Worker

Employer

Anonymised Parties

A Worker

A Policing Service

Representatives

A Union Representative

An Industrial Relations 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 - 00001943

01/11/2023

The worker is a member of a community policing unit.  In December 2019, her supervisor, who I will refer to as “Sergeant A,” nominated her to attend a child protection conference concerning a family in which the children were considered to be at risk.  In February 2020, due to neglect of the children, Tusla placed the family on the Child Protection Register.

Correspondence submitted for the hearing of this dispute indicates that Sergeant A recalls that she placed a file on the family in the worker’s “in tray” on March 24th 2020 and that the worker was assigned to investigate allegations of neglect of several of the children.

On June 3rd 2020, Sergeant A claims that she was concerned that no progress had been made with the case and she spoke to the worker who replied that she had no knowledge of the file.  In her submission for this hearing, the worker said that she only became aware of the existence of the file on June 8th 2020.  The documents show that, on June 11th, Sergeant A claims that the worker asked her for advice about how to proceed.  Sergeant A replied on June 13th and placed a set of instructions in the worker’s in tray. 

Correspondence from Sergeant A to an Inspector which is included in the worker’s submission indicates that Sergeant A got a phone call from the worker on June 15th 2020 and that the worker asked her to assign the file to someone else.  In her correspondence, Sergeant A said that, when she was informed by the worker that she hadn’t put the incidents on the case records system, she told her that “it would blow up in her face” if she didn’t get the incidents recorded.  The worker wrote to Sergeant A the same day and explained that she had contacted the social worker in Tusla and that there were serious concerns about the children in this family.  She said that she would make efforts to begin the investigation and to obtain records, but that she had been approved to take “term time” leave from July 11th until September 15th 2020 and she was therefore not in a position to progress the investigation.  She asked Sergeant A to assign someone else to the case in the intervening period. 

The worker wrote again to Sergeant A on July 11th, the day she commenced her term time leave.  She informed her that she had spoken to the mother of the children and that she told the mother that she would liaise with a named social worker regarding the children.  She reminded Sergeant A that she was about to go on leave and she repeated her request for another person to be assigned to the case, saying,

“Due to the fact that I will be unavailable until September 18th 2020, I believe it is important that another member be assigned who would be available in the intervening period to liaise with ….the family and various agencies already involved with the children.”

On July 22nd, having been informed by Sergeant A about the lack of progress in the children’s case, her superior, who I will refer to as “Inspector B,” wrote to her and expressed his opinion that this “would appear to be as a result of inaction” on the part of the worker.  Inspector B refused the worker’s request to have the case re-assigned and he instructed Sergeant A to contact the social worker to inform her of the delay dealing with the family and to advise him if anything is required to be done before the worker returned from leave.  Inspector B copied his email to his superior, “Superintendent C.”  Correspondence submitted by the worker shows that, on July 29th, there was a meeting with Sergeant A, Inspector B and Superintendent C regarding the involvement of the worker in the family’s case. 

On September 6th 2020, while the worker was still on term time leave, Sergeant A sent a report to Inspector B, in which she stated that she placed the file regarding the family at risk in the worker’s in tray “around the 24th of March.”  In her report, Sergeant A summarised her interaction with the worker between June 3rd and 15th regarding the family’s case.  She concluded her report by saying that the worker’s

“…failure / refusal to investigate this matter in my opinion is a serious organisational risk that could potentially have left the organisation exposed.  In that regard, I am recommending that …consideration be given to discipline.”

Sometime after he received Sergeant A’s report, Superintendent C wrote to his superior, “Chief Superintendent D,” and expressed his view that “a serious breach of discipline could be evident…”  He asked the Chief Superintendent to appoint a deciding officer to the case.

Three days before she returned from term time leave on September 18th 2020, “Superintendent E” was appointed to conduct an investigation into an alleged breach of discipline due to neglect of duty on the part of the worker.

On November 13th 2020, the worker reported that she was unable to attend work due to stress related to her work and she was absent for two weeks. 

On January 5th 2021, the worker attended a disciplinary hearing with Superintendent E. 

The worker’s submission states that, on January 10th, one of her colleagues was instructed to carry out an unannounced welfare check on the family, despite not being involved in the case.  The worker said that she felt “continuously disciplined and scrutinised” and she noticed that she was being excluded from emails.  In a discussion with Superintendent C about what she described as “unsustainable working conditions,” the worker said that Superintendent C presented her with three options: remaining in community policing with a different supervisor, transferring to regular work or re-locating to another district.

On February 1st 2021, Sergeant A circulated an email to the worker and others in her division about complaints from transport workers concerning the lack of response to calls about public order issues.  The worker felt that she was unfairly criticised in this email and this exacerbated her ongoing issues with Sergeant A.  She perceived this email as an attempt to undermine her credibility and she went absent again due to workplace stress on February 8th.

On March 16th 2021, the worker met with “Superintendent F” to facilitate the handover of documents related to the disciplinary investigation.  At this discussion, the worker expressed her wish to report to a different supervisor.  Superintendent F informed her that she was being transferred to a different unit, effectively removing her from community policing.  However, when Superintendent F himself transferred to a different unit, the decision to move the worker out of the community policing unit was reversed.  The worker claims that this is an example of the treatment that she faced while she was out sick.

The worker was still absent on March 23rd 2021, when she met with “Inspector G,” who informed her that the outcome of the disciplinary enquiry was that she was issued with a reprimand, in accordance with Regulation 14 of the organisation’s discipline regulations.  The worker told Inspector G that she intended to appeal against this reprimand.  She also told him that the cause of her absence was work-related stress.  Inspector G informed the worker that an appointment would be made for her to be assessed by the chief medical officer (CMO).  A referral form was completed the following day.  From the correspondence submitted by the employer, it seems that Inspector G decided that the worker should remain in community policing, “and resume the invaluable work for which she is recognised in the community.” 

On April 13th, advice was sought from the Executive Director or HR regarding whether the worker’s absences should be classified as ordinary illness or injury on duty.

Following an appeal meeting on April 22nd 2021, the day the worker returned from sick leave, the disciplinary sanction of a reprimand was reduced to a caution. 

Classification of Absence

The worker is employed in the public service and her entitlement to sick pay is governed by the Public Service Management Sick Leave Regulations 2014.  The Regulations provide an entitlement to full pay up to a maximum of 92 days a year and half pay for 91 days, subject to a maximum of 183 days in a rolling four-year period.  The application of the Regulations to this worker’s employment is governed by a Code, which is supplemented by HQ Directive 139/2010.  This Directive makes a distinction between “ordinary illness” and “injury on duty.”  Paid leave due to injury on duty exceeds the paid leave that applies to ordinary illness.  Also, a worker’s sick leave record is not affected by an absence due to an injury on duty.     

Section 11.37(1) of the Code sets out the manner in which a “personal injury” is to be considered and provides as follows:

(1)  If a member suffers personal injury, and is rendered non-effective or otherwise, a full report of the circumstances should be submitted immediately to the member'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 Assistant Commissioner, Human Resource Management.  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 member.

(b) The Divisional Officer has a doubt about the matter. In such cases the file will be forwarded to the Assistant Commissioner, Human Resource Management for directions.

Subsection (2) of section 11.37 provides that,

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

Subsections (3) and (4) are not relevant to this dispute.

The 2010 HQ Directive provides for “a marginal note” to be made at section 11.37 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 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.

On May 7th 2021, the worker had a telephone consultation with the CMO.  In a report to the Head of HR on May 11th, the CMO stated that the worker was fit for work “with standard safeguards and supports in place.”  He reported that the worker informed him that her recent absence was caused by work-related matters and that she intended to engage in mediation.  He said that he would write to the worker’s doctor about her absences and that he could then “advise you in relation to management’s query regarding causality.”  The CMO also requested an updated management report regarding the work-related issues which the worker said caused her to be out sick.  He said that he would then review the worker’s file and, if necessary, schedule another assessment.

On September 23rd 2021, the worker applied to have her absence due to illness re-classified as absence due to injury on duty in accordance with section 11.37 of the sickness absence code. 

In the seven months from September 2021 to April 2022, there was some back and forth in correspondence between the worker’s supervisors and the office of the CMO, but there was no progress with regard to her application for a section 11.37 certificate and, in April 2022, she looked for an update.  On April 27th, “Superintendent H” sent an email to Chief Superintendent D to inform him that the worker had applied to classify her absence as an injury on duty.  In his email, he referred to the meeting between the worker and Inspector G on March 23rd and he attached Inspector G’s report to his email.  Superintendent H noted that the medical certs submitted by the worker for her absence in November 2020 referred to work-related stress, but that her absence from February to April 2021 refer to “medical problems.”  Superintendent H said,

“I believe from reading the file that the work-related stress has allegedly been caused by a disciplinary process…” 

He said that he did not believe that this constituted an injury on duty and he suggested that there was a doubt about the matter.  Superintendent H concluded his email to Chief Superintendent D saying,

“I am aware that this decision rests with your office, that of the Chief Medical Officer and HR&PD.”

On receipt of this email, Chief Superintendent D forwarded details of the worker’s application for a section 11.37 certificate to the Head of HR.  He asked the Head of HR to seek further advice from the CMO.  Later that day, the Head of HR wrote to the CMO to make an appointment for the worker to be reviewed.

Almost nine months later, on January 12th 2023, the worker was reviewed again by the CMO (although by a different doctor).  The reason for the delay is not clear.  On this occasion also, the doctor’s opinion was that the worker was “medically fit for work with the appropriate supports and safeguards in place.”  He said that he could not definitively adjudicate on the cause of the worker’s absence although he referred to the significance of the issues she highlighted.

On April 7th 2023, the worker lodged an internal dispute regarding the delay receiving a decision on the classification of her absence.  This was referred to an assistant commissioner for an investigation in accordance with stage two of the Disputes Resolution Procedures.

On April 27th 2023, the Head of HR wrote to Chief Superintendent D regarding the worker’s application for a section 11.37 certificate.  In summary, the Head of HR informed Chief Superintendent D that:

§  He was not in possession of “the stress investigation file” for the worker’s absences. 

§  Work-related stress due to an interaction with another worker should be considered under the Dignity at Work policy. 

§  Stress attributed to disciplinary proceedings cannot be classified as an injury sustained in the execution of duty.

§  “At this juncture,” the worker’s absences from November 11th to 29th 2020 and from February 8th to April 22nd 2021 should remain classified as ordinary illness.

§  The worker may consider submitting a “formal approach” under the Dignity at Work policies and, if there is evidence in support of a complaint of bullying, the file may be re-submitted for review.  The assessment of the CMO will be sought at that time.

§  The worker was to be advised to engage with local management on the issues of concern and she should be made aware of the confidential support and welfare services available.

At the hearing of this dispute at the WRC on March 25th 2024, the worker said that she was not informed about this outcome.

On June 9th 2023, the assistant commissioner who investigated the worker’s complaint about the delay resolving her application for a section 11.37 certificate provided a detailed report on her investigation.  She confirmed that there had been an undue delay regarding her application and that “no reason was forthcoming to explain the delay.”  The worker did not advance an appeal in accordance with stage four of the Disputes Resolution Procedures. 

On June 15th 2023, the acting Executive Director of HR informed Chief Superintendent D that the worker’s absence would remain classified as ordinary illness.  In reaching this conclusion, the director of HR said that she considered the following:

§  The legal advice regarding the definition of injury on duty;

§  Inspector G’s report of March 24th 2021;

§  Correspondence on April 27th 2022 from the divisional office concerning a referral to occupational health and correspondence from Superintendent H confirming a doubt about the classification of the absences as injury on duty;

§  A request on January 26th 2023 from the divisional office for an update on the absence classification;

§  Correspondence on April 27th 2023 to the divisional office from the sickness absence section advising that absences related to a disciplinary process cannot be applied to injury in duty;

§  The reports of the CMOs on May 5th 2021 and January 16th 2023.

On June 26th, the worker received correspondence from “Inspector I,” informing her that her application to have her absences re-classified was refused.  Inspector I explained that the rationale was based on reports from Inspector G and Superintendent H, and case law indicating that, “where a member of a police force is citing injury on duty due to exposure to a disciplinary or grievance procedure, the general consensus is that such exposure does not constitute an injury on duty.”

On August 20th 2023, the worker initiated another grievance seeking the reasons for not re-classifying her absence.  On September 1st, she had a meeting with “Superintendent J”, to mediate and resolve her dispute in accordance with the organisation’s dispute resolution procedures.  Superintendent J had been unsuccessful in his efforts to procure the documents supporting the decision not to re-classify the worker’s absence.  The provision of the documents appears to have been delayed due to the priority given to the response to a request for documents submitted by the worker under the Freedom of Information Act 2014. 

On September 11th 2023, almost two years after she submitted her application, Superintendent J wrote to the worker and provided her with the documents she had requested related to the decision not to grant her the section 11.37 certificate to classify her absences as injury in duty.  Superintendent J said that, arising from the provision of the documents, he considered the matter to be closed.

The worker is seeking an impartial review of the decision not to classify her absences as due to injuries sustained on duty in accordance with the employer’s Code 11.37 concerning the classification of absences.  Mr TU said that the worker is asking that I, as the adjudication officer investigating this dispute, classify her absence “based on the precise language” in the Code and the judicial interpretation provided in that regard as set out in the case of Deming Gao v the Commissioner of An Garda Síochána[2].  The worker also seeks “adequate compensation” for what Mr TU described in his submission as “an extended ordeal” without an explanation for the delay and for the impact on her health.

The worker’s position is that the report submitted by Sergeant A on September 6th 2020, while she was on term time leave, contained discrepancies, omitted vital information and portrayed her as an organisational risk.  As she had served the organisation without criticism for 15 years, this caused her immense distress.  She felt that there was a deliberate attempt to tarnish her reputation among her colleagues and this adversely affected her physical and mental well-being.  When she went absent in November 2020, she said that she suffered from anxiety, resulting in hair loss and sleep deprivation.  At the disciplinary hearing on January 5th 2021, the worker said that she felt harshly treated and that her submissions were dismissed.  She perceived the process as biased and she argues that the sanction of a reprimand was unfair.  When she went out sick again on February 1st 2021, she was suffering from stress which she described as “a continuum of her struggle with the work environment.”  When she returned to work on April 22nd 2021, the original sanction of a reprimand was reduced to a caution.

Failure to Re-classify the Worker’s Absence from Ordinary Sickness to Occupational Injury

The Executive Director of HR reached a conclusion not to re-classify the worker’s absence as an occupational injury.  His conclusions are set out on page 7 above.

Concern 1:  No Decision on Culpability

Section 11.37 of the sickness absence Code provides that,

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 member.

The worker submitted that the divisional officer, who must be at the level of Chief Superintendent, submitted no report relating to “wilful default or negligence” on the part of the worker.  It appears that this determination was made by Superintendent H, who the worker never met.

Concern 2:  Reliance on Legal Advice

Mr TU submitted that the employer is relying on a definition of “injury on duty” which is based on UK legislation and case law:

“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.”

Mr TU argued that, while this definition may be influential, it is not binding in Ireland particularly with the availability of domestic law.  Sick leave entitlements in the employer’s organisation are regulated by the Public Service Management Sick Leave Regulations 2014.  The legislation governing compensation for injuries on duty covers injuries inflicted,

1.       In the performance of duties while on duty;

2.       While carrying out work associated with the job while off duty;

3.       While on duty or off duty or on leave or at any other time because of anything previously done as an employee or because of being an employee.

On behalf of the worker, Mr TU referred to the case of Deming Gao v the Commissioner of An Garda Síochána (footnote 2).  At paragraph 59 of this judgement, referring to the Garda Síochána Code 11.37, Mr Justice Coffey stated that,

“Section 11.37 of the Code in fact makes no reference to ‘injury on duty’ but instead refers to ‘personal injury’ without restriction of such injuries 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 …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.”

Concern 3:  Failure to Follow Procedures

The worker is concerned about what she perceives as the failure to follow the process set out in the relevant Code.  In the Deming Gao case which has been referred to above, the Court set out the procedure in relation to injury on duty as follows:

1.       If there is no doubt that an injury on duty occurred, then it can be so classified by a Divisional Officer without reference to an Assistant Commissioner HRM.

2.       If there is a doubt, then the Divisional Officer should refer the matter to an Assistant Commissioner HRM.

3.       Pending the classification of the injury, the absence is to be classified as ordinary illness.

4.       Upon such referral, the Assistant Commissioner HRM must seek the advice of the CMO.

5.       The CMO must take account of all the relevant information before arriving at his or her advices.

6.       The ultimate decision to be made by the Assistant Commissioner HRM must be based on a complete investigation file into the incident, management reviews and recommendations and the opinion of the CMO.

7.       If it is determined that the sickness absence is related to an injury on duty, the member’s pay is to be retrospectively restored as soon as practicable.

The Code has been amended to replace the reference to the Assistant Commissioner HRM with the Executive Director, Human Resources and People Development (Executive Director of HR).  This person is the decision-maker with regard to Code 11.37 and, Mr TU submitted that this function cannot be delegated without an amendment to the Code.

In the case of this worker’s grievance, Mr TU made the following observations:

1.       The acting Executive Director of HR relied on the recommendations of a district officer (a superintendent), rather than a divisional officer (a chief superintendent) which is not provided for in the Code;

2.       There is no notification from the divisional officer expressing any doubt regarding whether an injury on duty occurred;

3.       There is confusion regarding whether the Executive Director of HR requested any advice from the CMO;

4.       The CMO’s opinion indicates that the worker suffered from workplace stress and lacked any explanation about the underlying reasons;

5.      An investigation file was not submitted.

Appeal of the Decision

Despite a WRC recommendation in a previous case[3], there is no appeal mechanism under the employer’s Code.  The worker’s view is that the Executive Director of HR has erred in her decision, that it is not based on correct information and that it is founded on an incorrect legal precedent.  Mr TU submitted that the appeal needs to be conducted by a suitably qualified independent person.

Conclusion of the Worker’s Submission

Mr TU submitted that the worker has been treated abysmally throughout this process and that she was without fault when she was subjected to a disciplinary sanction.  When she was available for work, she excelled in her handling of the case and was commended by the relevant State agencies and by the Director of Public Prosecutions.

The worker feels that her employer has failed to adhere to their own policies and procedures which has caused her to suffer mentally and physically.  She does not know why it took so long to make a decision and they have failed to investigate the reason for her absence in a timely manner.  Ironically, Mr TU said, the worker was disciplined for an alleged failure to conduct an investigation and she was then effectively ignored when she tried to defend her position.

Mr TU submitted that the worker’s absence was not related to the disciplinary procedure but that it was caused by how she was treated by her superior.  Her absence of 12 weeks was before the disciplinary appeal was heard and was solely due to the way she was treated and falsely accused of not investigating a child-neglect case that she wasn’t aware of until June 2020.  She was advised that if she didn’t take certain actions that the case would “blow up in her face.”  While she was on term time leave, she got no support with the case.  When she returned to work, she was required to submit a report on her daily activities and her colleagues also had to report on her activities. 

On March 16th 2021, when she was on sick leave, the worker was requested to attend a meeting which was described as for “welfare purposes.”  At the meeting, Superintendent F informed her that, because she couldn’t work with her sergeant, she was coming off community policing.  Despite an assertion that there was no room for her on a different unit, the following day, an advertisement was placed for availability in all units in her division.  Mr TU said that this suggests “inconsistency and possible unfair treatment.”

Mr TU referred to the recommendation of an adjudication officer in a case with some similarities to the issue under consideration here, where the employer failed to adhere to their policies for investigating a grievance.  The adjudication officer recommended a payment of €2,000 to the worker as compensation.[4]

In addition to compensation for the delay investigating the employer’s refusal to grant a section 11.37 certificate, the worker is seeking an impartial review of that decision.  Alternatively, she asks that I, as the adjudication officer in this matter, consider the language of the sickness absence code and the interpretation provided in the Deming Gao judgement.

The employer’s submission addressed the worker’s specific complaints:

Response to Concern 1:  No Decision on Culpability

Referring to the judgement of the High Court in Deming Gao, Mr IR highlighted paragraph 9, where Mr Justice Coffey held that,

“… the issue of ‘culpability,’ which is to be decided under the section, is not whether the relevant ‘personal injury’ was suffered or sustained …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.’”

There has been no suggestion that the work-related stress that the worker claims that she suffered was due to negligence or default on her part.  There is no mention of this is the recommendation of the Head of HR on April 27th 2023 or the decision of the Executive Director of HR on June 15th 2023.  The worker’s application to have her absence classified as injury on duty wasn’t refused on the ground of wilful default or negligence and the employer does not understand how she can claim that she suffered a detriment because of the absence of such a finding.

Response to Concern 2:  Reliance on Legal Advice

Mr IR submitted that the employer is entitled to rely on its own legal advice, which the worker is not obliged to agree with.  He said that precedents such as Commissioner of Police v Stunt[5]are of persuasive authority in Ireland.  Mr IR asserted that the decision in Stunt that an officer disabled by his reaction to a disciplinary process is not entitled to an award reflects the conclusion of the Executive Director of HR that “stress attributed to the disciplinary process cannot be classified as an injury sustained in the execution of a member’s duty.”  Mr IR submitted that this was a perfectly reasonable approach.

At paragraphs 61 and 62 of the Deming Gao judgement, it was clarified that the issue of the classification of sickness absence is governed by HQ Directive 139/2010 and not by the employer’s Code 11.37.  Mr TU submitted that the conclusion of the Executive Director of HR was reasonable for a decision-maker with responsibility for distinguishing between ordinary illness and an injury on duty.  He said that the employer is entitled to operate its own procedures in this regard, subject to reasonableness and the requirements of natural justice.

Response to Concern 3:  Failure to Follow Procedures

Under this heading, Mr IR provided details of the number of workers in various categories employed in the organisation.  As the second-largest employer in the public sector, he said that delegation by senior managers such as the Executive Director of HR is inevitable.  That being said, in this case, there was no delegation, because the acting Executive Director of HR made the final decision on June 15th 2023, that the absence should remain classified as ordinary illness.  Mr IR made five specific points under this heading:

1.      The worker complains that the Executive Director of HR relied on “the recommendations of a District Officer (Superintendent H) rather than the Divisional Officer.  Mr IR said that Directive 139/2010 is clear that the decision is to be made based on the views of “management,” and not a specific post-holder. 

2.      The worker asserted that there is no notification from the Divisional Officer expressing any doubt regarding whether an injury on duty occurred.  On April 27th 2022, Chief Superintendent D forwarded correspondence to the sickness absence section from Superintendent H suggesting that “there is a doubt about the matter.”  Mr IR submitted that it is lacking in reality to assert that this does not constitute an expression of doubt. 

3.      The final decision of June 15th 2023 states that the Executive Director considered the advice of the CMO.  Whether she sought that advice personally or not is not relevant to the fairness of her decision.  The worker did not seek to introduce additional or different medical evidence.

4.      The CMO reports of May 11th 2021 and January 16th 2023 refer respectively to “certain issues in work” and “work-related matters.”  Mr IR submitted that it is not the job of an occupational health consultant to delve into the underlying reasons and that, in accordance with the 2010 Directive, such reasons, if they are relevant, are properly to be considered by the Executive Director.

5.      As to the investigation report, the Executive Director was in receipt of the written report of Inspector G on March 24th 2021, which gave an account of his meeting with the worker the previous day.  Inspector G’s report confirmed that the worker was suffering from work-related stress and her contention that this was related to disciplinary procedures.  Mr IR said that it is not understood what unfairness is alleged to have occurred or what facts are in dispute.

The employer’s submission addressed two additional matters raised by the worker:

Delay in the Process and Frustration in Providing Information

On June 9th 2023, the assistant commissioner issued a decision upholding the worker’s grievance concerning the undue delay in response to her application for a section 11.37 certificate.  That was the outcome from stage 2 of the employer’s Dispute Resolution Procedures.  The worker could have escalated the dispute to stage 3, but she did not do so.  On October 24th 2023, the worker confirmed that the grievance she submitted “in respect of the request for documentation” could be closed.

Seeking to Appeal the Decision of the Executive Director of HR

The worker is asserting that the Executive Director of HR erred in her decision not to classify the worker’s absence as injury on duty.  With the decision of the Executive Director of HR in June 2023, not to change the classification of the worker’s absence from ordinary illness, the worker has exhausted the internal procedures.  Although there is no formal policy to appeal a decision regarding the classification of an absence, the employer routinely facilitates appeals, pending the introduction of a new Sickness Absence Management Policy, which is currently being negotiated between the employer and the unions representing staff.

The employer accepts that workers must be entitled, as a matter of fairness, to an internal appeal.  Mr IR referred to the relevance of certain provisions of the Industrial Relations Acts 1946 to 2015 to the workers in this organisation since February 2020.

Mr IR submitted that the Executive Director of HR acted as an impartial adjudicator in this matter following the recommendation of the Head of HR.  She had no previous involvement in the matter, and, as a member of the senior leadership team, she is an appropriate senior officer with authority to make a final decision.

Conclusion of the Employer’s Submission

Concluding his submission, Mr IR referred to the decision of the Labour Court November 2013 in Bord Gáis Éireann and a Worker[6]where the Court stated that its role is not to take a view on the merits of a complaint or to substitute its views for those of the investigators of a dispute.  The Court saw its role as establishing if the procedures followed by the employer “conformed to the generally accepted standard of fairness and objectivity” normally followed in such cases.  Mr IR asserted that the procedures adopted by the employer in this case conformed to the generally accepted standards of fairness and objectivity.   

Mr IR said that the worker’s case that her absences constituted an injury on duty have been considered carefully by senior personnel.  By way of this referral under s.13 of the Industrial Relations Act 1969, the worker now seeks to appeal the decision of the director of HR.  Mr IR argued that the worker is asking me, as the adjudication officer, to substitute my views for those of the director of HR.

Finally, Mr IR submitted that the requirements of Statutory Instrument 146 of 2000, the Code of Practice on Grievance and Disciplinary Procedures, to the effect that the procedures for dealing with workplace grievances must comply with the principles of natural justice have also been met.  For these reasons, he asked me to recommend that the investigation of the worker’s grievance concerning the classification of her absences in accordance with Directive 139 of 2010 has been concluded.

Context

The genesis of this very protracted dispute lies in the conflict between the worker and her supervising sergeant, “Sergeant A,” concerning the date on which a case file was placed in the worker’s “in tray.”  It seems to me that, as the case file concerned the neglect of children, rather than just place the file in a tray, there was an onus on the sergeant to inform the worker that the file had been assigned to her, so that she could give it the attention it required.  The documents presented to me at the hearing show that the sergeant said that she put the file in the worker’s in tray “around March 24th 2020,” but that the worker only became aware of it on June 8th that year, following a conversation with her sergeant on June 3rd.  Everyone knows crisis that befell the world in March 2020, and the onset of the Covid-19 pandemic may have had something to do with the failure to treat this file with the urgency it deserved.

Having been warned by her sergeant that the situation would “blow up in her fact,” the worker asked for directions about how to proceed.  Between June 8th and the commencement of her term time leave on July 11th 2020, she was in touch with the mother of the children and with the social worker involved in their care.  However, she did not upload the file to the case records system and, before she went on leave, she asked for the file to be assigned to another officer for the duration of her absence.  It seems to me that, considering the risk to the children, this was a reasonable request.  On July 22nd 2020 however, Sergeant A’s supervisor, “Inspector B,” refused to re-assign the file and instructed Sergeant A to contact the social worker to apologise for the delay and to ensure that any urgent issues were addressed, pending the worker’s return from leave on September 18th.  On September 6th, just short of two weeks before the worker came back from leave, Sergeant A wrote to Inspector B and recommended that “consideration be given to discipline.”  Three days before her return from leave, Inspector B’s supervisor, “Superintendent C” wrote to “Chief Superintendent D” and expressed his view that a “serious breach of discipline could be evident.”  He asked Superintendent D to appoint a deciding officer to conduct a disciplinary investigation.  The outcome was a reprimand, issued on March 3rd 2021, which, on April 22nd 2021, was reduced to a caution.

The worker submits that she was out sick because of the distress caused by how she was portrayed by Sergeant A in her correspondence of September 6th 2020 to Inspector B, in which her failure to deal with the family case file was described as an “organisational risk.”  She was absent initially for two weeks from November 13th 2020.  A disciplinary hearing took place on January 5th 2022, which the worker claims was biased and unfair.  A short few weeks later, on February 1st, an email was circulated about public order issues at a train station and the worker felt that she was again being unfairly criticised.  She was out sick then for just over 10 weeks from February 8th until April 22nd 2021.

The worker has referred this dispute to the WRC under s.13 of the industrial Relations Act 1969.  In accordance with s.13(3), my responsibility as the adjudicator is to make a recommendation “on the merits of the dispute.”  My role is not to re-open the investigation into the worker’s grievance or to consider an alternative course of action to the one taken by the employer.   I am concerned with finding a way for this dispute to be brought to a conclusion.  I will now proceed to address the key issues that the worker has asked me to consider and to make a recommendation for a resolution.

Re-classification of the Worker’s Absence as Injury on Duty

The worker asks that I recommend that her absence for two weeks in November 2020 and for 10 weeks and three days between February and April 2021, is classified as an injury on duty, in accordance with the provisions of section 11.37 of the employer’s sickness absence code. 

Conclusions Regarding Concern 1:  No Decision on Culpability

One of the concerns the worker has about the findings of the Executive Director of HR is that no decision was reached regarding culpability for her absence.  Section 11.37 of the sickness code of absence provides that,

(1)  If a member suffers personal injury, and is rendered non-effective or otherwise, a full report of the circumstances should be submitted immediately to the member'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 Assistant Commissioner, Human Resource Management.  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 member.

(b) The Divisional Officer has a doubt about the matter. In such cases the file will be forwarded to the Assistant Commissioner, Human Resource Management for directions.

The worker is also concerned that there was no report from a chief superintendent regarding an assessment of whether the injuries suffered were as a result of “wilful default or negligence” on her part.

The issue of culpability arises when a worker is absent from work due to being injured on duty and where there is a concern that the injury may have been the fault of the worker.  None of the managers involved in the assessment of the worker’s section 11.37 application were of the opinion that she was injured on duty.  For this reason, the issue of culpability was not addressed and was not required to be addressed and there was no need to assess if the cause of her absence was due to “wilful default or negligence.”

Conclusions Regarding Concern 2:  Reliance on Legal Advice

The worker and her union object to the employer relying on the definition of “injury on duty” contained in the decision of the Court of Appeal of England and Wales in Commissioner of Police v Stunt (footnote 5).  That Court held that an injury resulting from disciplinary proceedings cannot be regarded as an injury received in the execution of duty.  I agree with the union that this precedent is not binding here.  Legal precedents carry little weight in industrial relations investigations and, while the decision of the High Court in Deming Gao is of interest, it provides no guidance towards a conclusion of this dispute.  Mr Gao was not the subject of a disciplinary investigation, but he claimed that his absence was a result of bullying.  The worker has made no such claim and I find that the precedents relied on by both sides are not useful.

Conclusions Regarding Concern 3:  Failure to Follow Procedures

Also under this heading, the worker refers to the Deming Gao judgement to support her argument that the employer did not follow the procedure set out in the Sickness Absence Code.  The relevant section from that judgement is recorded on page 9 above.  Again, while the judgement is useful, the relevant procedure for the management of sickness absence is the employer’s Directive 139 of 2010.

In accordance with the Directive, where there is a doubt regarding an injury on duty, the Executive Director of HR is the ultimate decision-maker.  In her report of June 15th 2023, the Executive Director of HR concluded that the worker’s absences should be classified as ordinary illness.  Having read her report, I am satisfied that she reached this conclusion based on the CMO reports of May 11th 2021 and January 12th 2023 and having taken account of all the relevant information including the reports of Inspector G of March 24th 2021 and Superintendent H on April 27th 2022.

Under the heading, “Injury on Duty Classification” of the Sickness Absence Code (at page 3 above), it is stated that,

“Where there is any doubt that an injury on duty occurred, Divisional Officers should refer the matter to Assistant Commissioner H.R.M…”

I understand that a chief superintendent is a divisional officer, whereas a superintendent is a district officer.  I note that, on April 27th 2022, Chief Superintendent D sent an email to the Executive Director of HR to inform her that the worker made an application for a section 11.37 certificate.  This is an unequivocal communication to the Executive Director of HR regarding a doubt about the classification of the worker’s absence.  I can see no flaw in the fact that a report was issued to the Executive Director of HR by Superintendent H and not by Chief Superintendent D or any other chief superintendent and I accept the position of the employer that the Code provides for a consideration of the views of “management” and not management at specific grades. 

Regarding the advice of the CMO to the Executive Director of HR, I am satisfied, having read her report, that the Executive Director of HR took account of the advice of the CMO.  As pointed out by Mr IR, the worker did not dispute anything in the CMO reports and did not seek to provide additional information regarding her absence due to illness.  It seems to me that the CMOs accepted at face value, the worker’s statements regarding her absence and they did not seek to contradict or challenge her assertions that she was absent due to work-related stress.

Finally, under this heading of procedures, Mr TU complained that an investigation file was not submitted to the Executive Director of HR for her consideration.  On page 1 of her report however, the Executive Director of HR lists all the sources of information (attached in five appendices) that led her to a conclusion not to classify the worker’s absence as injury on duty.  The worker has not identified any missing information that could have led to a different conclusion.

Appeal of the Decision of the Executive Director of HR

I note the position of the employer’s representative that, pending agreement with the unions regarding an appeal process, the worker is entitled to appeal the decision of the Executive Director of HR regarding the classification of her absence as ordinary illness.  It is my view however, that, in the absence of an internal appeal mechanism, the investigation of this dispute at the WRC under s.13 of the Industrial Relations Act 1969 is a sufficient appeal.

Delays in the Process

The application by the worker for a section 11.37 certificate was initiated by Inspector G in March 2021 when he made a referral for her to be examined by the CMO because she said that she was absent due to work-related stress.  There were significant delays in the consideration of the application, with the decision of the Executive Director of HR not being issued to the worker until June 26th 2023.  I note the conclusion of the assistant commissioner on June 9th 2023 that there was no reason to explain the delay.  I see no merit in my examining this any further, apart from an acknowledging of the environment at the time and the impact of Covid-19 restrictions on all workers.

Conclusion

Considering the course of events as they were presented at the hearing, it seems to me that, in June 2020, a different approach by both sides was needed to avoid the protracted dispute that followed.  I have given serious consideration to what could be done to bring this dispute to a close.  It is my view that the worker’s application to have her sick leave re-classified as injury on duty has been thoroughly considered by the employer, in accordance with the Sickness Absence Code and Directive 139 of 2010.  While there was an inordinate delay reaching a conclusion on that matter, I have concluded that the outcome is reasonable.

The worker exercised her right to appeal against the disciplinary sanction issued in March 2021 and the sanction was reduced.  Her grievance regarding the delay responding to her application for a section 11.37 certificate was effectively upheld, with the investigator finding that there was no explanation for the delay.  The worker has utilised the employer’s procedures to good effect to have her grievances addressed.  At the hearing of this matter however, she was still extremely upset, despite the original sanction being reduced and the fact that she was commended for how she handled the children at risk case when she returned from term time leave. 

I have decided not to recommend any change to the outcome of the worker’s application for a section 11.37 certificate.  I find however, that the delay dealing with her application was unreasonable, causing her further anxiety which could have been avoided and I intend to make a recommendation for compensation in that regard.

To bring this dispute to a conclusion, I recommend that the employer pays the worker compensation of €5,000, as an acknowledgement of the delay considering her application for her sick leave to be re-classified in accordance with the employer’s section 11.37 certification process.

Sick leave, work-related stress, disciplinary sanction