Worker

Employer

Anonymised Parties

A Worker

A Policing Service

Representatives

Representative Association

Industrial Relations Officer  

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 - 00000788

20/10/2022

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

IR - SC - 00000789

20/10/2022

The Worker referred two disputes under the Industrial Relations Act 1969 to the Director General on 20 October 2022.

In essence, the first claim relates to the alleged procedural failures regarding the classification of the Worker’s illness and the second relates to the matter of transfer, the alleged removal of reasonable accommodations, the treatment by the Worker’s superior (three ranks above the Worker), and the internal Dispute Resolution Process.

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 this recommendation. That matter, being a High Court judicial review case, is already in the public domain.

These disputes centre around the treatment of the Worker in the workplace with the changes to her working environment and the detrimental effects that it had on her, the lack of procedural aspects around the issuing of a certificate under Code 11.37 and the appealing of said decision when it is in the negative.

Background

The Worker has been based in Location A since 2006. The Worker was in fulltime employment with the Employer, however, since 22 September 2020, she is on work related sick leave.

On 23 of November 2010, the Worker was involved in a serious head on collision whilst on duty suffering career altering injuries. Upon returning to duty in July 2011 working 9am to 4.30pm, the Worker was under the supervision of the Chief Medical Officer (‘CMO’) where supports were put in place including non-confrontational duties, posture breaks, no driving during lighting up hours (due to diagnosed PTSD).

The injuries sustained as a result of the injury on duty were substantial and the effects are long lasting. A list of the continuing issues which affect the Worker was furnished at the hearing.

The Worker, following 5 years of review by the Department of Social Protection, was deemed to have suffered nett “loss of faculty” of 40% in 2015 as a result of her injury on duty in 2010.

The Worker became pregnant in 2014 and, on medical advice, was recommended to come off pain relief medication (as a result of her injury on duty in 2010) and as a result of same, had to report sick and unfit for duty for approximately 6 weeks between 6 January 2014 and 6 March 2014. This was reported by the Worker as injury on duty as it was a direct result of the road traffic collision in 2010, which is a different category of sickness to ordinary illness and the Worker would be due allowances for same.

Whilst in hospital in May 2014 with serious pregnancy complications, a notification was sent to the Worker’s home address from the Employer stating that a review of her sickness and duties were undertaken and she was deemed to be fit for duty, with no mention of restricted/non-confrontational duties which she had been previously afforded in line with CMO advices. The correspondence also stated that her application for category of illness in relation to the dates mentioned previously were still to be determined.

The Worker’s injury on duty for the dates mentioned were only approved for payment in January 2022 by the Employer. She has not received the monies owed.

The Worker took unpaid maternity leave from 28 November 2014 to 20 April 2015 and went on carer’s leave from 29 April 2015 to 30 April 2017, during which she worked the allowed 15 hours a week at Location A. From 2017 onwards, under the care of her consultant psychiatrist and a lengthy period of cognitive behaviour therapy, the Worker got back to driving in the dark but not a far distance. The distance from home to Location A was 15 - 20 minutes door to door, it was all the Worker could manage. This meant that she was also back on the three-relief, non-core, including 4pm to 4am shifts. The workplace allowed posture breaks as needed and all duties were non-confrontational.

In April 2017 and November 2017, the Worker was referred to the CMO. In April 2017 the CMO was happy for the Worker to continue her duties as was previously directed. The Worker addressed the correspondence received from HRM while in hospital. The CMO completely distanced himself from it and was again happy that if “it wasn’t broke not to fix it”, the Worker was present at work, willing to work and the supports that were in place were working for the Worker. During this period, the Worker was also referred to an external consultant psychiatrist for an opinion. Again, after which the CMO was happy to leave her situation as it was.

On 28 January 2020 and again on 6 February 2020, at a meeting with Mr R (three ranks above the Worker), the subject of a transfer to Location B was discussed with the Worker. The Worker explained fully the opinion of the CMO and how her current working environment and location was working. Her own GP and consultant were also in agreement with the CMO and that the supports and duties within Location A were beneficial to her welfare. At the second meeting, Mr R outlined further duties that he expected the Worker to carry out and that she must justify her position. Again, it was pointed out to Mr R that some of these duties did not comply with non-confrontational duties.

These meetings caused the Worker great stress and to seek the assistance of the Employer’s welfare officer along with her own GP. The Worker could not understand why she was now being questioned in relation to her work and the working environment which was agreed and directed by the CMO considering her medical situation.

In March 2020, the Worker was requested to move to Location B to assist due to Covid-19. The Worker agreed to this request on the basis that she would remain on the same unit and her supports would remain in place.

The Worker worked in Location B from 1 April 2020. Due to the ongoing situation with Covid, the Worker had to change her work arrangements to 12-hour shifts finishing night shifts at 4am which resulted in increased stress and headaches. As she was working across 2 units, she was not able to avail of the proper reliefs or posture breaks. Whilst the Worker was aware of the national issue of Covid, she was also aware that the move was temporary and she would be returning to Location A where her supports would be in place. As her health was in decline, the Worker was preparing to request the move back to her home location. The extra travelling at night was having a profound negative effect on the Worker. Travel to Location A was manageable because the Worker was then able to perform her physio exercises and take posture breaks to balance and counteract the effects of the tension/pain from driving that short distance at night. However, the move to Location B negated the ability to counteract the effects, which were more severe, because of being assigned to a busy post (front desk/phones) and lack of relief.

On 1 August 2020, the Worker was informed by a colleague that her name had appeared in a HR bulletin transferring her from Location A to Location C. She spoke to her superior (one rank above the Worker) and was informed that Mr R (three ranks above the Worker) was on annual leave but this was probably a mistake. The Worker had never requested a transfer or been notified of one. To her amazement, she again appeared on HR Bulletin on 28 August 2020 transferring her to Location B.

IR - SC – 00000788

Classification of the Worker’s illness – Code 11.37

The Worker feels she has been severely prejudiced by the failure to provide any guidance, clarity or policy. This has been evidenced in the lack of engagement by HRM with the CMO and the Worker herself.

On 21 April 2021, the Head of the HR Directorate (Mr E) made a negative finding regarding the Worker’s initial application under Code 11.37 which he had no authority do so. In January 2022 the Worker was informed that she should appeal the decision of the Head of the HR Directorate back to the Head of the HR Directorate despite the fact that no appeal procedure or policy existed within the Employer organisation. In essence the Worker, in January 2022, was placed in a position where she was appealing a decision to refuse her a certificate in accordance with Code 11.37 back to the person who (a) refused her initial application and (b) should not have made that decision in the first instance. The Worker’s initial Code 11.37 application was made through the appropriate channels to the person who should have made a decision on her file in the first instance, the Executive Director HR & PD in accordance with relevant circular. However, the abdication of responsibilities by the Executive Director HR & PD to the Head of the HR Directorate has placed the Worker in a position with no procedural appeals process in place. Instead, the Employer is relying on the whole process being overseen by the Head of the HR Directorate being “the Judge in his own court” despite having no authority to do so.

Procedurally the application made by the Worker for a certificate under Code 11.37 has been flawed from the beginning.

Sickness investigation and 11.37 decision issues

The Worker reported sick and unfit for duty on 22 September 2020 due to work-related stress. The relevant code applies in such circumstance.

In addition, and in conjunction with the relevant Directive, Divisional Officers should refer the matter to a person five ranks above the Worker, HRM, who will seek the advices of the CMO. The CMO will take into account all relevant information in 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 opinion of the CMO.

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

Where a worker is to be deemed to be in compliance with Code 11.37 and their injury or sickness is work related, the worker would be entitled to have their pay continued as normal.

Following the Freedom of Information request in June 2021 (fully disclosed to the Worker on 7 October 2022), it transpired that the person two ranks above the Worker was appointed by acting person five ranks above the Worker to investigate her absence on Mr R’s recommendation.

The Worker submits that it was highly irregular that this appointment did in fact occur, which in essence, was the person three ranks above the Worker nominating the person two ranks above the Worker to investigate the matter to which he was central. One could argue that this nomination and appointment was contrary to the principle that no one should be a judge in their own cause.

The Worker, having met with the person two ranks above her on 6 October 2020 and having a conversation, not having been asked to supply a report, nor having sight of the report subsequently made by the person two ranks above her, received correspondence from the Head of HR Directorate on 22 April 2021, informing her of his decision not to grant certificate 11.37 and her absence to be recorded as ordinary illness.

The Head of HR Directorate based his decision on the report of the person two ranks above the Worker dated 12 November 2020, the report of the person three ranks above the Worker dated 23 September 2020 and the advices of the CMO dated 9 March 2021.

The Head of HR Directorate made reference to the reports and noted that the Worker refused the offer of a mediation meeting with her supervisor (the person three ranks above her) and refused a suggestion by the person two ranks above her regarding optional move to a nonconfrontational role in a named location. This information is contested by the Worker. The Worker, having only seen the report of the person two ranks above her into her sick absence almost 2 years after the meeting they had, maintains this is not a correct version of the conversation they had. The Worker was not provided with an opportunity to provide a report nor was she asked to agree or contest the minutes of that meeting by the person two ranks above her after the fact before the report was submitted by the Employer’s management.

The Worker’s work-related stress was in essence, in relation to the workplace supports given to her by CMO and removed by the person three ranks above her and her appearance on two transfer lists without any consultation.

In his decision of 1 April 2021, the Head of HR Directorate also states that no complaint had been made against the person three ranks above the Worker. This was clarified in later correspondence by the Worker on 3 May 2021. The Worker had submitted her grievance complaint on 13 April 2021 in relation her transfer and her issues involving the person three ranks above her. The Worker sought responses to her correspondence to the Head of HR Directorate decision. However, again there was a complete breakdown in communication and whilst the Head of HR Directorate responded with a letter dated 29 June 2021 to the Employer’s local management, this was not relayed to the Worker until 27 January 2022. The Worker was advised to appeal the original decision if she so wished back to the Head of HR Directorate, the same person who refused her initial application.

In his decision of 1 April 2021 and 29 June 2021, the Head of HR Directorate referred to advices from the CMO of 9 March 21 and 18 May 21. There is no information in these reports that state the Worker’s sickness was not work-related. In fact, in the CMO report of 18 May 2021, it is the OHP fitness decision that the Worker is “Deemed temporarily not in a position to sustain regular attendance and render effective service in the context of reasonably foreseeable decompensation in her established medical condition related to socio occupational factors of concern presented in this case. This is without prejudice to ongoing follow-up by her treating specialist.” In essence, this is the CMO deeming the Worker not fit for duty due to the socio-occupational factors in the workplace. In all the CMO reports that have been provided, the CMO has not identified any other factor contributing to the Worker’ illness.

In the forwarding of the Worker’s file, there was no information or report referred to in which the person four ranks above the Worker made his original decision to forward same as he had a doubt, which is the only reason the file could be forwarded to HRM as per the Code. The Head of HR Directorate makes no reference to a decision or a recommendation of the person four ranks above the Worker.

Decision on Code 11.37 application - issues

The Head of HR Directorate is not the Executive Director of Human Resources and People Development nor was he ever acting as the Executive Director of Human Resources and People Development. The Executive Director Human Resources and People Development is a specific person who is the decision maker and that function cannot be delegated without an amendment to the Code.

In the case of Deming Gao v The Commissioner of An Garda Siochana [2018] IEHC 244 the Court set out the procedure in respect of injury on duty 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 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 referral, the Assistant Commissioner, HRM must seek the advice of the CMO;

(5)    The CMO 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:

(a)    A complete investigation file into the incident;

(b)    Management views and recommendations;

(c)     The assessment and opinion of the CMO;

(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.

From the CMO reports available, there is no medical opinion stating the absence of the Worker was not work related, there is only reference to the Worker being deemed temporarily not in a position to sustain regular attendance and render effective service in the context of reasonably foreseeable decompensation in her established medical condition related to socio-occupational factors of concern presented in this case.

A complete investigation file was not completed as there was no input from the Worker apart from a general conversation with the person two ranks above her. There is also a lack of recommendations or views of the person four ranks above the Worker in the division.

In Deming Gao v The Commissioner of An Garda Siochana (2018) IEHC 244 at paragraph 59 Mr Justice Costello 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”

There is no evidence provided that the “personal injury” of the Worker in relation to her sick absence was due to wilful default or negligence on her part. There were no records referred to or provided by the Head of HR Directorate to suggest that the person four ranks above the Worker had a doubt or that there was wilful default or negligence on the part of the Worker regarding her absence.

Appeal

Following on from her correspondence from the Head of HR Directorate and the Worker’s reply on 3 May 2021, there was no correspondence received from the Employer until the email on 27 January 2022 informing her of the Head of HR Directorate reply of June the previous year. The Worker was advised that if she wished to appeal “she should forward her appeal through the channels for onwards transmission to [the Head of] HR Directorate.”

The Worker was in a situation that she now had to appeal the decision of the Head of HR Directorate back to him. The Worker did appeal as per the direction in her correspondence of 18 February 2022.

To date, the Worker has received no reply to this correspondence or to the follow up correspondence dated 4 July 2022, 5 August 2022, 9 February 2024 and 14 February 2024 which had a detrimental effect on her mental health and wellbeing. She has not been awarded an 11.37 certificate nor has either her original application or her appeal being adjudicated upon in line with policy.

This has led to her facing the detrimental situation of further stress and dire financial consequences as a result of her removal from payroll and suspension of service.

It was confirmed at the hearing that the Worker never received the decision of the appeal until the time of the Employer’s submissions to the WRC.

Conclusion

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 is detrimental to the Worker.

From the correspondence from the Head of HR Directorate dated 1 April 2021 it is evident that the procedures were not followed in respect of the Worker. The Head of HR Directorate had no authority to make a decision as set out in the Code and the relevant directive in addition to the findings in Deming Gao v The Commissioner of An Garda Siochana [2018] IEHC 2445.

The Worker points to clear issues with the nomination and appointment of the person two ranks above her who was nominated by the person three ranks above her, and by her own admission to the Worker on the 6 November 2020 had worked with him previously.

The Worker points to the catastrophic consequences for her financially and medically in the clear breaches of the Employer’s policy in relation to her sick absence categorisation.

The Worker was directed to appeal the decision of the Head of HR Directorate, a process which simply does not exist and to this date, has received no correspondence in relation to same. The Worker refers to Workplace Relations Commission Adjudication recommendation IR-SC-000009766 dated 20 June 2023 where the Adjudication Officer held:

 “The parties agreed that there was no written appeals procedure in place. It was noted that steps have been taken towards setting out an agreed written procedure regarding an appeals procedure. The worker’s representative sought to have matters decided at a level above the decision-maker, but the employer’s representative suggested that this may cause difficulties as there were relatively few staff members at a level above the decision-maker. Having considered matters, I am satisfied that the important issue is that the appeals decision-maker be independent of the initial decision and have all of the material upon which the original decision was based available to him or her.”

In the above case, it was agreed by this Employer that there was no appeal process currently in existence, yet in the case of the Worker, the Worker is being directed back to the Head of HR Directorate to make a decision who has no authority in the first instance. The above recommendation was issued in June 2023, there has been no agreed policy to date.

The Worker is seeking that her sick absence is classed as an injury on duty and that she be restored to payroll under the injury on duty classification. The Worker is seeking that the payment is backdated to when the injury occurred. She is also seeking compensation in respect of the losses suffered as a result of her being incorrectly classified and the failure of the Employer to follow their own set procedures. The Worker further seeks a confirmation from the Employer that upon returning to the workplace, a consultation is directed with the Chief Medical Officer and any accommodations and supports advised by him are honoured by the Employer.

IR - SC – 00000789

Reasonable accommodation / Transfer issues / Dispute Resolution Process

Following the injury on 23 November 2010, the CMO issued a number of continuous recommendations: restricted/non-confrontational duties, posture breaks and restricted driving at night. The CMO recommended these supports be put in place for her return to work. They have been regularly reviewed by the CMO and various persons three ranks above the Worker who have come and gone over the years and the recommendations have always remained in place. They were not a ‘local arrangement’ but recommendations by the CMO to reasonably accommodate the Worker in the workplace. After five years of review by the Department of Social Protection, the Worker was deemed to have suffered nett ‘loss of faculty’ of 40%.

In 2014, HRM endeavoured to deem the Worker fit for full duties by overriding the CMO’s recommendations. On 24 January 2014 the Divisional Officer was informed by HRM (a person five ranks above the Worker) that the Worker should have reverted to normal duties with safeguards in place. This was at total odds to the CMO’s recommendations. The CMO did not recommend her return to full duties and he further asserted that the recommendations remain as is on 4 April 2017, on 10 November 2017, following referral by CMO to an independent Specialist Advisor on 9 May 2017, and again by CMO on 5 November 2018.

In January 2020 the person three ranks above the Worker informed her that he had to justify her position to the person four ranks above her. This had never occurred previously nor since her injury on duty. No copy of any correspondence whatsoever from the person four ranks above the Worker was furnished in relation to this request “to justify her position”.

On 28 March 2020, the Worker was requested to help out at Location B due to Covid. She agreed with the Employer, in advance of the move, that it was to be temporary for a period of three months beginning in April 2020, her reasonable accommodations recommended by the CMO were to remain intact, she was to stay on the unit and her parental leave was not to be affected. However, on 30 March 2020 the Employer reneged on the agreement, and she was moved to another unit. Her reasonable accommodations did not remain intact, and this came to light when she moved to Location B.

As it was only for three months, the Worker attempted to deal with the lack of accommodation for her injuries and PTSD. The accommodations that were removed were as follows: put in a position in having to explain to new colleagues as to why she couldn’t deal with certain duties, unable to take posture breaks as there was no reliefs given regularly due to Covid restrictions, unable to take walks also due to the same restrictions on reliefs and personnel, there was relentless pressure placed certain duties while no relevant training had been provided, being placed on certain duties raised stress levels on difficulties around right hand fine motor skills, driving to Location B increased the Worker’s journey by a further forty minutes on a road that had more heavy goods vehicles which increased the intensity of her PTSD resulting in an increased journey time.

On 1 August 2020, without request, the Worker appeared on a transfer bulletin to Location C. She presumed this was a mistake as she had not requested a transfer. On 29 August 2020, she then appeared on another bulletin transferring permanently to Location B. This was an unrequested transfer and she appealed same and did not receive any replies to her appeal when she had requested its status. As a result of this unrequested transfer and the removal of her reasonable accommodations her stress levels reached a point at which she became extremely ill in the workplace with nauseousness and constant headaches, her sleep pattern was also severely affected. As a result, the Worker was forced, for health reasons, to report unfit for duty with work related stress on 22 September 2020. Two weeks later the person two ranks above the Worker was appointed to investigate the work related stress and during the course of the investigation it came to light that she had worked with the person three ranks above the Worker and never declared this conflict of interest until the end of the two hour conversation. She then proceeded to report back on the matter to the Divisional Officer. The person two ranks above the Worker found that the Worker should be referred back to the CMO, that the complaint was a type of ‘personality clash’ between the Worker and the person three ranks above her, and that the Worker refused mediation. The report, which was eventually received on 6 October 2022, some two years after the Worker reported unfit for duty due to stress in the workplace, did not address the issues that had been raised by the Worker in relation to bullying and discrimination. The report was only furnished after a freedom of information request was made by the Worker. As a result of the non-furnishing of the report, when finalised, the Worker was denied the opportunity to appeal any element of the policy.

When the Worker was referred back to the CMO on 4 March 2021, the CMO began reading a report that had been furnished by the District Officer and the person two ranks above the Worker. The Worker challenged the contents of the reports and stated the contents were incorrect. Another appointment occurred on 12 May 2021, and it resulted in the Worker remaining unfit for duty due to socio-occupational factors.

The Worker sought a copy of the reports for clarification on matters including her refusal to mediate. She was not furnished with a copy of said report despite her request. As a result of this report the Worker was deemed to be absent on ordinary illness and her wages were reduced to half pay. Then in February 2021, she was fully removed from the payroll and her service suspended as her sick leave had exceeded 183 days. The Worker was placed on Temporary Rehabilitation Renumeration. A certificate under 11.37 of the Code was sought which would have deemed her not responsible for her absence due to work related stress, injury on duty. This was refused by the Head of the HR Directorate who had no authority to do so.

A grievance, under the dispute resolution procedures, was raised by the Worker in relation to her unrequested transfer and the removal of her accommodations and the person four ranks above her informed her that her grievances were upheld in full. The Worker took this that all her grievances were upheld. No report was given to her and when one was requested by her, she was informed that the report had gone with the file to HRM. In essence the Worker, as a result of the adverse treatment meted out to her by the person three ranks above her, upon her agreed temporary move to Location B found her reasonable accommodations removed and the protocols agreed upon in advance of her move were reneged upon. This has resulted in a deterioration in her health, a significant loss of wages, length of service and the removal of her reasonable accommodations which the Worker relied upon to conduct her duties which in turn allowed her to earn her pay and allowances.

Transfer Issues

Transfers within the Employer are governed by the relevant Code. Specifically, the Code provides that members of the Employer organisation directed on unrequested transfer (other than those on promotion or appointment) should be notified in advance of the transfer and the reason for such transfer. This did not happen in the Worker’s case. She was not contacted by any supervisor in relation to such a move.

The Worker appealed her transfer and aside from one email from Mr R (three ranks above) in relation to the section of appeal to be used, she received no further reply to her transfer appeal.

Due to the actions of the Employer and the lack of any clarity around the transfer issues and the clear disregard for her injury supports which were part of her terms and conditions as set out with CMO, the Worker was becoming very unwell in the workplace and reported sick and unfit for duty on 22 September 2020. She visited her GP the following day and was certified unfit for duty due to work related stress.

Despite numerous requests for an update on her situation within the workplace and transfer, the Worker received no correspondence in relation to same. Reminders with regards to her transfer situation and correspondence highlighting her issues and deterioration of her health went unanswered. The Worker was eventually forced to submit a grievance under the Dispute Resolution Process to gain a solution to the transfer issue, finally resolved on 26 September 2021.

Dispute Resolution Procedure

On 13 April 2021, the Worker submitted a complaint regarding her transfer from Location A and her treatment by the person three ranks above her.

A person four ranks above the Worker was appointed to investigate the complaint and met with the Worker and her Union representative on 20 August 2021.

The Worker was informed by the person four ranks above her in September 2021 that her grievance was upheld in full. She met with the person four ranks above her and a person two ranks above her at a named hotel to sign off on the grievance. The Worker asked to see his report which she should have been provided with as per the policy as this was a decision into her complaint but was told that the report had been forwarded to HRM but her grievances were upheld.

The Worker’s transfer was subsequently cancelled but she received no further correspondence until the case conference the following January when she was advised to appeal her certificate 11.37. She could not understand how this wasn’t being signed off on as her grievance had been upheld.

On 7 October 2022, some one year after the grievance had been finalised the Worker received the report of the person four ranks above her. To her astonishment, there was no reference to any of the highlighted issues with the person three ranks above her and the findings of the grievance dealt solely with the transfer issue. This was in complete contradiction of what was said to the Worker in relation to her grievances.

The Worker, who in October 2022, had been completely removed from the payroll, receiving no correspondence in relation to her sick absence appeal, now discovering that her grievance was not upheld in full and for that matter, not investigated correctly as her issues were not adjudicated upon, was left with no option but to refer her issues to the WRC.

Conclusion

The Worker has shown numerous situations where the Employer attempted to remove the supports within the workplace, recommended by the CMO, which were vital to providing her with a safe working environment considering her disabilities.

The Worker points to the breaches of the Employer’s Code in relation to her transfers in August 2020 and the non-engagement of the Employer in relation to same.

The Worker also highlights the grievance she undertook under the Disputes Resolution Procedures and having been informed that her grievance had been upheld in full. Only for disclosure through freedom of information 13 months later did she discover the findings, or lack of in this case.

The Worker submits that the actions of the Employer, the improper procedures used and lack of correspondence, removal of her reasonable accommodations in the workplace, along with her removal from payroll has resulted in a deterioration in her health, a loss of her wages, length of service and her ability to earn her pay and allowances.

At the adjudication hearing, the Worker outlined the events as described above and the impact they had on her. She said that she was always proud of her uniform and tried hard to work and get back where she was before. She said that she thought that she would keep her head down and get through the three months. She said that the situation nearly broke her, she felt very isolated.

The Worker’s employment commenced on 3 December 1998 and is attached to a named location (Location A). In the course of her employment the Worker has availed of her entitlement to two year’s carer’s leave, parental leave and maternity leave.

The Worker is currently non-effective for duty and has been non-effective since 22 September 2020. The Worker was non-effective on ‘ordinary illness’ and applied for a Code 11.37 certification of her illness absence, that is, that it be reclassified as an ‘Injury on Duty’ rather than ordinary illness. This certification was not granted and forms the main basis of this claim.

Background

The Worker was involved in a serious road traffic collision in 2010 and as a result was out sick for a number of months. The absence was certified as an ‘Injury on Duty’. The Worker returned to duty in Location A on non-confrontational duties as directed by the Chief Medical Officer (‘CMO’). This situation pertained for a number of years. According to the Worker, there had been some conversations with a named person three ranks above the Worker (Mr R) in early 2020 in regard to a transfer to another location (Location B). However, due to the Covid pandemic in March 2020, changes had to be made to rosters and working conditions in the Employer organisation. As a result of which the Worker was requested to transfer to Location B in 2020 by Mr R, which the Worker consented to and took up her duties on 1 April 2020 in Location B.

The Worker worked at Location B until 22 September 2020 when she reported sick.

On 1 August 2020, the Worker became aware that her name had appeared on a Personnel Bulletin issued on 29 July 2020 stating that she had been transferred to Location C. This was clearly an administrative error and was corrected in the next Personnel Bulletin issued on 28 August 2020 where her transfer was stated to be to Location B, where she was then working.

The Worker gave her reason for being on sick leave as ‘work-related stress’ due to the appearance on the transfer list in the Personnel Bulletin. A transfer that she did not request nor was properly advised of in advance.

As a result of being on sick leave and claiming that it was due to work-related stress, a person two ranks above the Worker was appointed to examine the cause of her absence in regard to the claim of ‘work-related stress’ pursuant to relevant HQ Directive.

The Worker also appealed her transfer under the relevant Employer’s Code. She was informed that her appeal was under the incorrect section of the Code and she should resubmit and give reasons for her appeal, which she duly did. However, her appeal was not progressed further.

This inaction resulted in the Worker then making a complaint under the Disputes Resolution Procedures (‘DRP’) in regard to how her unrequested transfer was handled and her subsequent appeal against her transfer.

This complaint was submitted on 13 April 2021 and was investigated by a person four ranks above the Worker, who upheld her complaints in regard to how she was informed of the transfer first to Location B and then to Location C, both of which did not comply with the process under the relevant Code. He also found that her appeal against her transfer had also not been dealt with in accordance with the Code. He recommended that her transfer to Location B in Personnel Bulletin be cancelled and she be returned to her permanent Location A. The Worker was satisfied and in agreement with the decision in her complaint and signed the form accordingly.

As a result, the Worker appeared in a new Personnel Bulletin issued on 24 of September 2021 cancelling her transfer to Location B thereby returning her to Location A which is what she wanted.

The Worker, however, also wanted to have her sick absence classified as an ‘injury on duty’ and not ‘ordinary illness’ under Code 11.37. Her application for a Code 11.37 certificate was refused. This was subsequently appealed by the Worker to the Acting Executive Director of Human Resources and People Development (HR&PD). The Acting Executive Director did not find in the Worker’s favour and her illness absence was held to be ‘ordinary illness’ and not an ‘injury on duty’.

The Worker then made a number of complaints under Section 13 of the Industrial Relations Act 1969 and Section 6 of the Payment of Wages Act 1991 to the WRC.

In attempts to resolve the matter subsequent to her complaint and in compliance with the investigator’s recommendations, the Employer agreed to recognise the period of absence from 22 September 2020 to 24 September 2021 as qualifying for full pay. This period amounts to 1 year and 2 days and is the equivalent of €57,612.94 in monetary value. This would result in full pay for that period and the adjustment of her ‘ordinary sick leave’ record accordingly.

This was considered a reasonable offer taking into account that she had sought to be returned to Location A and claimed that her absence was a result of work-related stress due to being transferred to Location B. This was also the finding under her DRP complaint which the Worker agreed with in full.

Employer’s Position

Claim IR - SC - 00000788

It is denied that the Worker did not have the benefit of fair procedures in the assessment of her application for a Code 11.37 certification of her illness.

Mr E is the Head of the HR Directorate which oversees matters to do with sick leave management in the organisation. He reports directly to the Acting Executive Director of Human Resources and People Development.

The Worker made an application to have her illness classified as an ‘injury on duty’ rather than as ‘ordinary illness’ due to work related stress. In the normal course, a person four ranks above the Worker would make a decision in regard to such classification of illness locally unless there is ‘a doubt’ as to the cause of the illness or if the injuries were due to default or negligence on the part of the member under Code 11.37 (1).

In addition to the Code Chapter 11 of the relevant HQ Directive also applies. It states that where there is ‘any doubt’ that an injury on duty occurred, the Divisional Officer will forward the matter to the person five ranks above the Worker, HRM. The person five ranks above the Worker HRM would seek the advices of the CMO and a decision regarding an injury on duty would be based on:

·       A complete investigation file into the incident

·       Management views and recommendations

·       The assessment and opinion of the C.M.O.

The role of the person five ranks above the Worker has now been replaced by the Executive Director of Human Resources and People Development (HR&PD). In addition, the HR Directorate oversees the majority of HR matters including sick pay. The HR Directorate deals with the day-to-day management of absences due to illness and also engages directly with the CMO.

The Code at Chapter 11.37 also states that;

11.37 Injuries

(1) ‘If a member suffers personal injury, and is rendered non-effective or otherwise, a full report 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 the [person five ranks above the Worker], HRM.

In addition, HQ Directive 139/2010 is also relevant, it states that;

‘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 [the person five ranks above the Worker], HRM for the attention of the C.M.O.’

The Claimant stated that she suffered an injury as a result of work-related stress. An investigator two ranks above the Worker was therefore appointed and an investigation was carried out in compliance with the Code and the HQ Directive.  The person two ranks above the Worker carried out the investigation and reported that she could not identify the absence as an injury on duty.

In this case, the person four ranks above the Worker then forwarded the file to the HR Directorate for directions and a review by the CMO following an investigation of the Worker’s absence and the recommendations in the Investigation Report. This complied with an instruction dated 30 May 2018, which instructed the relevant officials to forward the file to the HR Directorate who would seek the advices of the CMO in issuing directions in regard to any employee certified unfit for work due to work-related stress. The Head of the HR Directorate issued a letter in regard to the Worker’s application for a Code 11.37 in April 2021.

The relevant Code does not provide for an appeal of a decision to refuse a Code 11.37 certificate. This is considered to be inadequate and not consistent with best practice and fair procedures. A new Sick Absence Management Policy is currently being drafted to remedy this situation and discussions are ongoing with the relevant Associations to agree the new policy including a new appeal process.

In the interim, the Employer’s management have attempted to facilitate members of its organisation who wish to appeal a decision not to award a Code 11.37 certificate where the absence is claimed to be due to work-related stress as per the instruction above. This resulted in the Executive Director (HR&PD) retaining the right to make a final decision on a Code 11.37 application by deciding on appeals. This ensured that the Executive Director HR&PD, was an impartial adjudicator and the final decision maker as per the Code and the HQ Directive.

At the adjudication hearing, the Head of HR Directorate asserted that there was a “gentlemen agreement” with the relevant representative body that he would make a decision on the applications that could be then appealed to the Executive Director. It was questioned by the Worker’s representative, who said that they have no knowledge of such agreement.

In regard to the Worker’s complaint, contrary to what the Worker states, the Executive Director has not ‘abdicated’ responsibility nor has this resulted in ‘placing [the Woker] in a position with no procedural appeals process in place within [the Employer organisation] for the granting or refusing of a Code 11.37’ as stated in her claim. In fact, the opposite is true as the Worker was afforded an appeal to the Executive Director for a final decision on her application for a Code 11.37 certificate. The Executive Director examined her appeal and issued a final decision and held that the Worker’s illness was properly classed as ‘ordinary illness’.

There appears to be some misunderstanding in regard to the role of the Head of the HR Directorate in the appeal process. The Worker was advised to send her appeal to his office where it would be forwarded to the office of the Executive Director. It was never the intention of management that he would deal with the appeal himself. This is a misunderstanding on the part of the Worker.

As stated above, the Code does not provide for an appeal in regard to a Code 11.37 application. This is considered to be inconsistent with fair procedures and as a result the process described above was adopted in 2018 in an attempt to offer an avenue of appeal while ensuring the final decision maker was as per the Code, i.e. the Executive Director HR&PD.

Claim IR - SC - 0000078

The Employer does not address matters dating back 8 plus years given that these should not be considered given the extraordinary amount of time that has elapsed.

On the issue of accommodations, it is noted that the Worker states that her accommodations as recommended by the CMO were no longer available to her following the move to Location B. The Worker states that the CMO recommendations were non-confrontational duties, restricted driving at night and posture breaks following her road traffic collision in 2010. The Worker goes on to state that these remained in place and the CMO’s report following a review on 4 April 2017 stated that recommendations remain. However, it appears that the CMO recommended that she remain on non-confrontational duties following the review but that she was deemed medically fit to continue to attend regularly at work and for full-time hours. There is no reference to previous advices or specifically to night driving or posture breaks. The Worker states herself that she had to explain to new colleagues why she could not deal with certain duties. This demonstrates the fact that she remained on ‘non-confrontational’ duties in Location B. Correspondence from Mr R (three ranks above the Worker) in regard to her duties at Location B also state that she was on non-confrontational duties.

Increased driving of 40 minutes due to being transferred to Location B.

The distance according to Google maps and the durations of driving time are: home to Location A – 11km and 13 minutes travel time and the distance from home to Location B is 21km and 23 minutes which is an additional 10 minutes each way and a further 10km. It is also the case that while at Location A, the Worker also did night tours and early tours which meant driving in the dark.

On the matter of the ‘unrequested transfer’.

The Employer always retain the right to transfer members of its organisation as it sees fit and in order to ensure the appropriate staffing level from an operational perspective. All members join in the full knowledge that they can be transferred as required and on promotion. Equally members of the Employer organisation may request transfers. The relevant Code refers and sets out the entitlement of management to transfer personnel. It is accepted that the Worker’s transfer did not comply with the procedures as set out in the Code in regard to sufficient notice in advance in ordering her transfer and that her appeal to this transfer under the Code was also not dealt with correctly. This matter was the basis of the Worker’s internal complaint under the Disputes Resolution Procedures and a person four ranks above the Worker, following investigation upheld her complaint and recommended that she be returned to Location A. This was carried out and the Worker’s transfer to Location B was cancelled in Personnel Bulletin issued in September 2021.

In regard to the investigation report into the Claimant’s absence and the reference to the fact that she had previously worked with the person three ranks above the Worker in another location implying some unfairness. It would be difficult to find members of the Employer organisation in a district or division who haven’t worked together at one time or another. This is does not necessarily create a conflict of interest and the fact was made known to the Worker.

The report of was carried out pursuant to the Code 11.37(1). It states that ‘a full report should be submitted to the [rank] in the first instance and this report will then be forwarded ‘to the [rank], HRM’. Under the Code, this report is not sent to the Worker.

In regard to sick pay and eventually not being in receipt of pay, this is as per the Public Service Management (Sick Leave) Regulations 2014 that are applicable throughout the public service. The fact of an entitlement to paid sick leave is considered a privilege in the public service. It sits in marked contrast to the fact that employees in the private sector had no entitlement to paid sick leave until the Sick Leave Act 2022 introduced 3 days paid sick leave in 2023, increasing to 5 days in 2024, and only provides for 70% of salary capped at €110 per day.

The 2014 Regulations provide for a very generous paid sick leave scheme under Regulation 9, consisting of 92 days sick leave on full pay and followed by 91 days sick leave on half pay subject to a maximum of 183 days paid sick leave in a rolling four-year period. There is also the possibility to apply for Critical Illness Payment (CIP) under Regulation 12 and if granted will essentially double the entitlement to sick leave on full pay and sick leave on half pay. Where a person has exhausted their paid sick leave entitlement, they may be approved for payment of Temporary Rehabilitation Remuneration (TRR) under Regulation 16. This payment is for a period of 365 days but may be increased to 730 days.

The Worker’s sick pay record shows that she has been in receipt of her full paid sick leave entitlements pursuant to the Public Service Management (Sick Leave) Regulations 2014. There is no right to further paid sick leave once the sick leave provided for in the Regulations has been exhausted. There is no discretion on the Employer in this regard, except when it comes to the TRR. The Worker has also had the benefit of this discretionary payment.

SUMMARY

The Worker states in her claim form that ‘her grievance centres on the lack of procedural aspects around the issuing of a certificate under Code 11.37. In addition, that there is a complete lack of guidance or policy as to how to appeal a refusal to award a Code 11.37 certificate. As stated above, there is currently no right of appeal provided for. Therefore, no policy could be provided to the Worker in regard to an appeal.

The Worker incorrectly states in her claim form that she was left in the position of appealing a decision by a person who should not have made the decision in the first place. As stated above, the Office of the Executive Director HR&PD was the ultimate decision maker in the matter. The procedures in place in the HR Directorate complies with the instruction where an absence is due to work-related stress.

The management are aware that the Code in not allowing an appeal where a Code 11.37 certificate is refused is not satisfactory and is no longer in keeping with best practice. For this reason, members were allowed to appeal a negative decision to the Executive Director HR&PD for a final decision. Since the Executive Director HR&PD is the executive authority, there would be no possibility of an appeal if the Executive Director HR&PD made the decision in the first instance.

The management are currently in a consultation process with the relevant Associations to agree a new Sick Absence Management Policy for members in order to ensure that policies comply with current changes and best practice.

Contrary to what the Worker asserts, she was in fact not denied her right to fair procedures and due process. She applied for the Code 11.37 certificate after going out sick, a full and thorough investigation was carried out into the cause of her absence to which she contributed. The Divisional Officer sought further consideration of the matter by the HR Directorate and the CMO. The Head of the HR Directorate issued directions following a full review of the Worker’s investigation file, the CMO’s opinion and management’s opinion. Furthermore, the Worker was facilitated in appealing the decision not to issue her with a Code 11.37 certificate to the Executive Director HR&PD for a final decision.

The Worker cannot show that she was denied any of her rights to fair procedures. Furthermore, whether the decision should have been made by the Head of the HR Directorate or the Executive Director at first instance does not in any way diminish or reduce the fairness of the procedures such that it would render the process unfair. The Courts have always held the view that perfection is not required and an imperfection in internal procedures will not necessarily render a procedure wholly unfair.

McCarthy J noted that ‘..neither natural justice nor constitutional justice requires perfect or the best possible justice, it requires reasonable fairness in all circumstances’. (International Fishing Vessels Ltd v Minister for the Marine (No 2) [1991] 2 IR 93). A similar opinion was given by Keane J. in Mooney v An Post stating, ‘the concept of [natural justice] is necessarily an imprecise one and what its application requires may differ significantly from case to case.’ (Mooney v An Post [1994] ELR 103).  This was further echoed by Laffoy J. who outlined that a central consideration to a fair process is whether or not any purported breach of natural justice was ‘likely to imperil a fair hearing or a fair result’. (Shortt v Royal Liver Assurance Ltd [2008] IEHC 322.  Closer to home the Employment Appeals Tribunal noted that ‘a disciplinary procedure does not need to be a counsel of perfection but rather must be fair.’ (Murphy v College Freight Ltd UD 867/2007).

It is clear from the case law of the superior courts that what constitutes fair procedures will vary depending on the circumstances of each case and that the central tenet of natural justice is that the outcome does not result in any unfairness to the individual or result in an unfair decision.

In this instance, the matter of who made the decision at first instance and who dealt with the appeal does not render the whole process unfair or in any way diminish or reduce the Worker’s access to a fair decision in the circumstances. The Worker was given every opportunity to have her dissatisfaction with the refusal to issue a Code 11.37 certificate dealt with and an appeal was decided upon by an impartial and senior office even where procedures did not provide for this.

The role of the WRC in this matter is not to look into the decision itself or substitute its own decision for that of the Employer but merely to examine the fairness of the decision given the circumstances. The Labour Court in Bord Gais Eireann v A Worker noted that; ‘It is not the function of this Court to form a view on the merits of complaints giving rise to those investigations nor can it substitute its views for those of the investigators appointed in either case. Rather the role of the Court is to establish if the procedures used by the company conformed to the generally accepted standard of fairness, objectivity that would normally be used in cases such as these.’ (Bord Gais Eireann v A Worker, Labour Court AD 137).

Conclusion

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 Worker must fail in her claim as she has not shown that the procedures used in any way interfered with or diminished her right to fair procedures or that the process used in any way resulted in an unfair decision. A negative decision is not an unfair decision.

The Employer was willing to recognise the time between the advertisement of the original transfer to Location B appearing in the Personnel Bulletin and the correction Bulletin cancelling the transfer from Location A as contributing to the Worker’s absence from work and was willing to put the Worker back on pay for that period amounting to just over one year, but this offer was rejected.

The Employer has made a decision internally in regard to the classification of the Worker’s absence and has held that it is ‘ordinary illness’ and not an ‘injury on duty’. There is no automatic right to a Code 11.37 certificate and management are entitled to make a decision. As noted above, a previous absence in 2010 was certified as an injury on duty. Each application is viewed on its own merits.

At the adjudication hearing, the Adjudication Officer inquired as to what the Employer’s position was with regard to the Gao case referenced by the Worker. The Employer asserted that Gao is not applicable in this case as it was “the judge’s view” ina “unique case”.

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

In essence, the Worker’s disputes relate to the following matters: the classification of her illness (IR - SC - 00000788 ) and the transfer, the alleged removal of reasonable accommodations, and the dispute resolutions process (IR - SC - 00000789).

Transfer

With regard to the matter of transfer, I note that the Worker appealed the transfer in or around 29 August 2020. However, despite her requests for an update on 23 January 2021, 1 March 2021, 12 April 2021, there has been no engagement on part of the Employer until the Worker submitted a grievance under the Dispute Resolution Process on 13 April 2021, which will be addressed separately below. The investigator upheld the Worker’s complaint regarding the transfer and found that both transfers and the Worker’s appeal were not dealt with in accordance with the relevant Code. I note that, on foot of the report of the investigator, the Employer agreed to recognise the period of absence from 22 September 2020 following the appearance in the Personnel Bulletin issued on 28 August 2020 to the cancellation and correction of this incorrect transfer in Personnel Bulletin issued on 24 September 2021 in line with the recommendation of the person four ranks above the Worker as qualifying for full pay. The Employer offered the Worker payment for the period of 1 year and 2 days amounting to €57,612.94.

Dispute resolution process

With regard to the dispute resolution process, I note that the Worker engaged with the Employer’s internal Dispute Resolution Process (DRP) using the required form. She raised her grievance on 13 April 2021. In the document she outlined  her concerns regarding the transfer, regarding interactions with the person three ranks above her and the changes in her work arrangements such as longer commute that contributed to her stress and anxiety.

Clarification was sought and provided by the Worker on 29 April 2021. She listed three points:

1.       the transfer;

2.       lack of communication regarding her transfer appeal;

3.       differential treatment, transfer application, unreasonable behaviour, undue pressure, duty allocation. Disregard for recommendation supports which had been put in place.

The Worker further noted that her absence is directly related to her treatment received at work at the hands of the person three ranks above her over the preceding months which she had outlined in her transfer appeal.

The investigator, a person four ranks above the Worker was not appointed until 30 June 2021, his report was issued on 3 September 2021. The matter of transfer appeared to have been resolved on 24 September 2021. The investigator’s decision was not communicated to the Worker until a meeting on 6 October 2021 and, at that stage the Worker was told that her grievances were upheld. She did not receive a copy of the investigator’s report or a copy of the minutes of her meeting with the investigator on 20 August 2021.

I note that the investigation took some six months. The decision that her grievances were upheld was communicated verbally to the Worker. She had no benefit of minutes of the meeting and/or the report itself. I find that it was not adequate to request the Worker to sign off on the outcome of the investigation without giving her the opportunity to review the report. As a result of that, the Worker missed out on the opportunity to appeal the outcome of the investigation of her grievances, which she clearly disagreed with once she received a copy of the report on 7 October 2022 through her FOI request. It is unclear why the report dealt only with the matter of transfer and completely ignored all other issues raised by the Worker. It is even more difficult to understand why the Worker was not furnished with a copy of the report as soon as it was ready.

Reasonable accommodation

With regard to the alleged removal of reasonable accommodations, the Worker submitted that the move to Location B caused some of the accommodations provided to her in Location A being removed. The Worker alleged that the extra travel time at night to/from Location B had a profound effect on her health and that she was unable to avail of proper reliefs for posture breaks and perform her physio to counterbalance the effect of the pain and tension.

I find that the Worker agreed, albeit I note that her options were very limited, to move to Location B on a temporary basis. It appears that in her grievance of 13 April 2021 she raised the matter of the accommodations required and given to her in Location A and the changes due to relocation, albeit mainly in the context of the transfer and the resulting commute.

I found elsewhere in this recommendation that the investigation of the Worker’s grievance was lacking and did not deal with the issue of reasonable accommodation at all. It is inadequate for any Employer to disregard concerns of this nature.

Classification of the Worker’s illness

The Worker maintains that 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 Code 11.37 status. The Employer refused this application.

I am quite surprised by the Employer’s assertion that Gao V. The Commissioner of An Garda Síochána [2017 No. 909 J.R.] was “the judge’s view” ina “unique case” that is not applicable. My view, on the contrary, is that Gao is precisely the case that applies. I found myself very surprised to find the Employer did not avail of the invaluable guidance provided by the High Court and did not adjust its approach to the Code 11.37 applications accordingly.

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

Secondly, the High Court in Gao, also considered psychological injury and the possible context of bullying and harassment, within the facts of that particular case (at para 73-76).

Thirdly, in Gao,  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, on the basis 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.

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.

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.

In this case, there are a number of matters that are intertwined including the transfer, the dispute resolution process and the classification of the Workers illness.

The decision to classify the Worker’s absence as “injury on duty” rested with the Divisional Officer. There was nothing put forward to show that he was of the opinion that the injury was due to wilful default or negligence on the part of the Worker or that he had any doubt about the matter. Either no “record of the Divisional Officer’s decision” was attached to his submission to HR as required or no such record was provided to the Worker and to this hearing. In the absence of such record, it is hard to understand why the matter was referred to HRM in the first place.

Following the referral, the Head of HR Directorate issued his decision on foot of:

·       the report of the person two ranks above the Worker, who, as put in the Employer’s submission “could not identify the absence as an injury on duty”. It was not within her gift to make a decision of this nature. The only two people who were entitled to make such a decision were the Divisional Officer or, if she/he had any doubt the Executive Director of HRM. Furthermore, while I accept the Employer’s assertion that it might be difficult to find two persons that did not work with each other at some point it time, it seems that no effort was made to attempt to do so. Even more concerning is that the person two ranks above the Worker was appointed on the direct recommendation of the person three ranks above the Worker, against whom she raised her grievance.

·       An email of the person three ranks above the Worker dated 23 September 2021 which outlines the meeting he had with the Worker on 6 February 2020 and the subsequent move to Location B. It does not seem to provide any significant views and/or recommendations on the matter.

·       The CMO’s report of 9 March 2021.  By his own admission, the Head of HR Directorate did not believe it was necessary to clarify what were the “occupational factors of concern”  highlighted by the CMO or the later cited “socio-occupational factors” as per the CMO’s report of 18 May 2021. In fact, at the adjudicator hearing, the Employer noted that it was still at a loss what these factors were.

Despite the High Court judgment, the Head of HR Directorate stated in his decision that “In the absence of a formal complaint and outcome of same, I am unable to recommend that the absence from 22nd September 2020 to date is recorded as injury on duty as there is no causal factor established for the absence.”

He then stated that “Local management should advise [the Worker] if she wishes to use a formal approach into the matter under the [relevant policy], and should such an approach provide evidence that there is fault on the part of [the Employer’s] management which gives causality to the sickness absences in this matter, the file can be resubmitted for review.”

The letter did not provide any information or guidelines regarding an appeal of the decision.

The Head of HR Directorate noted in his letter of 26 June 2021 that a complaint was, in fact, submitted and stated that upon findings being made available, the case might be re-submitted for review. However, again, no guidelines regarding an appeal of his decision were included in the letter. It appears that it was not until the Worker received the email of 27 January 2022 that she was advised that should she wish to appeal the decision, she should forward her appeal through  he channels for onward transmission to [Mr E] HR Directorate.”

In the response to the Worker’s appeal, the Acting Executive Director in her letter dated 31 January 2023 (which the Worker did not receive until the Employer furnished its submission to the WRC) essentially copied the Head of HR Directorate’s decision again stating that “in the absence of a formal complaint and outcome of same, I am unable to recommend that the absence from 22 September 2020 to date is recorded as an injury on duty as there is no causal factor established for the absence.“ She then repeats the statement regarding causality and the option of proceeding with a formal complaint, as quoted above.

It was not disputed that the Worker had not received the above reply from the Acting Executive Director until such time the Employer furnished its submission to the WRC in June 2024.

In support of its position regarding the arrangements made for an appeal avenue, the Employer relied on a memo issued to all officials of the relevant rank on 30 May 2018 (post Gao) which instructs as follows:

“Where a member is certified unfit for work by their GP due to work-related stress, the [relevant rank] should conduct an investigation into the causes of the stress.

The investigation report should be submitted to the Head of HR Directorate who shall provide the report to the Chief Medical Officer for consideration in order to inform appropriate clinical advice.

The Head of HR Directorate when considering the matter may seek the advices of the Office of the [Employer] Chief Medical Officer in determining the category of the occupational injury/illness. The HR Directorate may commission additional investigations and report as deemed necessary.

The [relevant rank] should not consider issuing a Code 11.37 until all investigation [including appeals] regarding the mater have been fully completed and the [relevant rank] is in receipt of the results of such investigations.

The minute should be read in conjunction with Code 11.37.”

I cannot accept the Employer’s contention that the memo quoted above, which was sent only to employees of a specific rank, clarified the appeal process. It is clear that the Worker and her representative were not aware of same and evidently, the letters of 1 April or 29 June 2021 did not clarify the matter at all. It  seems that the appeal process remains unresolved. Even if it was accepted that, on a “temporary” basis the Head of HR Directorate was tasked with the issuing of the initial decision on the code 11.37 application in order to allow for an appeal to the Acting Executive Director, it appears that the Worker’s representative body was not aware of the “gentlemen agreement” referred to.

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

Having carefully considered the parties submissions in this case, it appears to me that some six years post Gao at the time of this hearing, the Employer attempts to rerun the same argumentsregarding the causal factor.

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 transfer and the aggravating delays.

·       The Employer’s handling of the Worker’s grievances regarding the transfer, the concerns she had regarding the accommodations she required following her move to Location B, and the concerns she raised with regard to the treatment by the person three ranks above her.

·       The manner in which the Employer handled the Worker’s 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.

·       The outstanding payments that were approved for payment but never paid.

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

IR - SC – 00000788

1.              In line with my recommendation below, the period from 22 September 2020 to 24 September 2021 is to be treated as qualifying for full pay. The Worker’s sick record must be adjusted accordingly.

2.              I recommend that the Employer now consider the Code 11.37 application, pertaining to the period 25 September 2021 onwards, correctly, in line with the clarifications 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 recommendation, setting out the reasons for its findings.

3.              I recommend 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 25 September 2021 until the consideration of her Code 11.37 application is concluded.

4.              That the payment of any monies due to the Worker that were approved for payment in January 2022 is made as soon as possible but within 30 days of the date of this recommendation, at the latest.

IR - SC – 00000789

1.       That an investigation of the Worker’s grievances regarding the alleged removal of reasonable accommodations and the alleged treatment by the person three ranks above her raised on 13 April 2021 is carried out within three months from the date of this recommendation.

2.       I note that, to comply with the recommendation of the investigator regarding the matter of the transfer, the Employer agreed to recognise the period of the Worker’s absence from 22 September 2020 to 24 September 2021 as qualifying for full pay. This period amounts to 1 year and 2 days. This would result in full pay for that period and the adjustment of her ‘ordinary sick leave’ record accordingly. I recommend that the Worker accepts the Employer‘s offer with regard to the resolution of the matter of her transfer.

3.       That the Employer engages with the Worker and the CMO with a view to ascertaining how can the Worker be supported in her return to work when medically deemed fit to do so.

4.       That the Employer pays the Worker compensation in the sum of €15,000 in respect of:

o   The failure to process the Worker’s Code 11.37 application in a timely manner and in line with the clarifications set out by the High Court in Gao in 2018 judgement.

o   The failure to handle the Worker’s grievances adequately in line with the Employer’s own procedures and in adherence to the requirements of fair procedure and natural justice.

o   Significant failures by the Employer with regards to the inexplicable time delays.

o   The uncertainty the Worker experienced as a result of the Employer’s action and/or inactions as well as the personal, professional, financial and health implications resulting from same.

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

Delay – procedural failures- failure to apply High Court findings- code 11.37