Worker

Employer

Anonymised Parties

Bus Driver

Passenger Transport provider

Representatives

Thomas O'Connor and Kieran Maguire National Bus and Rail Union

 Senior HR Manager

Act

Dispute Reference No.

Date of Receipt

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

IR - SC - 00001903

20/10/2023

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely.  I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way.

This hearing was conducted remotely. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that all formal hearings should be conducted fairly. The hearing was not conducted in public as it concerned a dispute brought under Section 13 of the Industrial Relations Act of 1969.

Industrial Relations disputes are primarily heard on the basis of factual and/or legal submissions provided by the respective parties. Relevant parties might be invited to give an oral recollection of events, facts and matters within their knowledge. Testimony may be subject to rebuttal by witnesses or other relevant evidence provided by the other side.

The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 29th of October 2023. As the within matter is a dispute between parties and brought before the WRC using the Industrial Relations Acts it is heard in private and the recommendation is anonymised.

I have taken the time to carefully review all the evidence both written and oral.  I have noted the respective position of the parties.   I am not required to provide a line by line rebuttal of the evidence and submissions that I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held

“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”. 

The Complainant or Worker was fully represented. The Complainant was represented by a member of the Union which operates to meet the needs of its members and consequently has a specialised interest and knowledge. I was provided with a comprehensive submission dated the 26th of February 2024. The Complainant/Worker additionally relied on the submission outlined in the Workplace Relations Complaint Form.  I was provided with supplemental documentary evidence in support of the Complainant’s case. No objection was raised to any of the materials relied upon by the Complainant in making his case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant raises a workplace dispute under section 13 of the Industrial Relations Act, 1969. He alleges that an Appeal outcome  was unfair and has given rise to a serious economic impact to his detriment.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Respondent entity was represented by the Employee Relations Manager. The Respondent provided me with a written submission dated the 27th of February 2024. I have additionally heard oral evidence from the Area Operations Manager for the Respondent. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case.  The Respondent submissions and witness were challenged as appropriate by the Complainant’s representative.

The Respondent rejects that there has been any unfairness directed at the Worker. In fact the Respondent has asserted that the opposite is the case and that the Worker has been afforded with comprehensive and appropriate assistance in the aftermath of an assault perpetrated on the Worker while at work.  

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully considered all that I have heard in the course of this hearing.

A number of matters are non-contentious. This includes an acceptance that the complainant was the victim of a seemingly unprovoked assault by a member of the public on or about the 17th of July 2023.

The mere fact that an Employee Assault Assistance scheme operates across this workplace leads me to the depressing conclusion that this is something that unfortunately happens from time to time. Whether or not the Employer might have anticipated and /or prevented this Assault (or any assault) is not for me to determine. What I have been invited to look at is the immediate participation in, and the immediate application of the said Assault Assistance scheme.

As is required under the terms of the Assault Assistance Scheme the Complainant’s line Manager offered immediate Medical and Welfare support. The Complainant was directed to the Chief Medical Officer for examination and to the Employment Assistance Programme for post traumatic intervention.

To be fair to the Complainant he had no criticism of Management in the aftermath of the incident. As well as the above, and given the seriousness of the assault perpetrated on the Complainant, it was deemed appropriate to give the Complainant the benefit of the payment scheme which operates under the Assault Assistance Scheme. For the purpose of clarity, I accept that the scheme identifies that (per section 9):

If the Decision is made to pay assault assistance pay this will be paid at a rate of the employee’s average weekly earnings.. for a period of four week

I understand that any payment made under the assault assistance scheme is at a preferable rate than might apply under the in-house Occupational Injury Scheme which would operate for other (non-assault) workplace related absences. I also understand that the said Occupational Scheme would automatically operate when a person comes off the assault assistance scheme. The Respondent Occupational Injury scheme operates for 26 weeks (circa six months) on a sliding scale.

The point about section 9 above, is that this purports to set out the starting point. That is, that the Respondent workplace allows for a four-week period of pay under the assault assistance scheme before the Occupational Injury scheme kicks in. The Complainant was entitled therefore to be paid under the scheme up to about the 14th of August and in fact was continued on the assault scheme rate of pay up to an intended cut of point of the 30th of September 2023 which cut off point was notified to the Complainant on the 18th of September 2023. That would have given the Complainant eleven weeks on the enhanced assault assistance scheme rate of pay.

In circumstances where the Complainant was still undergoing medical review with the Chief Medical Officer with an uncertain prognosis, the Complainant decided to appeal the decision to terminate the assault assistance scheme rate of pay.  Section 16 of theassault assistance scheme states :

“In order to address more serious incidents should they arise the automatic move to Occupational Injury benefit after 4 weeks may be appealed to a Senior ….Manager .. The maximum period an employee may be in receipt of assault assistance pay will be for a 26-week period after which time payment will revert to being under the Occupational Injury Scheme”.

As was his right, the Complainant appealed the decision to move him from the assault assistance scheme to the Occupational Injury Scheme.

The Appeal was heard by ALO the Area Operations Manager who was available to give an account of how he processed this appeal during the course of the hearing before the WRC. AOL said that he had conducted up to six or seven such Appeals in the course of the last two years and asserts that his approach is consistent. In particular, he takes account of the personal and financial considerations and the overall impact that the incident has had on the Appellant. In assessing these factors, AOL concluded that the Complainant should be entitled to another four weeks on the assault assistance scheme rate of pay and thereafter should be placed on the Occupational Injury Scheme.

The Complainant disputes this outcome as it denies him the potential of a further 11 weeks on the assault assistance scheme rate of pay. This rate of pay is preferable to that on the Occupational Injury Scheme which slides downwards. The Complainant through his representative asserts that the seriousness of the assault perpetrated against him should have meant that he should have been considered entitled to qualify for the full 26-week assault assistance scheme rate of pay allowance. The Complainant’s case appears to be based on the premise that other Employees involved in these traumatic type events (in Donegal, Sligo and Tralee) got the full 26 weeks. I accept that this might well be correct, but I was not in a position to conduct a comparative study. Also, I have to balance this assertion against the evidence of AOL who has stated that the outcome for the Complainant was consistent and in line with previous Appeals he had heard.

I think in the circumstances that all I can do in this situation is to look at the Appeal outcome and satisfy myself that it is not perverse and determine whether it is fair and reasonable?

It is noted that the assault assistance scheme rate of pay can only be applied for a maximum of 26 weeks. This therefore also allows for its application for a much lesser number of weeks. Once an individual is accepted to be on the scheme, the minimum number is four weeks. On Appeal the number of weeks can be increased anywhere up to 26 weeks. There is no qualification built into the scheme. The Appeal will simply be conducted by a Senior Member of Management. The outcome on appeal can therefore be anywhere between 4 to 26 weeks. In the Complainant’s case, he was allowed fifteen weeks on appeal.

On balance I am satisfied that the decision on appeal was within the range of what might reasonably be expected in terms of an outcome. There was nothing perverse or inherently unfair in the finding. I appreciate the Complainant was disappointed as he had assumed he would be allocated the full allowance of weeks under the assault assistance scheme rate of pay. However, there is nothing in the written scheme from which such an entitlement might be derived. If I were to make such a finding, I would be creating an unsettling precedent in the workplace and one which is not anticipated in the assault assistance scheme which is intended to operate in most cases for only four weeks. I am mindful of the fact that the complainant is on the Occupational Injury Scheme

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

I was struck by the cordiality between the parties and would hope that continues. It is clear that the Complainant has been involved in a traumatic event which has had a profound effect on him. He is understandably concerned about his future as he grapples with this recovery process.