Worker

Employer

Anonymised Parties

A worker

A public body.

Representatives

Dermot O Brien , Worker’s Representative association

Employee Relations Bureau

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 - 00002756

12/06/2024

This complaint was received by the Workplace Relations Commission on 12th June 2024.

In all complaints heard under section 13 of the Industrial Relations Act 1969 the complainant is referred to as the Worker and the Respondent is referred to as the Employer.

Whilst every effort is made to anonymise the parties this has been difficult in the instant complaint.

Background

The Worker is a member of the national police force with 15 years’ service and has been stationed in Granard Station which is a District in the Division of Roscommon/Longford & Mayo

On May 2nd, 2021, the Worker commenced duty at 7:00 a.m. at Granard Station. He was assigned the role of Observer (passenger) in an official patrol car as directed by his supervising sergeant.

On May 2nd, 2024, the Workers colleague and the Official Driver attended his residence in Roscommon town to obtain keys so he could access his PPE which is a code requirement and also a storage compliance matter under Section 65 (2) - S.I. No. 299/2007.

Section 5.10 (2) (a)7 of the Code emphasise the duty of the employee “to make full and proper use of such equipment”

Section 5.13 (2) 8 of the Code sets out the criteria if it has to be used. The onus was on the Worker’s colleague to have the PPE in his possession while on duty in the case of it being required to fulfil his duties.

Section 65 (2) S.I. No. 299/2007 - Safety, Health and Welfare at Work (General Application) Regulations 2007 states “An employee to whom personal protective equipment is made available under these Regulations shall take all reasonable steps to ensure that such equipment is returned to storage after use by him or her”.

For the Worker’s colleague to comply he required his keys to access his PPE which the Inspector asserts in his report of November 3rd, 2021 “this action could be deemed necessary” with stated reasons.

Code 35.2 (1) grants the authority for the Chief Supt to allow patrol cars to be driven in the division/section to which members are assigned. This has no restrictions stated.

Code 35.6 12 is specific to the duties of the driver and makes no reference to the role of the Observer, which was the Worker’s role, in the  official patrol car.

The Code makes no reference to “observer duties” bar at Sections 22.19 (2)c, e13 and 27.14 (2) 14 which refer to floating or drifting mines/location of aircraft and at Section 35.24 (2)15 for a passenger to wear a safety belt.

On May 2nd, 2021, at 14.55 while traveling in the direction of Lanesboro out of Roscommon Town and returning to their district, the official patrol car was intentionally struck from behind by another motorist.

A pursuit ensued, and after a violent struggle the other motorist was arrested and conveyed to Roscommon station and subsequently charged with an offence under the Road Traffic Act for which the Worker was commended for his professionalism.

Personal Injuries were suffered by the Worker as a result of this Road Traffic Collision.

Worker’s Position

As a result of the personal injury suffered, the Worker reported unfit for duty on May 2nd , 2021 citing work-related injuries as a result of being rammed from behind while on duty and on May 2nd, 2021 and made a claim for it to be classified as “ personal injury” rather than “ordinary illness” under Code 11.3717 on August 4th, 2021

The Worker returned fit for duty on March 12th, 2022, however, the failure to deal with the Code 11.37 injury on duty application expeditiously as per HQ 139/201019 forced the complainant onto Temporary Rehabilitation Renumeration (TRR) and subsequently all his illness while unfit for duty has been classified as “Ordinary illness”. This is still impacting his current day to day presenteeism with any other illnesses since returning to duty.

An Occupational Injury Form 20 was approved and certified by Supt  on May 11th 2021 and by  Assistant Principle on May 12th, 2021 describing it as an “Official Vehicle rear ended” accident to the Health and Safety authority.

 Both senior officials affirm the Complainant was on “ Traffic duties” in an “Official Vehicle” on a “Public Road” involved in a “Road Traffic Collision” and there was no loss of control when “struck from behind”

A form submitted to Social Welfare Office dated August 23rd, 2021 by Insp  clearly indicates at Point 6(a) that the Complainant was on patrol and at 6(b) that the Complainant was authorised and permitted to do what he was doing on patrol

No claim for damages was made against the state nor will be.

An application for a Code 11.37, due to work-related personal injuries was made by the Complainant on August 4th, 2021, reapplied for on April 27th, 2022 and again on December 24th, 2022 as management failed to respond to all applications.

The Code 11.37 application was never refused by Chief Superintendent.

When pressed on a rationale for the refusal of the Code 11.37 on May 15th, 2024 Mister H, IRO, reported back to the Complainant on behalf of the Chief Supt “Chief Supt  was not satisfied that the injuries were not due to wilful default or negligence on your part, in that you were out of your district without seeking permission which you should not have done. This resulted in you being in a location where the incident occurred resulting in the injuries sustained. This opinion was based on the 22 November 2022 Form IA 12.”

The statement contains a double negative: "was not satisfied that the injuries were not due to wilful default," which creates confusion and makes the sentence totally unclear. In formal English double negatives are incorrect and should be avoided unless one is attempting to be cryptic and frustrating.

It therefore holds if Chief Supt had no doubt about wilful default or neglect he must issue a Code 11.37, however, if he had a doubt then he was required to forward the Worker’s file to the executive director HR&PD for her direction. The rationale given in 2024 leads to neither state..

The relevant Code Section 11.37 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 for directions. 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 Assistant Commissioner, Human Resource Management for directions.

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

The Supreme Court in the decision of John Kelly v. An Garda Commissioner [2013] IESC 15826 quashed the decision of the Garda disciplinary appeals board for want of reasons, and in his judgment, O’Donnell J. accepted a general position that “reasons are required as a matter of the general law” 

Mallak v. Minister for Justice, Equality and Law Reform [2012] IESC 5927, Fennelly J. stated at para. 74 as follows: -'The developing jurisprudence of our own courts provides compelling evidence that, at this point, it must be unusual for a decision maker to be permitted to refuse to give reasons”. 

The Code at Chapter 11 does not provide for an appeal of a decision to refuse a Code 11.37 certificate. This is wholly inadequate and is not consistent with best practice and fair procedures.

 Insp  was appointed to investigate the personal injury RTC as part of HQ circular 139/201028 and submitted same to Supt in Longford on August 13th 2021 stating that the vehicle was well outside the Granard District and the Complainant was the observer and his colleague was driving and within that context he clearly asserts that he “cannot see how any such actions would apply to the Worker  in this case” 

The Investigation report outcome reported to the Executive Director HR&PD does not support the stance taken by the Chief superintendent and to the contrary states “[REDACTED] but I cannot see how any such actions would apply to the Worker in this case. I am recommending that Chief Superintendent issue an 11.37 certificate that the Worker’s injuries were not due to wilful default or negligence”

Public Service Management Sick Leave Regulations 2014 govern sick leave entitlements in (redacted) and the application of the said regulations to (redacted) is governed by the Chapter 11 of the Code31 ('the Code') as supplemented and amended by HQ Directive 139/2010

Under Chapter 11, members 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 member’s ordinary sick record being unaffected by such absence.

 The relevant Code Section 11.37 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 for directions. 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 Assistant Commissioner, Human Resource Management for directions.

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

In addition, HQ Directive 139/201034 is also relevant, it states that; under heading “‘Investigations-Where members report non-effective for duty as a result of an injury on duty or work related stress, a thorough investigation will be carried out immediately and the outcome reported to Assistant Commissioner, HRM for the attention of the C.M.O. the member concerned shall be advised of the Employee Assistance service , Peer Support, and any other support deemed necessary. Local management shall address the issues causing the members stress”. Said investigation was initiated by force management.

In the case of Deming Gao v The Commissioner of An Garda Siochana [2018] IEHC At paragraph 5936 Mr Justice Coffey holds that 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”

It therefore holds Chief Supt by not forwarding the investigation file to the Exec Dir HR&PD according to Justice Coffey in [2018] IEHC Paragraph 59 it stands to hold Chief Supt  could not have found “culpability” by any other policy or procedure against the Complainant and said Code 11.37 should have been granted.

Yet on November 26th, 2021 Chief Supt enquired as to the 11.37 “application bearing in mind Insp J’s” views” while also referencing the fact that “any decision in relation to the 11.37 will await conclusion of the disciplinary proceeding” 

In [2018] IEHC at Paragraph 75 Justice Coffey when referring to Paragraph 74 asserts “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”.

Insp J’s report of November 3rd, 2021, where he reports his views as follows “I did query the necessity to attend Roscommon District …. To obtain keys for his locker to access PPE. On further inspection this action could be deemed necessary due to the following” and lists the reasons while commending the Complainant and his colleague for their professionalism and excellent arrest.

At Paragraph 59 Justice Coffey in [2018] IEHC41 asserts to solely “injuries suffered or sustained in the course of duty” and neither the Code nor the HQ Circular references any breach of any Garda policy as an entitlement to refuse a Code 11.37 outside the bar of Culpability due to wilful fault or neglect of which neither was proven in any investigation.

Insp J’s investigation report42 has taken away the bar of culpability, wilful fault and neglect when he states “while the Granard community vehicle was well outside the Granard district, it was [REDACTED] who was driving and the Worker was the observer. Both members reacted to the hit and run RTC in a professional manner and affected an arrest in difficult circumstances and an offender is before the courts. [REDACTED] but I cannot see how any such actions would apply to the Worker in this case. I am recommending that Chief Superintendent issue an 11.37 certificate that the Worker’s injuries were not due to wilful default or negligence”.

Conclusion

The Code solely references the term 'personal injury' without limiting it to injuries incurred during duty.

Chief Supt’s decision was imparted to the Complainant on May 15th, 2024, some 1,025 days after the accident occurred and in regard to the classification of the Claimant’s absence and has held that it is ‘ordinary illness’ and not an ‘injury on duty’.

Management are entitled to make a decision, however, that decision must be based on the Code and relevant HQ Directives which the Worker asserts were predominantly ignored.

A definition from English Law in the case of Commissioner of Police v Stunt [2001] EWCA is one which the state heavily rely on while the WRC has found on same in IR - SC - 0000034445 where the AO states “ 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 rerunning 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”

It is clear from the case law of the superior courts what constitutes fair procedures and that the central tenet of natural justice in that the outcome of the agreed procedures not being applied has resulted in an unfairness to the complainant due to an unfair decision being applied when no authority existed for the Chief Superintendent to do so.

The Complainant respectfully submits in this case that when there are established procedures in place for the purposes of making an administrative decision relating to personal injuries then the employee is entitled to reliance that his employer will abide by their own instructions.

 In this case we are respectfully stating management failed to adhere the Chapter 11 of the Code, its own HQ Directive 139/201047 and the decision of the High Court to which they were the respondent.

Labour Court Decision LCR 2274949 held “The Court cannot tell an Employer that they are not free to issue legitimate instructions. In employments, such as this, where collective bargaining applies, any instructions are open to be discussed with the relevant union and, if necessary, the State’s industrial relations machinery is available to assist in the resolution of any disputes.”

In the present case the employer did not engage with the Representative Bodies allowing for changes to the collective agreements and made a unilateral decision to deviate from Section 11 of the Code50, HQ directive 139/201051 and the decision of the High Court in Deming Gao52 in respect of the process to be followed for dealing with injuries on duty.

It is submitted that on all the facts presented and the generally held view of the courts in regard to fair procedures and due process, that the Claimant has clearly exhibited that the procedures used interfered with and diminished his right to fair procedures and that the process used resulted in an unfair decision.

The Complainant seeks retrospection of the losses including attendance records and award by way of compensation.

The claimant has brought this case in good faith and requests a determination affirming the complaint is well founded.

INTRODUCTION

1. The employer operates an injury on duty scheme for members of the force. This scheme is commonly referred to as ’11.37’ after the applicable paragraph of the Code.

2. Sick leave entitlements, like those of other public servants, are regulated by the Public Service Management Sick Leave Regulations 2014. The Regulations provide for a basic entitlement to a maximum of 92 days sick leave on full pay in a year, followed by a maximum of 91 days sick leave on half pay, subject to a maximum of 183 days paid sick leave in a rolling four year period.

3. The application of the Regulations to the Force is governed by the Code as supplemented and amended by HQ Directive 139/2010. The Directive makes a distinction between ‘injury on duty’ and ‘ordinary illness’, the significance being that a member's absence due to “injury on duty” may entitle him or 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’.

4. Section 11.37 of the Code sets out the manner in which an 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 Resources Management for

directions.

5. The Directive provides for a marginal note to be made at section 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 Assistant Commissioner, H.R.M., who will seek the advices of the [Chief Medical Officer]. 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 on 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.

6. The police post of Assistant Commissioner HRM has been abolished and replaced with the civil service post of Executive Director HRPD.

THE PRESENT CASE

Applications for injury on duty benefit

7. The Worker sought to appeal the decision of the Divisional Officer in respect of two distinct applications for injury on duty benefit, one pertaining to an incident of 10 October 2018 of electric shock from a radio, the other of 2 May 2021 concerning a road traffic collision.

8. The electric shock incident was investigated by Inspector DJ. His report of 22 October 2019 found that the worker’s actions (namely continuing to charge the radio directly from the mains rather than via a supplied charging unit) had contributed to the incident. The Inspector did not recommend that injury on duty benefit should apply and that recommendation was supported by Superintendent SB on 30 October 2019.

9. The worker was later found in breach of discipline in connection with the road traffic collision and was issued Advice pursuant to regulation 10 of the Employer’s (Discipline)

Regulations 2007, SI 214/2007, on 2 December 2022. (Regulation 10 concerns ‘informal

resolution of minor breaches.) The worker did not seek review of that decision.

10. As per Code 11.37(1)(a), the Divisional Officer denied the applications as he was not satisfied that the injuries were not caused by the worker’s ‘wilful default or negligence’.

Grievances

11. In June 2022, the worker sought to use the internal grievance procedures (the Disputes

Resolution Procedures, or DRP) concerning non-award of injury on duty benefit. (It is the

position of the employer that the DRP is inapplicable to decisions concerning injury on duty

benefit, as these ‘do not apply to matters arising in specific arenas where the Employer has in place significant policies and procedures for the appropriate management of certain employee issues.)

12. The worker was advised on 21 July 2022 of an alternative avenue for the hearing of a grievance in respect of the electric shock incident, and that no decision had yet been made concerning the road traffic collision, as ‘another process’ was ongoing in respect of that matter.

13. The grievance was resubmitted on 17 March 2023 to the regional Assistant Commissioner. A reply issued on 20 March. The worker was on 20 April again advised of the alternative avenue for the hearing of a grievance, this time in respect of both incidents (as the other ‘process’, namely the disciplinary, had concluded).

14. The grievance was resubmitted again on 27 December 2023, again to the regional Assistant Commissioner. The worker was advised on 28 December 2023 in similar manner as hitherto. The worker sent further correspondence to the Assistant Commissioner on the same day, which was replied to on 29 December.

15. On 4 April 2024, the grievance was again resubmitted, this time by the worker’s representative association.

Reasoning and rationale

16. By e-mail of 15 April 2024, the association wrote to the employer saying that:

The difficulty that (the Worker) has in relation to this issue is that he was given no reasoning nor rationale as to why his Code 11.37 application was being refused by the Chief [S]superintendent thus rendering any appeal futile as he has no grounds whatsoever to appeal the matter outside of the grounds that no rationale was given.

17. The employer replied on 15 May 2024 setting out ‘for the sake of completeness’

reasons for decision and outlining again the available appeal avenue. Further correspondence

followed on 27 May 2024.

Referral

18. The worker did not appeal. The present dispute was referred to the Workplace

Relations Commission on 12 June 2024.

MAIN ARGUMENTS

‘lack of an internal appeal mechanism’

19. It is not understood how the worker can complain of a lack of an internal appeal mechanism when he has been informed several times as to how he may appeal.

20. It is true that there is at present no formalised written policy providing for the right of

 members to appeal a decision regarding injury on duty certification in the Code or the Directive. However, it is the view of the employer that members should be entitled, as a matter of natural justice and fairness, to an internal appeal concerning such decisions.

21. The HR Directorate therefore routinely facilitated appeals for members pending the introduction of a new Sick Absence Management Policy (which will clearly set out the new procedures in regard to injury on duty certification) in the manner communicated to the worker. (The new Policy is presently in a consultation process with the appropriate representative associations.)

22. Had the worker used the mechanism, an appeal would have been sent to the Executive

Director, who would have acted as an impartial adjudicator (having had no previous involvement in the matter), and who is the holder of an appropriately senior office to make a final decision. Moreover, the worker would thereafter have exhausted the available internal procedure and been quite entitled to refer a dispute under the Industrial Relations Act 1969 if he wished.

23. It is submitted that the LRC Code of Practice on Grievance & Disciplinary Procedures

(SI 146 of 2000) requires that ‘that an internal appeal mechanism [be] available’, not that an

internal appeal mechanism of the worker’s choosing be available.

24. It is well established that the state third party bodies have no role in investigating industrial relations disputes that have not been fully addressed at local level: the Labour Court stated in Geoghegan t/A TAPS & A Worker INT1014 (August 2010) that it was ‘not prepared to insert itself into the procedural process in a situation where the dispute procedures have been bypassed.’

24. A significant tension exists between the worker’s complaint that no appeal mechanism was in place and his complaint that the Code was not adhered to.

Rationale ‘unintelligible and indeterminable’

25. It is submitted that the reasons for decision set out in the employer’s letter of 15 May 2024 are neither unintelligible nor indeterminable but were in fact perfectly clear.

26. In any event, a failure to give intelligible reasons for decision would in itself have been a reason to appeal to a higher authority.

Failure to adhere to Code

27. The Labour Court has stated in another matter that it is not its function ‘to interpret and determine entitlements under the Code’ (LCR23005 (5 July 2024)). It is respectfully submitted that this is not the function of an Adjudication Officer either.

28. The Code and the Directive contain no appeal mechanism from a decision of a Divisional Officer under Code 11.37(1)(a). Had the employer stuck rigidly to the Code in this respect, no appeal would have been possible. Given that the worker has declined to use the appeal mechanism offered, it is not understood how this ‘failure to adhere to the Code’ has disadvantaged him in any way.

29. If the worker has identified flaws in the decision-making process in respect of his application for injury on duty benefit, he should use the appeal mechanism offered to him, in order to permit the employer, the opportunity to address same.

RECOMMENDATION SOUGHT

30. The employer seeks a recommendation that the worker either engage with the appeal mechanism outlined to him to process this matter or regard the matter as closed.

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

I would initially address one point made by the Employer’s representative when he states:

The Labour Court has stated in another matter that it is not its function ‘to interpret and determine entitlements under the Code’ (LCR23005 ,5 July 2024)). It is respectfully submitted that this is not the function of an Adjudication Officer either.

In relation to my function under section 13 of the Industrial Relations Act, 1969, I make a Recommendation that is not legally enforceable, unlike the Labour Court who would issue a Determination.

The fact that there is no formalised written policy providing for the right of members to appeal a decision regarding injury on duty certification in the Code or the Directive, I’m sure will be addressed during the current ongoing discussions.

At this point I would recommend that the Worker utilises the appeal opportunity being offered by the Employer and that is to appeal to the HR Directorate. The HR Directorate should accept that this process has to date taken far too long to complete and make every effort to have the appeal and findings concluded by the end of December 2024.