Anonymised Parties

A Worker

A Policing Service

Representatives

James McEvoy of Work Matters Ireland

Internal/Self-represented

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 - 00000344

05/06/2022

Adjudication Officer’s Note: I have anonymised the names of the parties and the submissions by both parties, insofar as possible, as this matter was referred to me under the Industrial Relations Act 1969 (as amended), and therefore the hearing was heard “otherwise than in public.” However, the relevant applicable law stems from findings by the High Court in a 2018 judicial review case, which, I have left intact and unaltered, in my findings and conclusions. That matter, being a High Court judicial review case, is already in the public domain.

It is the Worker’s case that she overheard a male colleague of higher rank than her, speak at work about a colleague of the same rank as him (to whom the Worker reported at the time), to a number of people (some of whom were of higher rank than him again), in a way which was deeply disturbing. The content was vitriolic and misogynistic in nature, (i.e. it pertained to a protected characteristic). The Worker informed the colleague who had been the subject matter of the abusive conversation. That person reported the incident to the Employer. An investigation concluded that the conversation had occurred, as alleged by the Worker. Consequently, disciplinary action was taken in line with the Employer’s disciplinary procedures against the person whose conduct she had reported.

It is the Worker’s case that the Employer completely mismanaged the investigation and the issue in general. She highlights a number of things in particular. The Employer disclosed her identity to the person she reported but failed to inform her it had done so, and failed to provide any appropriate supports or resources to her and, left her in situ, with a continuing reporting relationship to the person against whom she had made the disclosure (the Worker has outlined instances of how this played out in practice), and that as a result, she was left open to and was the subject of retaliation of a variety of forms by the person complained, as well as by some other colleagues (some also of superior rank to her), her complaints about which, the Employer also mismanaged.

She submits that she was the subject of a false allegation by the person whose conduct she reported and was later exonerated by the Employer. It took the Employer eleven (11) months. Its own policy requires a maximum time-limit of 30 days.

The Worker submits that she was left (physically) exposed by the person of superior rank whose conduct she complained, without the support of a colleague which would be the norm, in terms of how the rostering was done for her job (isolation); that she was re-assigned to a less favourable roster; and was refused a swap where others were allowed to swap in the same circumstances. She was the subject of intimidatory behaviours, including – outrageously – someone of a higher rank (along with another colleague) calling to her home on a pretext of doing a ‘welfare check’; as well as, on another occasion, a ‘welfare meeting’ conducted in a public place, in which she then was the subject of unrelated and unfounded accusation, and loudly berated in a public place, also during this time-frame.

She also highlights the Employer’s absolutely inordinate and inexcusable delay in handling her Dignity at Work complaints. The Employer’s own policies have a requirement of a thirty (30) day time-limit, whereas the time-frame in the Worker’s case is approximately four years, comprising a combination of extreme delays and fundamental procedural flaws requiring the process to be re-done from scratch.

The Worker emphasises the impact on her, both personally and professionally, the compounding consequences of the Employer’s actions, inactions, misapplications of its own policies and mishandling of her case, in particular on her career, finances, health and well-being. She has been certified sick from work since February 2018, and is currently off payroll having exhausted all options (sick leave, Critical Illness Payment (CIP), Temporary Rehabilitation Remuneration (TRR)), and having been refused a Code 11.37 certificate by the Employer.

The Worker highlights that she was required to report any wrongdoing witnessed, by the terms of the Employer’s own Code of Ethics, due to the nature of her work; and that she acted not only correctly, but as she was bound to do by the Employer, in her reporting of the wrongdoing she witnessed.

The Employer acknowledges the inordinate delays in breach of its own policies. It acknowledges that there have been severe failures and submits it has actively engaged with the Worker.

It submits that, in that context, the Worker was approved for CIP, in circumstances where she did not exactly meet the criteria, but where the extraordinary circumstances arising here were taken into account.

The Employer submits that effectively following the award of Critical Illness Payment (CIP) on 09/04/2020 and pay amendments the Worker was paid sick leave as follows:

·       Full pay from 13/02/2018

·       Half pay from 15/08/2018

·       Temporary Rehabilitation Remuneration from 13/02/2020

Sick pay exhausted from 11/02/2022

Details of sick pay (prior to the amendment):

·       Full Pay from 13/02/2018

·       Half Pay Sanction from 05/06/2018

·       Temporary Rehabilitation Remuneration from 15/08/2018

Sick pay exhausted from 13/02/2020

On 09/04/2020 the Worker was awarded Critical Illness and received a pay amendment as follows:

·       Full pay 16/05/2018 - 14/08/2018

·       Half Pay from 15/08/2018

·       Temporary Rehabilitation Remuneration from 13/02/2020

Sick pay exhausted from 11/02/2022

It further submits, that in acknowledgement of the delays and procedural flaws etc. that it offered to restore the Worker to basic pay backdated to June 2020 on condition that she return to work within a specified time-frame (the end of March 2023, which has since passed), and that this offer is the equivalent of approximately three years’ basic pay. The Worker remains certified unfit to work by both her own doctor and the CMO.

The Employer has defended both its decision and its handling of the Worker’s Code 11.37 application, setting out that it is bound by the terms of the policy and that it does not have discretion in relation to sick pay policy but instead is bound by the terms of the applicable Public Service Circular on sick leave, and the applicable ‘Code’ and ‘Directive.’

It further disputes the Worker’s assertions, submitting that she has received a decision on the Code 11.37 application, that she simply did not like the decision she received, and suggesting that she received a decision as far back as 2018.

The Worker has been employed by the Employer since June 2009.

It is the Worker’s case that she overheard her male direct superior speak at work, about a female colleague of the same rank as her, to a number of people (some of whom were of higher rank than him again), in a way which was deeply disturbing. The content was misogynistic in nature, (i.e. it pertained to a protected status). The Worker informed the colleague who had been the subject matter of the abusive and derogatory conversation. That person reported the incident to the Employer. An investigation concluded that the conversation had occurred, as alleged by the Worker. Consequently, disciplinary action was taken in line with the Employer’s disciplinary procedures.

The Worker submits that as a consequence of her reporting this incident, she was subjected to unfavourable treatment, including being subject to a false allegation of “unacceptable behaviour” by her by the person of directly superior rank, who was the subject of disciplinary action, based on the findings of the investigation, following the complaint submitted by the Worker’s colleague. She also submits that while working under his direction, including his failure to provide sufficient cover which left her working alone without the support of another colleague. [Adjudication Officer’s Note: This has particular significance given her line of work.]

As a result of his allegations against her, the Worker was the subject of a very long and protracted investigation which took eleven (11) months to complete, some ten (10) months in excess of the thirty (30) days allowed under the applicable code. The findings of this investigation issued on 23rd April, 2019, and completely exonerated the Worker of any wrongdoing.  It is submitted that the unfair treatment and this false claim of “unacceptable behaviour” made against the Worker are central to the cause of her illness. 

Dignity at Work complaint

On August 28th, 2018, the Worker submitted a complaint under the Employers Dignity at Work policy. This policy provides that an outcome be issued within 30 days. The Worker received the outcome of her complaint, in February 2020, seventeen (17) months after it had been submitted. The Investigation was undertaken by a person five ranks above the Worker.

In March 2018, the Worker submitted an appeal of that Investigation outcome. This appeal was conducted by a person six ranks above the Worker who found that the initial investigation conducted had failed to adequately investigate the complaint and recommended that the matter be re-investigated. 

On 25th August, 2020, a new person, five ranks above the Worker was appointed to conduct the re-investigation. The outcome to this process was issued on 21st January, 2022, one year and five months later.

The combination of the matters outlined above caused the Worker to suffer ‘work-related stress.’  

The Worker was certified unfit to work as a result of work-related stress on 13th February 2018. The issues subsequent to her initial absence have contributed to her ongoing illness and the Worker remains out of work to date.

Classification of the Worker’s illness and consequences for pay:

Central to the situation is the classification of the Worker’s illness. The Employer has classified the Worker’s absence as “Ordinary Illness” and consequently she received reduced pay and ultimately received no renumeration at all. 

The Worker maintains her condition should have been classified as “Injury on Duty”, as her illness is a direct consequence of her working environment and should have been paid in accordance with the relevant code. 

The Worker submitted an application to be granted 11.37 status, on 30th April 2018. The Employer refused this application. It is submitted that the decision by the Employer to classify the Worker’s, ‘Work Related Stress’ as ‘Ordinary Sickness’ means that she has suffered major financial hardship and mental distress.

During the intervening time, she has been on reduced pay and was removed completely from payroll on February 11th 2020 and then restored in April 2020 on Critical Illness Payment (€118.00, weekly).

Finally, the Worker was once again removed from the Respondent’s payroll on February 11th 2022. This situation remains ongoing.

This action was a consequence of the Employer’s refusal to consider the Worker’s application to be classified as 11.37, ‘Injury on Duty’, until all investigations and appeals relating to her complaint were concluded.

The Worker is seeking compensation for:

•       the failure of the Employer to address the matter in accordance with its own code/policy. 

•       the failure of the Employer to correctly classify her illness as “Injury on Duty”, classification 11.37, in line with the relevant Code.

•       The associated loss of earnings she has suffered as a consequence of these failures.

The Internal Dispute Process:

The Worker sought to have the matter of her removal from the Employer’s payroll resolved through its Internal Dispute Resolution Process.

STAGE ONE: On March 28th 2022, the Worker engaged with Stage 1 of the Employer’s internal Dispute Resolution Process (DRP) using the required form.

This stage of the process was conducted by a person two ranks above the Worker. In his findings, it was agreed that the required timelines were not adhered to, and that this failure impeded the Worker’s return to work, the end consequence of which was the cessation of payment, leaving the Worker without income, but in relation to the classification of the Worker’s absence found the decision not to assign 11.37 status to the Worker, as sound. In support this decision, he references communication from Human Resources Management, issued on November 18th, 2019, which states that a 11.37 cannot be issued while investigations are ongoing.

When addressing the removal of the Worker from payroll, he finds that following a review of the policy and discussions with [HR] who informed him that, regardless of the employee, the policy is identical for every employee and “there is no alternative arrangement available.”

STAGE 2: This stage of the process was conducted by a person three ranks above the Worker. Stage 2 upholds the decision made at Stage 1.

STAGE 3: This part of the process was conducted by a person four ranks above the Worker.

This person also concludes that the Worker cannot be awarded 11.37 status while internal investigations are ongoing and recommends allowing for these processes to complete, before making any decision in this regard.

Stage 3 upheld the findings of Stages 1 & 2 of the Internal Dispute Resolution Process.

The person assigned to conduct Stage 3 of the Internal Dispute Resolution process advised that the result of a current investigation being conduct by a person six ranks above the Worker would bring resolution in the matter. However, that person (six ranks above the Worker) conducted her investigation, under the applicable Dignity at Work policy and issued her report on 21st June 2022. She made no direct finding in relation to the Worker’s 11.37 status. It is submitted that she provides no rationale to support her findings (Appendix 5).

The Complainant’s Position: 

It is submitted that it is clear that the Worker’s illness is work-related. 

The Worker applied for and was granted Critical Illness leave, despite her illness not having any of the required conditions.

This application was granted on April 8th, 2020, because of the particular circumstances existing in the workplace and the long time periods involved.

Throughout the process the Respondent has maintained it was not in a position to classify the Worker’s illness as “Injury on Duty”, while investigations were ongoing, because to do so would be in breach of the Policy.

The Employer attests that this policy is applied rigorously to all employees, regardless of rank. The relevant policy states:-

(1) that no decision has or can be made on the classification of the applicant's sickness absence pending the completion of an investigation by the respondent of the applicant's complaints 

However, during the Tribunal of Inquiry, of February 16th 2017, the Employer gave evidence to confirm that 11.37 status had previously been given, while investigations were on going on the instructions of a senior officer.

When questioned, the witness for the Employer accepted that this was contrary to the stated policy and that in effect the employee had been classified as 11.37, while investigations were incomplete and there was no consensus on the source of illness.

This would suggest that 11.37 status is sometimes granted outside of what is required under the policy. The document is attached as an appendix, the relevant pages begin at Page 37. [This pertains to the implementation of the applicable Code and Directive.]

It is submitted that the Directive makes a distinction between 'injury on duty' and 'ordinary illness', the significance being that an employee’s absence due to 'injury on duty' will entitle him/her to sick leave with full pay together with premium payments for a period that exceeds the basic entitlements attaching to sickness absence due to 'ordinary illness'.

Section 11.37 of the Code sets out the manner in which a 'personal injury' is to be considered and provides as follows:-

(1) If [an employee] suffers personal injury, and is rendered non-effective or otherwise, a full report of the circumstances should be submitted immediately to the [employee]’s Divisional Officer. When non-effectiveness as a result of an injury exceeds 60 days in any period of 90 days, the report will be forwarded to [a role five ranks above the Worker], Human Resource Management ['HRM']. A decision regarding culpability will be made locally by the Divisional Officer except in cases where:-

(a) The Divisional Officer is of the opinion that the injuries were due to wilful default or negligence on the part of the [employee].

(b) The Divisional Officer has a doubt about the matter. In such cases the file will be forwarded to [a role five ranks above the Worker], Human Resources Management for directions.'  

The Directive provides for a marginal note to be made at s. 11.40 of the Code which provides for the classification of sickness absence as 'injury on duty' as follows:-

'Injury on Duty Classification:

Where there is any doubt that an injury on duty occurred, Divisional Officers should refer the matter to [a role of specified rank], Human Resources Management who will seek the advises of the Chief Medical Officer (C.M.O.). The C.M.O. will take into account all relevant information arriving at his/her advises.

A decision regarding injury on duty will be based on:

•  A complete investigation filed on to the incident;

•  Management views and recommendations;

•  The assessment and opinions of the C.M.O.;

There was no investigation into the cause of the Worker’s work-related stress. It appears when the Employer refers to the investigation process, it has either confused or merged the complaint under their Dignity at Work policy with an investigation in the cause of the Worker’s illness. However, the two are distinct and separate. 

Ordinary illness/injury on duty

Where there is a doubt as to whether the [employee’s] sickness absence is due to ordinary illness or an injury on duty the [employee’s] absence will be treated on 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 [employee]'s pay will be retrospectively adjusted as soon as practicable'.

The Worker maintains that her illness was a direct consequence of her working situation. The circumstances of which the Employer was fully aware; the malicious complaint made against her, the excessively long periods of investigation, if these aspects were not present, the Worker would not have been certified as suffering from work-related stress and unfit to work.

The Directive provides for the making of a further marginal note at s. 11.37 of the Code which provides as follows: -

'Investigation’

Where [employees] report non-effective for duty as a result of injury on duty or work-related stress, a thorough investigation should be carried out immediately and the outcome reported to [a role five ranks above the Worker] Human Resources Management for the attention of the C.M.O. The [employee] concerned shall be advised of the Employee Assistant Service Peer Support and any other support deemed necessary. Local management shall address the issues causing the [employee’s] stress.'

No such investigation was conducted to examine the source of the Worker’s work-related stress, which is a breach of the Employer’s policy.

On September 22nd 2022, Acting Executive Director, Human Resources & People Development, issued a decision that the Worker’s absence has been correctly classified as “ordinary illness.”

Here again, there seems to be confusion between an investigation into the cause of the Worker’s illness and the Dignity at Work complaint process is referenced, rather than an actual investigation into the cause of the Worker’s condition.

In April 2018, a person three ranks above the Worker, was appointed to conduct an investigation in the cause of the Worker’s illness; and met with the Worker on April 16th 2018.

Subsequently, on 25th May 2018, [a person four ranks above the Worker] wrote to [a person three ranks above the Worker] advising that the investigation should cease, to allow the investigation into the Worker’s Dignity at Work complaint to complete.

In her report, the Acting Executive Director, Human Resources & People Development, explains that the advices of the Chief Medical Officer (C.M.O.), were sought in relation to the complaint of the Worker and her allegations of bullying, harassment & victimisation and the link between these and her absence.

It is emphasised that the Worker’s absence for work-related stress had commenced long before the submission of her complaint of bullying & harassment. Despite this, the C.M.O. is not directed to address or comment on matters preceding this submission.

The CMO advices issued, as per his instructions from the Employer; and his advices and comments make no reference to the link of the overheard conversation, the excessive time-frames or the false allegation made against the Worker, by the person of higher rank whose conduct she complained, because she had complained about him – raising the complaint was an action which was consistent and required by the Employer’s own Code of Ethics.

Closing Statement: 

In previous advices from the C.M.O., dated 19th December 2018, the C.M.O. commented, he deemed the Worker was not in a position to “sustain attendance at work and render effective service particularlyin light of the unresolved issues.” 

Despite this, he concluded he was unable to establish an association between the two issues and recommended that in order to resolve the issues of the Worker’s work-related stress, internal procedures should be concluded in a reasonable timeframe.

Prior to her current illness, the Worker had an exemplary attendance record, for which she has been commended by the Employer. 

During her time of employment, the Worker was competent in her role; there have been no issues relating to her ability to successfully complete her duties & responsibilities. 

The Worker has never complained of difficulties or feeling overwhelmed managing her workload. 

No such issues have been reported by the Employer or the C.M.O. 

In his interactions, the C.M.O. has not identified any other factor contributing to the Worker’s illness. 

The Respondent has admitted that the circumstances were so severe, it was warranted that the Worker being placed on Critical Illness Sickness Leave. 

There is no other reason, outside of the issues presented, to explain the Worker’s work-related stress. 

The Worker’s employment commenced on 11th June 2009, and she is attached to [redacted location]. The Worker is currently non-effective for duty and has been non-effective since 13th February 2018.

The Worker states the reason for her claim is the fact that management refuse to adjudicate on her application for an ‘Injury on Duty’ certificate under ‘the Code’, Chapter 11.37.

The Worker is also seeking return to payroll as she has exhausted all entitlements to paid sick leave, Critical Illness Payment and Temporary Rehabilitation Remuneration.

This claim follows on from an internal complaint pursuant to the internal Disputes Resolution Procedure (DRP). All three stages of the procedure were completed which did not find in the Worker’s favour. Where a Worker is dissatisfied with the outcome of the DRP, they may then make a referral to the WRC.

The Worker notes that at the time of making her submission to the WRC, the investigation into her appeal under the Anti-Bullying and Harassment policy had not completed.

The investigation has since been completed into her appeal and a finding was issued on 21st June 2022 by [a person six ranks above the Worker] which did not uphold her appeal and did not make a finding of bullying or harassment.

A final decision was then made on the Worker’s application for a Code 11.37 certificate as the investigation had completed. The decision was dated 22nd September 2022.

Management has made a number of offers of payment to the Worker as a result of the requirement to have a new investigation under the Dignity at Work policy in recognition of the delay caused by having to have a second investigation carried out and on the proviso that she return to work, however the Worker has not agreed to accept any payment.

Background

This complaint centres on the refusal by management to issue a decision in regard to the Worker’s application for a certificate under Code 11.37. Under the Code Volume 1, Chapter 11, [employees] who are injured while on duty can be issued a ‘Code 11.37’ certificate which entitles them to full pay while ‘non-effective.’ It also results in the [employee’s] sick record being unaffected by such absence.

The Worker went out sick on 13th February 2018, and continues to remain out sick despite the Respondent’s efforts to assist her return to work on numerous occasions.

The Public Service Management (Sick Leave) Regulations 2014 and [applicable] Directive set out the entitlements to paid sick leave. A employee is entitled to 92 days paid sick leave on full pay in a year followed by a maximum of 91 days paid sick leave on half pay. This is subject to a maximum of 183 days paid sick leave in a rolling four-year period.

Where employees have exhausted paid sick leave, they may apply for Critical Illness Payment (CIP) under the 2014 Regulations. There are strict criteria to qualify for CIP, but where the criteria are met then the CIP scheme allows for a further 183 days on full pay in a year followed by 182 days on half pay subject to a maximum of 365 days paid sick leave in a rolling four-year period.

When CIP has been exhausted, the Sick Regulations and the applicable Directive provide for the payment of Temporary Rehabilitation Remuneration (TRR). Employer management can consider paying TRR for a further 730 days. This is subject to 6 monthly reviews and may only be granted where the occupational health physician has confirmed there is a reasonable prospect of a return to work.

The Worker has amassed a total absence of 1,932 days to date (31 May 2023). As a result, she has exhausted all access to any further paid entitlements and is therefore correctly off the payroll.

Code 11.38 Certificate:

Under the Code Volume 1, Chapter 11, [employees] who are injured while on duty can be issued a ‘Code 11.37’ certificate which entitles them to full pay while non-effective. It also results in the [employee]’s sick record being unaffected by such absence.

The Code Volume 1 provides for the majority of procedures applicable to employees. Chapter 11 provides for all forms of ‘Leave, Rest Days and Illness’. In addition to the Code, there are applicable Directives, Regulations and laws that apply in regard to a number of rights and entitlements.

Sick absence, either as a result of an injury on duty or as a result of ordinary illness is provided for in a number of documents. The relevant documents include Chapter 11 of the Code as quoted below, [applicable] Directive 139/2010 and the Public Service Management (Sick Leave) Regulations 2014 already cited. 

The relevant Code section 11.37 states:-

11.37 Injuries:

(1)   ‘If [an employee] suffers personal injury, and is rendered non-effective or otherwise, a full report should be submitted immediately to the [employee]’s Divisional Officer.

When non-effectiveness as a result of an injury exceeds 60 days in any period of 90 days – the report will be forwarded to the [civilian person of specified rank] HRM.

A decision regarding culpability will be made locally by the Divisional Officer, except in cases where;

(a)   The Divisional Officer is of the opinion that the injuries were due to wilful default or negligence on the part of the [employee].

(b)   The Divisional Officer has a doubt about the matter. In such cases the file will be forwarded to [a role five ranks above the Worker] HRM for directions.

When submitting the file to Headquarters, a record of the Divisional Officer’s decision should be attached.’

It is denied that no decision was made in regard to the Worker’s application for a Code 11.37 certificate. On the contrary, the Worker originally made a Code 11.37 certificate application dated 30th April 2018. As per the Code set out above, an investigator was appointed to investigate the cause of the Worker’s absence and made a report to the Divisional Officer. The decision to issue a Code 11.37 certificate lies with the Divisional Officer unless there is any doubt or the injuries were as a result of wilful default or negligence.

The Divisional Officer issued his decision on 21st December 2018 not to issue a Code 11.37 Certificate to the Worker. Therefore, the Worker did in fact receive a decision as far back as December 2018 based on the investigation into her absence at that time.

This fact is further supported by the fact that the Worker then put in an ‘Appeal of a Decision on Code 11.37 Application of [the Worker] [Reference redacted]’ dated 13th March 2019 seeking to have the decision to refuse her a Code 11.37 certificate appealed.

By this time the Worker had already made a complaint of bullying and harassment under the Dignity at Work Policy dated 28th August 2018.

As a result, any further decision on her Code 11.37 appeal could not be made until the outcome of the investigation into her bullying and harassment claims were known. Since the Dignity at Work procedure allows for an appeal, this too must be completed before a decision can be made on a Code 11.37 application.

The Head of the HR Directorate made this clear in a letter to the [person four ranks above the Worker] of the Worker’s Division dated the 18th of November 2019, setting out the fact that there were ongoing investigations. Further the letter stated that ‘As you are aware, a decision regarding the application from the Worker to have sick leave which is recorded as ‘work related stress’ covered under the Code 11.37 Certificate cannot be made until all investigations (including appeals) have been fully completed and the results furnished.’

In the circumstances, the Worker’s complaint of bullying and harassment was not upheld.

As a result, the Worker appealed the decision. The outcome of this appeal was that the matter should be re-investigated as the original investigation was flawed and could only be remedied by way of a new investigation.

The first investigation and appeal under the Dignity at Work Policy concluded with decision by [a person six ranks above the Worker]  dated 21st August 2020, recommending a new investigation.

As a result, a new investigator was appointed and a new investigation was carried out. The investigator did not find for the Worker. The Worker then appealed this decision under the Dignity at Work policy. The final decision was issued on 21st June 2022 by [a person six ranks above the Worker]. Again, there was no finding of bullying and harassment.

This then resulted in a decision being made on the Worker’s claim for a Code 11.37 certificate. This decision was made by the Acting Executive Director of HR&PD, dated 22nd September 2022.

The Worker was refused a Code 11.37 certificate on a number of grounds. There was no finding of bullying and harassment. The C.M.O. was unable to conclude that the medically certified basis of the absence from the 13/02/2018 to date was wholly or substantially causally attributable to the [employee]’s assertion of bullying, harassment and victimisation as a stressor. The Acting Executive Director concluded therefore that the absence of the Worker, commencing on 13th February 2018 was correctly categorised as ordinary illness.

In conclusion, it is incorrect to state that the Worker did not receive a decision on her Code 11.37 at the time of her complaint to the WRC.

She received a decision from her Divisional Officer in December 2018 which she appealed.

A final decision was then made by the Acting Executive Director after the completion of all investigations into her claims on 22nd September 2022 after the Worker’s claim to the WRC.

Therefore, it is submitted that the claim that management are refusing to make a decision on the Worker’s code 11.37 certificate application is both incorrect and is now a moot point. 

Complaint under the Disputes Resolution Procedure (DRP)

The Worker submitted an internal complaint under the Employer’s Disputes Resolution Procedure (DRP) on 26th April 2022. This complaint concerned the Worker’s removal from payroll and the refusal to give a decision on her Code 11.37 application, using the applicable form to make a complaint under the DRP. (TAB 10)

There are three stages under the procedure and where a complainant is dissatisfied with the outcome of the first stage, they can then have the matter investigated by a new investigator of higher rank under the next stage and so on up to Stage 3. If the complainant is still dissatisfied with the outcome, then under the procedures the matter can be referred on to the WRC.

It is on the basis of this DRP complaint not being resolved to the Worker’s satisfaction that this complaint now rests with the WRC. The initial internal complaint concerned being taken off payroll and in addition the fact that Employer management were not issuing a decision on her Code 11.37 certificate application.

The complaint was first dealt with at Stage 1 of the DRP procedure by [a person one rank above the Worker] who did not uphold the Worker’s complaint. (TAB 11)

The Worker then progressed her complaint to Stage 2 of the DRP procedure. This was investigated by [a person two ranks above the Worker]. He also did not uphold the Worker’s complaint in his decision. (TAB 12)

The matter was then progressed to Stage 3 of the DRP procedure, the final stage of the procedure. The Stage 3 investigation was carried out by [a person three ranks above the Worker] who conducted the investigation and did not uphold the Worker’s complaint in his decision. (TAB 13)

The Worker was entitled to take a complaint under the DRP in regard to the matters she raised in regard to removal from payroll. However, as can be seen from all three decisions, Employer management had properly applied the provisions of the Public Service Management (Sick Leave) Regulations 2014 in regard to the Worker. There is no discretion available to management in regard to paying sick leave. The Regulation is specific on the number of paid sick days an employee is entitled to, firstly at full pay rate and then on half pay rate in a rolling four-year period. Once the number of days has been exhausted, an employee may apply for CIP, which is double the ‘normal’ entitlement to paid sick leave. There is also the availability of 730 days on TRR rate of pay in order to maintain an employee on the payroll. The Worker benefitted from all of the above since going out sick on the 13th of February 2018. This is set out in an email from the Sick Section. (TAB 14)

Sick Pay

The Worker has amassed a total absence of 1,932 days to date (31 May 2023). Where an employee is absent on ‘ordinary illness’, management have no discretion in applying the 2014 Sick Leave Regulations and can only apply sick pay as set out above at paragraph 2.4. Therefore, where an employee has exhausted the duration of paid sick leave, the employee will usually be off payroll as a result.

In the Worker’s case, an application for Critical Illness Payment (CIP) was made on 3rd March 2020. (TAB 15)

This application was approved by the Sick Section despite not meeting the strict criteria and was instead based on the extenuating circumstances prevailing due to the requirement for a new investigation into her complaint of bullying and harassment and the ensuing duration it was taking to resolve those issues. (TAB 16)

The Respondent was therefore willing to extend CIP on this occasion to the Worker and consider the criteria for CIP met, despite the fact that the criteria had not been met. This is set out and explained in correspondence to the Divisional Officer from the Employer’s Sick Section.(TAB 17)

The notification of the award of CIP as sent to the Divisional Officer for [location redacted] on 9th April 2020. The CIP was backdated to the date of her absence on 13th February 2018. An email was sent directly to the Worker notifying her that her CIP application was approved dated 9th April 2020. (TAB 18)

The Worker eventually exhausted all access to payments due to the length of her absence from work and was taken off payroll on 11th February 2022 having exceeded 1,460 days within the past 4 years on sick leave. A letter from the Director of the HR Directorate dated the 15th of February was sent to the [specified role] in the Divisional Office notifying the Worker that she was off payroll from that date and that her reckonable service will be broken as a result. (Tab 19)

Offer of Payment

It is submitted that the Employer has engaged fully with the Worker over the years of her absence and has on many occasions attempted to assist the Worker to return to work. Various offers have been made at various times both in regard to location of work and in regard to additional payment in acknowledgement of the extra time that management took to conclude the Worker’s complaint of bullying and harassment.

[A person five ranks above the Worker] for the [location redacted] region, met with the Worker on 3rd December 2020.  At this meeting, among other things, an offer of an alternative work location was made. In addition, in recognition of the delays to progress the re-investigation following the review of [a person six ranks above the Worker] offered to reinstate the Worker to basic pay from 29th June 2020, provided she return to work. (TAB 20)

The Worker did not accede to any of the offers made.

The current [person at a role five ranks above the Worker], has also met with the Worker on 7th October 2022 in [Location redacted]. Matters raised at this meeting were dealt with in a follow up letter to the Worker dated 26th January 2023, setting out four specific points that the Worker wanted followed up. The letter also reiterated the offer to return the Worker to payroll backdated to 29th June 2020 on the basis that she is well enough to return to work by 31st March 2023. It was also made clear that the Executive Director HR&PD did not see any basis for extending the payment beyond 29th June 2020 which the Worker was seeking. (TAB 21)

The [person five ranks above the Worker] wrote to the Worker again on the 17th of April 2023 noting that the Worker had not returned to work within the required time to avail of the offer of a return to basic pay backdated to the 29th of June 2020. (TAB 22)

It should be highlighted that the offer of backdating the Worker’s basic pay back to the 29th of June 2020 is almost three years’ worth of basic pay. The Worker having been in receipt of paid sick leave, CIP and TRR prior.

The Respondent considers this a reasonable offer and a mitigation of the delays incurred due to the need to investigate the Worker’s bullying and harassment complaint under the Employer’s Dignity at Work policy, a second time, causing further delay to an outcome of the matter.

Complaint under the [applicable Dignity at Work] Policy

The chronology of the investigations that took place under the Employer’s Dignity at Work policy are as follows:-

The Worker put in a complaint under the Employer’s Dignity at Work policy dated 28th August 2018, an acknowledgement letter is sent to the Worker from the Executive Director dated 3rd October 2018. (TAB 23)

The Acting Executive Director nominated [a person five ranks above the Worker] to carry out the investigation of the complaint, by letter dated 8th January 2019. (TAB 24)

The complaint was investigated and [the person five ranks above the Worker] submitted his report on 30th January, 2020, to the HRM Office. (TAB 25)

The findings of the investigation were then confirmed by [name redacted] and she confirmed that all parties to the complaint had been informed that the complaint was not upheld. (TAB 26)

Following this decision, the Worker appealed the decision and [a person six ranks above the Worker] was appointed to carry out the appeal on 21st April 2020. (TAB 27)

This is then followed by his decision dated 21st August 2020, in which he recommends a new investigation take place. (TAB 28)

[Another person five ranks above the Worker] is then appointed to conduct a new investigation into the Worker’s complaint on 25th August 2020 by [name redacted]. (TAB 29)

An email from [name redacted]’s office  confirmed that the investigation of [the person five ranks above the Worker] was completed on 29th December 2021 and the findings of the investigation were attached to this email. The investigation did not uphold the Worker’s complaint of bullying and harassment. (TAB 30)

This decision was then appealed by the Worker and [another person six ranks above the Worker] was appointed by the Acting Executive Director to conduct the appeal investigation. (TAB 31)

The decision of [another person six ranks above the Worker] issued on 21st June 2022. [The person six ranks above the Worker] did not uphold the appeal and did not find that the Worker had been the subject of bullying or harassment. (TAB 32)

Conclusion

The Employer denies that it refused to make a decision in regard to the Worker’s application for a Code 11.37 certificate. As demonstrated above, the Worker received a response to her original application for a Code 11.37 certificate from the Divisional Officer as per the applicable Code, Chapter 11 as early as December 2018. The decision was to refuse the Worker’s application for a Code 11.37 certificate. The Worker then appealed this refusal.

The Worker made a complaint of bullying and harassment dated 28th August 2018 under the Employer’s Dignity at Work policy. As a result, it was not possible to make a decision on her Appeal for a Code 11.37 certificate until there was a definitive and final finding made. Only then would it be possible to know if the injury or work-related stress complained of had a causal link to the workplace.

There was no finding of bullying and harassment and once there was a final decision in regard to the complaint, the Employer then was in a position to make a decision on the Worker’s appeal to have her absence treated as an injury on duty and be given a Code 11.37 certificate. This decision was duly made by the Acting Executive Director HR&PD and found that the Worker did not qualify for a Code 11.37 certificate.

The Employer acknowledges that there was delay in regard to the investigation of the complaint under the Employer’s Dignity at Work policy. It submits that it is regrettable that there had to be a new investigation, however this was to ensure that due process and fair procedures was afforded to all parties to the complaint.

The Employer has been willing to acknowledge the shortcomings in this regard and to this end, in order to mitigate for the delay caused has offered to place the Worker back on payroll on basic salary backdated to 29th June 2020 if she returns to work. She has also been accommodated with a commitment to relocate her to a different location if she wishes. The offer to return the Worker to the payroll backdated to 29th June 2020 has been on offer since the end of 2020 and continued to be offered as recently as January of 2023 up to 31st March 2023. It is submitted that this is a generous offer as it amounts to almost three year’s basic salary.

Given that the Worker has refused the offer of being returned to basic pay backdated to 29th June 2020 and return to work, it is submitted that no monetary award be made to the Worker under this claim. 

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

I was very surprised by the Employer’s submissions. In particular, the High Court has clarified the relevant legal point for the Respondent organisation, in early 2018, in a judicial review. The relevant case on point is Gao V. The Commissioner of An Garda Síochána [2017 No. 909 J.R.].

I found myself very surprised to find the Employer re-running the same arguments the High Court has specifically rejected, without taking cognisance of the fact that the High Court has spoken on this matter.

The 2009 case from a Policing Tribunal in another jurisdiction pertaining to police dogs and ‘causation’ is not relevant here; and I am taken aback by the Employer’s attempt to rely upon it, instead of the applicable decision of the Irish High Court, in a judicial review case, precisely on point dating from 2018; as I am, by the Employer’s failure to reference the relevant case law, at any point.

The approach in relation to ‘causation’, taken by the Employer throughout its handling of this matter, including in its submissions to the WRC, is in flat contradiction of the clear findings, clarifications and directions of the High Court in 2018.

In light of that, it is worth highlighting that all parties have particular duties in how they advocate and present their case, and how they engage, when appearing in front of the WRC. In particular, advocates have an obligation to draw to the attention of the Court (in a civil matter) or Tribunal, or other judicial or quasi-judicial body, any legal case whether favourable or otherwise to its contention, which is relevant to the Court’s, Tribunal’s or other body’s proper consideration of the matter before it.

The Code of Conduct published by the Bar of Ireland (the most recent version adopted on 24/07/2023) is instructive in this matter, and I have reproduced the relevant sections below:

s. 2.3. sets out:-

“It is the duty of Barristers:

                (b)  to act at all times with honesty and integrity.”

s. 5.3. (d) sets out: “While engaged in any matter before a Court or other body, Barristers shall not mislead nor knowingly permit the Court or other body to mislead itself in relation to the law applicable to that matter save that Barristers defending in criminal matters shall be under no duty to correct errors by the Court which may favour their clients.”

s. 5.19 sets out: “In a civil case Barristers must, at the appropriate time in the proceedings, inform the court of any relevant decision on a point of law and, in particular, of any binding authority or of any applicable legislation of which they are aware and which the Barrister believes to be in point whether it be for or against their contention. (See paragraph 5.3).”

Under the heading: “Conduct before other Judicial and Quasi-Judicial Bodies, and before Mediators”, s. 5.33. sets out: “The Rules set out in this section, governing a Barrister’s obligations when conducting cases, also apply where a Barrister appears in a mediation or before an arbitrator or any other person or persons exercising judicial or quasi-judicial functions, or before the sole member or members of Tribunals appointed under Statute or by the Oireachtas or any other investigating body.”

In the instant case before me, the Employer has made submissions in relation to Code 11.37 and “injury on duty.” However, the High Court has already clarified this exact point in a 2018 judicial review case, Gao V. The Commissioner of An Garda Síochána [2017 No. 909 J.R.] I have reproduced the relevant sections of that High Court judgment below.

Gao V. The Commissioner of An Garda Síochána [2017 No. 909 J.R.], @para 58-63, addresses that a Code 11.37 does not pertain to “injury on duty” but rather to “personal injury.”:

“Injury on Duty Classification58. Both the applicant and the respondent have argued the case before this Court on the assumption that the issuing of a Code 11.37 certificate (provided it has not been issued in error) has the legal effect of classifying the sickness absence of a member of An Garda Síochána as an ‘injury on duty’. In so arguing, the parties have referred to s. 11.37(1) of the Code, which is outlined above at para. 9.

59. Section 11.37(1) of the Code in fact makes no reference to ‘injury on duty’ but instead refers to ‘personal injury’ without restriction of such injury to injuries suffered or sustained in the course of duty. Moreover, the issue of ‘culpability’, which is to be decided under the section, is not whether the relevant ‘personal injury’ was suffered or sustained by a member of An Garda Síochána in the course of his/her employment but rather whether such injury was due to ‘wilful default or negligence on the part of the member’. If he/she is of the opinion that the injury was due to wilful default or negligence on the part of the member or has any doubt about the matter the relevant Divisional Officer is required to forward the relevant file to the Assistant Commissioner, HRM for directions.

60. Insofar as there is any reference to ‘personal injury’ which is suffered or sustained by a member of An Garda Síochána in the course of his or her employment, it is to be found in the wording of s. 11.37(4) of the Code (upon which neither the applicant nor the respondent have placed any reliance). Section 11.37(4) of the Code provides that where a member suffers or sustains a personal injury ‘in the discharge of duty’ and where such an injury is ‘of a serious nature or likely to affect health or condition of health permanently or eventually to incapacitate (the member) in the performance of duty’ and such injury is sustained without wilful default or negligence by a member, the injury must be ‘recorded’ at headquarters. The reporting duty thus imposed is not for the purpose of classifying the status of the injury as an ‘injury in the discharge of duty’ but rather because ‘only recorded injuries’ can be considered in the event of the member ever applying for a ‘special pension’ on the grounds that the member has been incapacitated by an injury received in the execution of duty.

61. It is apparent from the foregoing that s. 11.37 of the Code in fact has no relevance to the classification of the status of a member’s sickness absence where the only issue to be decided is whether the status of a member’s sickness absence is to be classified as an ‘ordinary illness’ or ‘injury on duty’.

62. Provided that an injury was not due to wilful default or negligence on the part of a member within the meaning of s. 11.37(1) of the Code, the issue of the classification of the status of a member’s sickness absence appears to be governed solely by the Directive and specifically the marginal note for which it makes provision at s. 11.40 of the Code. The relevant extracts from the Directive are set out at para. 10 above and their meaning and effect appear to be as follows:-

(1) if there is no doubt that an injury on duty occurred, the injury can be so classified by a Divisional Officer without reference of the matter to Assistant Commissioner, HRM;

(2) where there is any doubt that an injury on duty occurred, the Divisional Officer should refer the matter to the Assistant Commissioner, HRM;

(3) upon such referral and pending the decision on the classification of the injury, the member’s absence is to be treated as ordinary illness;

(4) upon such a referral, the Assistant Commissioner, HRM, must seek the advice of the C.M.O.;

(5) the C.M.O. must take into account all relevant information before arriving at ‘his/her advices’;

(6) the ultimate decision regarding the injury on duty is to be made by the Assistant Commissioner, HRM which he/she must base on:

(i) A complete investigation file into the incident;

(ii) Management views and recommendations;

(iii) The assessment and opinion of the C.M.O.;

(7) if it is determined that the sickness absence does relate to an injury on duty, the member’s pay is to be retrospectively adjusted as soon as practicable.

63. The Directive further provides for the carrying out of investigations in the marginal note provided for at s. 11.37 of the Code, which is referred to at para. 11 above. The requirement to carry out an investigation in such circumstances arises even where there can be no doubt but that the relevant injury/stress is work related. The requirement thus appears to be directed towards the promotion of garda welfare and is unrelated to the administrative classification of the status of the relevant member’s sickness absence. This is made clear by the fact that the outcome of such an investigation is to be reported to the Assistant Commissioner without any requirement that he/she should seek the advices of the C.M.O. or make any decision which would in anyway affect the classification of the status of the member’s sickness absence.”

Secondly, the High Court in Gao V. The Commissioner of An Garda Síochána [2017 No. 909 J.R.], also considered psychological injury and the possible context of bullying and harassment, within the facts of that particular case, @ para 73-76:

“73. The respondent contends that ‘ample reasons’ have been given for the decision and that ‘the position’ has been ‘fully explained’ to the applicant by the respondent in the letters of 22nd June, 2017, 30th June, 2017 and 11th July, 2017. The correspondence so relied upon does not explain what error was made by Chief Superintendent Russell. Whereas the letters of Chief Superintendent McPartlin merely refer to the Directive and incorrectly states that the matter awaits determination by the C.M.O., the correspondence from Ms. Carr, the Head of the HRD, refers merely to an ‘ongoing’ investigation into bullying which was not in being when the Code 11.37 certificate was issued.

74. At para. 5 of his written submissions, the respondent advances a further reason for the reclassification of the applicant’s sickness absence which has no basis in the letters of 22nd June, 2017, 30th June, 2017 and 11th July, 2017. The respondent contends as follows:-

‘Where a psychological injury may have arisen by reason of alleged bullying and harassment a decision as to the classification of such illness may not be made at Divisional level but will require a determination that the member in question has been bullied or harassed within the meaning of the policy of An Garda Síochána (on) Bullying And Harassment entitled ‘Working Together to Create a Positive Working Environment’. In addition, the advice of the Chief Medical Officer’ will be required in respect of the issue as to whether a member is suffering from a psychological injury. These are prerequisites that must have occurred prior to an injury being classified as resulting from an injury on duty.

75. It is difficult, if not impossible, to reconcile the above statement with the Directive. The Directive on its face does not make a finding of wrongdoing on the part of the respondent, his servants or agents a necessary prerequisite to the classification of sickness absence due to work related stress as an ‘injury on duty’. The Directive in fact makes no reference to bullying, harassment or actionable occupational stress and expressly permits a Divisional Officer to classify sickness absence as ‘injury on duty’ where there is no doubt about the matter. [emphasis added]

76. More significantly, the submission overlooks the fact that the application made on 14th November, 2016 and the Code 11.37 certificate which was issued on 17th January, 2017 relate solely to the incident which occurred on 1st November, 2016 and to the stress and depression that the applicant suffered ‘as a result’ of that incident. The application of the 14th November, 2016 did not include a complaint of bullying which by its definition and as a matter of law can never consist of a once off or single incident (see Glynn v. Minister for Justice, Equality and Law Reform [2014] IEHC 133 and Quigley v. Complex Tooling and Mounding [2009] 1 I. R. 349). The Code 11.37 certificate issued on 17th January, 2017 merely classifies the injury sustained by the applicant on 1st November, 2016 as an ‘injury on duty’. The certificate thus cannot be read as a certification by Chief Superintendent Russell that the applicant was bullied and harassed or that he was subjected to such conduct prior to 1st November, 2016. Equally, insofar as the applicant has since 23rd June, 2017 sought to attribute his continuing absence from work to bullying and harassment that occurred prior to 1st November, 2016 it is not readily apparent as to how the Code 11.37 certificate could have any relevance to the applicant’s incapacity to work either from that date or indeed for any period prior to that date during which the applicant’s sickness absence was caused solely or predominately by events occurring prior to 1st November, 2016.”

Thirdly, in Gao V. The Commissioner of An Garda Síochána [2017 No. 909 J.R.], it was further clarified for the Respondent organisation that the decision-making power rests with HRM (of specified rank) in relation to the granting of a Code 11.37, not with the Chief Medical Officer (C.M.O.); and that the C.M.O.’s advices (which are to be based on all the relevant facts) form only one of the three considerations which have to be considered by HRM (of specified rank) in making a determination whether to grant a Code 11.37 certificate or not.

At the time of the Gao case, in 2018, a High Court judicial review was the only avenue open to a Complainant faced with such a difficulty. In the interim, a referral to the WRC has also become an avenue open to a Worker. It is also worth noting, in terms of the Employer’s approach, that the High Court judgment in the Gao case pre-dates the Worker’s application for a Code 11.37 Certificate. The High Court noted that the process pertaining to an application for the granting of a Code 11.37 certificate allows for no appeal, within it.

There are a number of aspects to this referral to the WRC, under the Industrial Relations Act 1969 (as amended) to which I have had regard, and which require remedy.

-          The Employer’s handling of the Worker’s disclosure, and the aggravating and compounding facts surrounding the Employer’s actions, delays and failures.

-          The manner in which the Employer implemented its policies, to the detriment of the Worker, maintaining on the one hand that it had no discretion in relation to the processing of a Code 11.37 application until other matters had concluded, while flagrantly breaching its own policies, time-lines and the procedural requirements of fair procedure and natural justice, with respect to those other matters, thus putting the Worker in a “catch-22” and

-          the determination of the Code 11.37 application, without having regard to the High Court’s clear clarifications in Gao V. The Commissioner of An Garda Síochána [2017 No. 909 J.R.], as to how that application is to be correctly processed, what it encompasses, and what it expressly does not encompass or mean/determine, in particular with respect to causation.

I also note that the Employer outlines that it has made what it submits is a generous offer (which is submits is the equivalent of something in the order of three years’ basic pay, approximately). However, the Employer made the offer contingent on the Worker returning to work within a specified time-frame, as set out, which means that the Worker actually had no means of accessing the offer, in circumstances where the Employer’s own C.M.O. continues to certify her as unfit for duty.

In the extraordinary and exceptional circumstances of this case, I recommend the following:-

1.       That the Worker be treated, by the Employer, as though she had been put on administrative/protective leave (i.e. as though she were in full employment and not on sick leave/CIP/TRR) from 13th February 2018 date to 22nd September 2022. 

There are many aggravating factors in this case. I conclude that the concomitant requirement on the Worker to report any wrongdoing witnessed, in line with the Employer’s Code of Ethics, due to the nature of her job, coupled with the failure by her Employer to properly resource or protect her when she did so (and, in fact, the Employer exacerbated the problem by revealing her identity to the person of a higher rank about whom she had disclosed the very serious allegations, in the absence of putting her on protective/administrative leave (or otherwise resourcing or protecting her adequately or at all) while the Employer promptly investigated in line with its own policies - 30 day time-limit - and the requirements of fair procedures and natural justice); along with the adherence by the Employer to its position that it cannot process the Worker’s application for a Code 11.37 certificate until such time as all investigations have been completed while also failing to adhere to the required time-line in its own policies of thirty (30) days, as set out, for such completion of the investigation – and instead the period of time was, ludicrously, more than four years (with all of the attendant stress, uncertainty and knock-on impacts that brought for the Worker) – all coalesced to put the Worker in a simply untenable position, suffering gross financial detriment at the hands of her Employer, in addition to the obvious and ongoing personal and professional impacts.

In those circumstances, I conclude, as a matter of basic fairness, that the Employer should treat the Worker as though she was on protective/administrative leave for the relevant duration, which due to the sequence of events at the Employer’s hands runs (at its latest) from 13th February 2018 to 22nd September 2022 (at its earliest). For completeness, the precipitating incident occurred in November 2017, which is when the Employer ought to have resourced and protected the Worker, while it investigated properly and promptly, with an outcome from a properly run investigation produced prior to Christmas 2017. Had that happened, the Worker could have been back in work, as normal, in January 2018. The Employer has a duty to provide a safe place of work, and to resource those, especially, junior ranking officers who raise complaints/concerns in relation to the conduct of their superiors as they are required to do in line with the Employer’s own Code of Ethics.

A balancing statement will have to be done, by the Employer, with respect to, inter alia, the Worker’s pay and sick leave record, as currently recorded, in order to give effect to that recommendation. I note the Worker had a ‘zero’ sick leave record prior to the original precipitating incident, in November 2017 which she reported to her direct superior, and the cataclysm of events which followed thereafter.

I recommend that this recommendation is to be implemented in full within 30 days of the date of this decision.

2.       That the Employer pay the Worker €50,000 compensation in respect of:-

Its refusal/failure to process the Worker’s Code 11.37 application, correctly, in a timely fashion, adequately or at all, in line with the clarifications set out by the High Court as far back as early 2018 (as per Gao) and the consequences flowing therefrom for the Worker – the Employer has muddled the process under Code 11.37 as set out, with investigations under its Dignity at Work process, despite the clarity of the High Court -

and,

the inordinate delays years in length, (pertaining to the Dignity at Work complaints) and the 10 month delay pertaining to the investigation of the false allegation against the Worker

and,

its gross mishandling of the Worker’s disclosure, which she raised in line with the requirements placed upon her by the Employer’s own Code of Ethics,

and,

the Employer’s obvious aggravation of the problem, as by its actions the Employer has not only failed to mind the Worker through the process as it is required to do, and has not only failed to apply its own policies, time-lines, and adhere to the requirements of fair procedure and natural justice, as it is required to do, but it actually 1. aggravated the problem through its actions, rendering the Worker observably vulnerable based on the facts and sequence of events which followed, especially in light of her rank, the nature of her disclosure (which, apart from anything else, pertained to a protected characteristic), and the rank of the person against whom the disclosure was made, in particular the revealing of her identity (without informing her) while allowing a reporting relationship to persist prior to the matter having been investigated, and 2. it has caused a cumulative and compounding impact on the Worker’s personal and professional life, finances, health and wellbeing.

I recommend the compensation is paid to the Worker within 30 days of the date of this recommendation.

3.       I recommend that the Employer now consider the Code 11.37 application, pertaining to the period 23rd September 2022 onwards, correctly, in line with the clarifications and very clear guard-rails set out clearly by the High Court in Gao V. The Commissioner of An Garda Síochána [2017 No. 909 J.R.], and that HRM (of specified rank as set out) produce a reasoned decision, within 42 days of the date of this decision, setting out the reasons for its findings.

Gao V. The Commissioner of An Garda Síochána [2017 No. 909 J.R.] has very clearly set out  that:-

-      Code 11.37 pertains to ‘personal injury’ not ‘injury on duty.’

-      It is HRM (of specified rank) which has the decision-making discretion with respect to this matter, not the C.M.O.

-      That one of the three things to be considered by HRM (of specified rank) in making its decision is a report from the CMO who has considered all of the relevant facts.

-      That the granting of Code 11.37 Certificate is not a determining of causation, and may well be granted in circumstances where the injury complained of is psychological in nature but the facts complained of do not meet the legal definition of bullying (as in Gao).

When referring the matter to the C.M.O., I recommend that the terms of reference should include the time-frame from the precipitating event in November 2017 (and any relevant context occurring prior to that which the Worker wishes to provide) until 22nd September 2022, i.e. they should include the events themselves and also the compounding impact of the Employer’s handling of those events on the Worker.

I recommend that the facts which now require due consideration by the Employer, in line with the correct application of the Code 11.37 policy and processing of the Worker’s application (as clarified by the High Court in Gao) include, but are not limited to, the following:-

·       That the Worker was in her job eight (8) years at the time of the original precipitating event, in November 2017, and at that point had a ‘zero’ sick leave record.

·       The precipitating event itself, and the facts and events surrounding it (occurring in November 2017).

·       Any observances/events/context prior to the incident in November 2017 the Worker wishes to provide, for completeness. [I note the Worker has identified the treatment afforded her Unit, in this regard.]

·       The Worker’s ongoing health complaints from November 2017 onwards.

·       The time-line – a four-year delay by the Employer, and the impact of that on the Worker; In respect of her Dignity at Work complaint – there was a delay (of approximately 1.5 years), a finding of procedural failure/inadequacy, and then a further delay (of approximately 1.5 years). In respect of the false allegation made against her, the fact it occurred, the circumstances in which it occurred, the delay by the Employer in investigating it (delay of approximately 10 months beyond the Employer’s own 30-day limit), and the impacts on the Worker.

·       The Worker’s allegations of retaliatory behaviours against her by the superior ranking officer against whom she made the disclosure as required by her Employer, including but not limited to, her contemporaneous allegations of having being isolated (including physically, which is relevant to her safety, in her line of work) and penalised, and the consequent stress suffered – the realisation that she was unsafe/unprotected at work.

·       Her allegations of other intimidatory behaviour of other officers, some also of superior rank, including but not limited to two members of the Respondent organisation knocking on her front door when she was on sick leave, on the pretext of a ‘welfare check’; and the outrageous, putative ‘welfare meeting’ to which she was also subject, in a public place.

·       The revealing of her identity by her Employer to the person of superior rank about whose conduct she had made the disclosure (without informing her it had done so) combined with the failure to put her on protective leave (or otherwise protect or resource her adequately or at all, instead leaving her in situ as ‘a sitting duck’) prior to any investigation of her disclosure. The failure to inform her that her identity had been revealed, while leaving the Worker in situ, required to engage with, report to, and following management instructions issued by the person against whom she had made the disclosure is aggravating and egregious in nature. The potential exposure and potential outcomes for the Worker should have been immediately obvious to any Employer. This coupled with the failure to investigate in a timely manner (multiple inordinate delays and procedural failures) is compounding and aggravating in nature.

·       The stress and uncertainty as well as the personal, professional, financial and health impacts produced by the above.

Disclosure against a Superior; Failure to Protect by the Employer; Aggravating and compounding factors caused by Employer; Protective/Administrative Leave recommended; Compensation for inordinate delays and gross procedural failures recommended; Duties of honesty and integrity when appearing in front of the WRC; Duty to apply High Court findings; Correct processing of a Code 11.37 application in line with the High Court’s findings in Gao V. The Commissioner of An Garda Síochána [2017 No. 909 J.R.] now recommended;