May – 6 November 2023. In March 2020 the Complainant was granted leave to self-isolate at home because of an underlying condition that rendered her at “high risk” of being made seriously ill by Covid-19 infection. She was issued with IT equipment and asked to work from home. On 20th August 2020 advice was received from the Occupational Health Nurse based on recommendations from the CMO that the Complainant’s medical circumstances do not fall into the category of extremely medical vulnerable groups required to cocoon… however the information provided by her GP places her in the “at risk” group. It is submitted that this is contrary to the Complainant’s assertion on two of the complaint forms that she “was required to mandatorily self-isolate and not to attend in the workplace”. In line with the guidance applicable to the Respondent and the public service as a whole the advice provided to management in August 2020 was that: “If remote working is still feasible for local management the supporting documents from her GP suggest this homeworking should continue and this is in line with the CMO’s instructions”.

The position in the public service was that workers such as the Complainant in the at-risk  group might attend the workplace with extra precautions. The named Superintendent informed the Complainant of his reasons why she was to return to the workplace, and she was directed to do so on the 10th of September. It is not accepted that the Superintendent “pressured her to return” as claimed. The email set out the extra precautions to be taken in respect of Covid-19. The Complainant thereupon reported sick. On 11th September 2020 the Superintendent made an interim proposal that when certified fit for work, the Complainant should return to work at a named Garda Station with minimal interaction with colleagues and none with the public.

On 30th November 2020 the Complainant declined to meet to discuss the interim proposal. The assertion that either location “was noncompliant with Covid or health and safety”, as is stated on two of the complaint forms is denied.

The direction of the 3rd of September was made in accordance with the then applicable policies governing arrangements for workers at high risk in relation to Covid-19.

From 31st January 2022 and therefore or the entirety of the cognisable periods, “cocooning” was no longer a recommended workplace accommodation even for those (unlike the Complainant) at “very high risk” from Covid-19. From that date public health advice for at risk workers was to avail of vaccination and to wear a facemask in crowded spaces.

It is not possible for the Complainant to be “forced to report sick” as is asserted on the complaint form. Garda Code 11.37 and the Public Service Management Leave Regulations of 2014 provide for certification of non-effectiveness by a doctor. The Complainant was not on sick leave because of the direction of the Superintendent, she was on sick leave because and only because of the decision of her doctor to continue to certify her as unfit to work. The Complainant received her full entitlement to ordinary sick illness payments.

The Complainant alleges that she was “subsequently forced into going onto ordinary sickness and off special leave with pay”. This is disputed in that the guidance regarding special leave with pay in lieu of sick leave for Covid-19 stated, “Special leave with pay only applies to employees who were rostered or were due to be working” and since the Complainant was on sick leave for the entirety of the cognisable periods, it follows that special leave with pay was not applicable. Garda Code 11.37 as supplemented and amended by HQ Directive 139/2010 makes a distinction between “injury on duty” and “ordinary illness”. The significance being that: “Where the illness is attributable to injuries received by the member in the execution of duty without wilful default or negligence on his/her part full pay may be allowed while there is a reasonable probability that the member will be able to resume duty”. An application for injury on duty benefit requires application to the Chief Superintendent and they go on to set out the clauses of 139/10 as cited by the Complainant.

The Complainant made an application for injury on duty benefit to the Chief Superintendent concerning the entire period of sick absence from September 2020 on 22nd July 2022. This was rejected by the Chief Superintendent, following a recommendation from Garda HRM by letter of 22nd March 2023. An appeal was lodged in January 2024 and dismissed by the A/Executive Director HRPD in June 2024. The Complainant’s application for injury on duty benefit has been considered within the applicable framework which provides for retrospective adjustment of pay where an absence is determined to have been caused by injury on duty. As a determination to the contrary has been made in respect of the Complainant, it follows that injury on duty benefit was not properly payable.

Referencing the use of the term reasonable accommodation by the Complainant the Respondent submits that there is no complaint under the Employment Equality Act. The Complainant’s assertion that the CMO advised “engaging with her on formulating reasonable accommodation” is not correct. In any event, since the Complainant was on medically certified sick leave during the cognisable periods, and was therefore unable to work, no reasonable accommodation allowing her access to employment could have been made.

Referencing Balans v Tesco Ireland Ltd [2020] IEHC 55, the High Court made clear that the decision maker, when considering a complaint under the 1991 Act must first establish the wages which were properly payable to the employee on the occasion before considering whether a deduction has been made. It is common ground that the Complainant was unable to attend to her duties due to illness during the cognisable periods. It follows that the loss of income in this matter was in fact no more than the normal operation of the agreed public service sick pay arrangements as applied to her situation. The wages not earned during these periods were not “properly payable”. In their supplementary submission the Respondent submitted that (a) there is a low bar for the question of injury on duty classification to be referred by the Divisional Officer; (b) that the post of Assistant Commissioner HRM has been abolished and replaced with that of Executive Director HRPD; (c) the Executive Director is required to seek and receive the advice of the Chief Medical Officer; (d) the classification decision is a management decision informed by medical assessment and opinions, rather than a medical decision; (e) provision is made for retrospective adjustment of pay where injury on duty is determined; and (f) that the scheme refers to injury on duty rather than injury at work or similar and is not applicable to the civil service of An Garda Siochana.

In arriving at her decision on the 18th of July 2024 the Acting Executive Director recorded that her decision was based in part on medical advice including that of the CMO of the 29th of December 2022 where he states:

“But for the reported incident or reported occurrences in the course of the member’s work or duties August 2020… the medically certified basis for [absence] 10/09/2020 onwards would likely not have presented.”

It cannot be said therefore that the Acting Executive Director did not consider the CMO’s report as contended. It has never been suggested in this matter that the Complainant is not suffering from work-related stress which practically by definition must be linked to an incident or reported occurrence in the workplace. The doctor also noted that it was for “relevant” or reported occurrence in the workplace. The doctor also noted that it was for “relevant Garda management rather than him to define or be satisfied as to what circumstance in itself constitutes or qualifies as injury in the context of and in the course of duties.” The Acting Director also acknowledged the medical advice and placed it in the context of the investigation file and particularly the report of the Inspector who noted that the Complainant’s stress concerning Covid-19 originated from March 2020, six months before the beginning of the periods of absence in question, and attributed the later work-related stress to interactions between the Complainant and the Superintendent following his decision to end the remote working arrangement. The Acting Director also cited An Garda Siochana’s working definition of “injury on duty” derived from the English Court of Appeal case of Commissioner of Police v Stunt [2001] EWCA Civ 265. The adjudication officer will appreciate that it is necessary for the operation of a police injury on duty scheme that a distinction be made between injuries related to police duty and workplace injuries of a more universal nature.

It is submitted that the decision of the Acting Director who was in receipt of medical advice and the views of management to conclude that “injury on duty” in the context of a member of An Garda Síochána did not encompass work-related stress allegedly caused by a management decision to end a remote working arrangement, was reasonable and was consistent with the purpose of the injury on duty scheme. Regarding the arrangements for the Complainant to return to work in August/September 2020 it is submitted that the Complainant has at all times been committed to remote working, and only remote working as a feasible working arrangement.

The Complainant’s assertion that no investigation occurred and that no attempts were made to engage with her are untrue. An Inspector was appointed to investigate the circumstances of the Complainant’s work-related stress absence on 21 September 2020. That Inspector issued a report on the 22nd of October 2020 that the Complainant had advised him that she would not be discussing her medical issues with me or any other person except her own medical doctor or the Chief Medical Officer and that ‘as she is unwilling to discuss the matterwith me I am unable to progress the matter. ‘On the 30th of November 2020 the Complainant declined to meet a named Sergeant and Inspector to discuss working arrangements.

On the 11th of August 2021 the Complainant was offered a meeting with a Garda Superintendent to discuss her grievance of 13 July which she declined. The Chief Superintendent then contacted the Complainant by email offering assistance which was also declined.

Contact was maintained with the Complainant via her supervisor who told the Superintendent on the 5th of June 2022 that he had contact with the member on a monthly basis and he would keep her abreast of any developments and enquire of her wellbeing.

The Complainant’s own correspondence log documents ongoing engagement with her by the employer. When the Complainant sought a review of her work-related stress under Garda Code 11.37 in July 2022 the Complainant referred to not wishing to discuss her medical information with the Inspector as previously outlined. He then contacted her again on 1 September 2022, but she requested a different officer to be assigned on the grounds of an unspecified conflict of interest. She was instead met by a different Inspector who conducted an investigation. The report of that Inspector  of 23 October did not recommend that a Code 11.37 should issue. It is not understood how the Complainant can now assert that her work-related injury was never investigated in accordance with HQ Directive 139/2010. On the 16th of January 2023 when asked by a Superintendent she stated that she had not thought about where she would like to be stationed on her return to duty “as she was not well enough to work at present”. On the 27th of June 2023 the Complainant met a named Chief Superintendent at stage 2 of the grievance procedure. Again, the Complainant was asked where she would like to work, and she replied that she did not know. On the 25th of August 2023 the Complainant met with a named Assistant Commissioner at stage 3 of the grievance procedure. The correspondence log notes the Assistant Commissioner asking, “what the organisation needed to do to get her back”, to which her representative replied that the Complainant “did not have the answers to that question today”. Neither the recommendation of the Head of HR Directorate on 30th of January 2023 nor the decision of the Acting Director on the 18th of July 2024 made any determination or indeed referred to the Working Together or Dignity at Work policies. None of the medical reports state that the matter must be considered as an injury on duty. The Complainant is in effect asking the adjudication officer to substitute her view for that of the decision makers.

Even if it were the case that [the employer] should have taken further or different action following the commencement of the Complainant’s sickness absence, which is denied, it is submitted that every employment relationship is based on an agreement by an employee to attend work and to carry out work, in return for agreed wages. While she was not able to work, the Complainant’s wages were not properly payable, meaning that she had no legal or contractual entitlement to wages. No alleged “procedural flaws” in the operation of an employer’s sickness absence procedures can affect that basic proposition. The Complainant is at a financial loss because of the ordinary application of the regulations concerning sick leave to her particular situation. HQ Directive 139/10 is the appropriate starting point for assessing what wages were “properly payable” in respect of injury on duty benefit. The procedures contained in the Directive were followed and a reasonable conclusion reached that the sickness absence was not caused by an injury on duty. It follows that entitlements under the injury on duty scheme were not applicable. It further follows that basic pay and compensation for loss of unsocial hours premia sought by the Complainant were not wages “properly payable”.

Wages are defined in s.1 of the Act of 1991 as:

“…any sums payable to the employee by the employer in connection with his employment, including—

The Respondent relies on the High Court in Balans for the term ’properly payable’. The term properly payable is simply a term in Section 5(6) of the Act.

5(6) provides:

“(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properlypayable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.”

The starting point for the assessment of a complaint that sums payable have been unlawfully withheld or deducted, is in fact Section 1-definition of wages-  which requires that the payment claimed as owing to an employee forms part of the sums payable to the employee by the employer as a type of payment  comprehended by the term wages.

(a)   any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise…”

[Payment in lieu of notice is a separate category of wages in section 1].

In the same section, members  of An Garda Siochana are categorised as employees for the purposes of the Act.

The Respondent advises that there is no contract of employment in this employment, but rather a reliance on circulars-as expressed in the 1990 Industrial Relations Act, as amended. A strangely old-fashioned approach by a large state employer, but an approach provided for in certain legislation, nonetheless. Section 1-Wages-9(a) provides for sums payable to include the terms of a sick pay scheme. The scheme in this case is an occupational sick pay scheme with terms additional to the general sick pay schemes sanctioned in this and other public service employment.  Once it is accepted that the source of the payment claimed is comprehended by s1 as a sick pay scheme, the next qualification  is whether there was a  properly payable sum due  to the employee under that scheme during the cognisable period(s).

There is much heat in the debate between the parties regarding the obligation of the Respondent to investigate a report of stress in the workplace, on the obligation of the Complainant to submit a grievance. Reference was made at one stage to the ‘Dignity at Workplace Policy’ (shorthand title).Reasonable accommodation is referenced in the Complainant submission. Issues arose around providing and disclosing of medical information and interminable arguments about who was entitled to make decisions versus whether outcomes were decisions or recommendation and finally  communications or non-communications during the absence were all matters of dispute. There is a clear and in my view unanswerable cause of complaint about the delay in a making the decision (as it is claimed to be on July 18th, 2024) and why it took from January 2023 to issue that decision. The employee concerned did object to more than one investigation or investigator or the provision of information - all of these and the delay by the employer have clouded the issues between the parties and the required processes. Nonetheless, the question of properly payable, as distinct from a delay in deciding on an application is what is to be decided in this case.

When the issue which gave rise to the High Court proceedings in Goa and at least two other IR Disputes are examined(the details are matter of record on the WRC website). In each case, the origins of the issue or incident which caused the absence is an injury of a psychological nature. An injury which while it may have occurred or is claimed to have occurred while the employee concerned, including in this case, was  on the ordinary payroll, the Respondent took the view initial that each injury did not occur ‘in the line of duty’. I accept from the Respondent representative his information that payments have been made under the scheme for psychological injuries, but the background to those payments as he described certain circumstances was that the incident which caused the injury  related to the duties of the particular employee. The Respondent also accepted in correspondence post the hearing, that information on the Respondent website regarding the basis of payment from the scheme requiring malice in some fashion is required as a qualifying factor, was erroneous and appears to conflate the injury compensation scheme with the injury on duty sick pay scheme. That conflation, if that is accepted as such,  may well be erroneous but allied to the first line in the Decision of 18 July 24, and the stance in other cases referenced, the extract from the official website serves to underscore an inference at least that the management of the Respondent do not regard an interpersonal injury, even if it occurs in the workplace as being comprehended by the scheme. The first line of the report of July 18th, 2024, is based on legal advice obtained in 2010:

‘For an injury to be received by a police officer in the execution of duty, the injury has to be directly and causally connected with service as a police officer.’ 

That this is not explicitly stated in the scheme and neither is the purpose of the scheme set out clearly so as to exclude such instances, leaves employees such as the Complainant thinking they can access the scheme but in reality, the evidence in this and other cases is this will not succeed unless the employer provides for payments such as those claimed in this instance-i.e., related to an interpersonal  dispute or other intra employee workplace dispute in the workplace into the future. Whether this was a fair reflection of the facts in this instance, that is clearly the view taken.  The situation is not assisted by encouragement from the CMO office which in this case was the starting point  for the claim. It was the CMO who on 26th April 2022  gave an opinion, not sought by the employer that I can see, that the Complainants illness should  be considered for the injury at work scheme. There was a delay before the Complainant received this report and opinion. Thereafter  the Complainant, on receiving the COM opinion, submitted a claim for the payment on 21 July 2022, almost two years into her absence.

It follows from the forgoing, that where the employer has a belief that the reason for an absence from duty is as a result of an issue of an interpersonal and related  psychological nature rather than an injury incurred on or related to duty as a garda, they are more likely than not to put that claim through the system for a decision, either way. And, perhaps most importantly, they are entitled to do so. The scheme provides for situations where there is a doubt, and even if this was not expressly stated, payment from such a scheme will always be discretional rather than automatic, based on the facts in each case and thus there is an implied right to assess a claim before approval.

Injury on Duty Classification

Where there is any doubt that an injury on duty occurred, Divisional Officers should refer the matter to Assistant Commissioner, H.RM[1]., who will seek the advices of the C.M.O.  The C.M.O. will take into account all relevant information arriving at his/her advices.

A decision regarding injury on duty will be based on:

§  A complete investigation file into the incident;

§  Management views and recommendations;

§  The assessment and opinions of the C.M.O.

Ordinary illness/injury on duty

Where there is a doubt as to whether the member's sickness absence is due to ordinary illness or an injury on duty the member's absence will be treated as ordinary illness pending a decision of the classification of the injury and in particular the C.M.O.'s advice.  If it is determined that the absence does relate to an injury on duty, the member's pay will be retrospectively adjusted as soon as practicable.

The application of the terms of the scheme require a decision and expressly provides for a process where there is a doubt. As matters stand, more likely than not there will be a doubt when the basis of the claim is regarded as interpersonal albeit work related. It follows therefore that the entitlement to the terms of sums payable under the scheme become properly payable only if and when the employer or Respondent approves the payment at which point it will be backdated. As a decision to approve the application for payment was not made at any point during the cognisable period/s, the sums claimed did not become properly payable to the Complainant as required by Section 1 of the 1991 Act as amended. The complaint under the Payment of Wages Act, cannot therefore succeed.

CA-00052905-002 The Complaint by the Complainant against the Respondent is not well founded.

CA-00055855-001 The Complaint by the Complainant against the Respondent is not well founded

CA-00059825-002 The Complaint by the Respondent is not well founded.

Payment of Wages Act 1991 Sums payable under a sick pay scheme for the purposes of Section 6 of PW Act