ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00009342
A Security Officer
A Security Company
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991
Date of Adjudication Hearing: 08/01/2018
Workplace Relations Commission Adjudication Officer: Peter O'Brien
In accordance with Section 41 of the Workplace Relations Act, 2015and Section 13 of the Industrial Relations Acts 1969 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
The Complainant was seeking payment for being out of work under a “Personal Attack” Scheme.
Summary of Complainant’s Case:
The claim arises from complaints issued by SIPTU on behalf of the Complainant against his employer. Both the Payment of Wages Act complaint and the Industrial Relations Act Case refer to the interpretation and implementation of the provisions of the applicable Statutory Instrument No 417 of 2015 – Employment Regulation Order (Security Industry Joint Labour Committee) 2015.
The Complainant commenced employment with the respondent company on the 07/04/2014 in the capacity of security officer and was assigned to duty at a Hospital. While on duty on the 04/03/2017 in conjunction with his supervisor, he was alerted by the security officer in the camera room that a gentleman had been observed taking a case from a patient trolley in the emergency department. As part of their duties the security officers approached the gentleman in question to ascertain the ownership of the case that was in his possession. During the course of this exchange the gentleman in question became extremely aggressive and made an attempt to strike the Complainants Supervisor. In their efforts to restrain the gentleman the Complainant was dragged towards the Nurses station and was pushed against it with such force as to rip his shirt pocket completely off and dislodge the walkie talkie that was contained therein. Because of this the gentleman broke free from restraint and began to run around the emergency department. In a further attempt to restrain him the Complainant received a further impact when he was bumped aside by the gentleman who ran straight towards him. The gentleman was eventually restrained with the assistance of additional security personnel. In the aftermath of the incident the Complainant reported to his supervisor that he had begun to experience pain in the left side of his body and that he had difficulty breathing. The Supervisor advised him to report to the Accident and Emergency department. The Complainant was seen by a doctor who prescribed pain relief and required x-rays to be taken. The Complainant was kept in overnight for observation and was released from the hospital at noon the following day. However, the Complainant remains on certified sick leave as a result of the injuries sustained and trauma experienced arising from the incident. The necessary reporting and investigation requirements of the company in relation to incidents of this nature were completed. Subsequent to the incident the employer has refused to apply the provisions of the Personal Attack Benefit set out at section 7 of the E.R.O on the basis that the scheme is not applicable in relation to this incident. This position has been challenged by the union through the internal agreed procedures without resolution ultimately leading to this hearing
Payment of Wages Act Case
Wages in relation to an employee as defined by the Payment of Wages Act means
“any sum payable to the employee by the employer in connection with his employment, including-
(a)any fee, bonus or commission or any holiday sick or maternity payor any other emolument, referable to his employment whether payable under his contract or otherwise”
Given that the personal attack benefit scheme is a requirement of a Statutory Employment Regulation Order the Complainant would contend that the benefits payable under the personal attack benefit constitute wages.
The Act further determines under section 5 that the non- payment of wages properly due to a employee save from those arising as a result of miscomputation constitute a deduction from wages and in the case before you constitute an illegal deduction from the Complainants wages on the basis that he has an entitlement to the payment of those wages.
In support of this contention the Complainant would outline the following
Under the provisions of the ERO an employee with the Complainants service who is the subject of personal attack during the course of his duty and sustains an injury that renders him unable to attend work should receive the benefit of up to 20 weeks basic pay less social welfare. It is the Complainant’s position that the Complainant has a statutory entitlement to the benefit of those wages. The Complainant was assaulted on the 04/03/2017 during the course of his duties as a security officer. Arising from that assault the Complainant received injuries that have and continue to render him unable to attend work. In making the assertion that the Complainant was the subject of an assault the Complainant is relying on the statutory definition of same as set out at section 2 of the Non - Fatal Offences Against the Person Act 1997 which says
“2-(1) A person shall be guilty of the offence of assault who, without lawful excuse, intentionally or recklessly-
(a) Directly or indirectly applies force to or causes an impact on the body of another, or
(b) Causes another to believe on reasonable grounds that he or she is likely immediately to be subjected to any force or impact
Without the consent of the other”
In respect of the circumstances applicable to the Complainant, the Complainant would have to contend that the employers’ refusal to implement the provisions of the Employment Regulation Order in respect of the payments due to the Complainant is a breach of the Payment of Wages Act. The Complainant would request that the Adjudicator determine that the complaint is well founded and require the Respondent to compensate our member to the value of any underpayment of wages properly due. In order to be of assistance to the Adjudicator the Complainant set forward calculations as being the monies due. The complaint form was received by the WRC on the 04/07 / 2017 giving a total of 18 pay weeks over the period of the reference period. The ERO Provides for a payment of basis pay less social welfare entitlement. The Complainants normal working week was 28 hours per week at a rate of €10.75 per hour giving a gross weekly basis pay of €301.
Basic Pay €€301 – Social Welfare €188 = €113 x 18= €2034
In the case under the Industrial Relations Acts the Complainant is requesting that the Adjudicator would determine that the failure of the Respondent to apply the provisions of the personal attack benefit constituted a breach of their obligations under the Employment Regulation Order. The Industrial Relations (Amendment) Act 2012 re-established the legal basis for Employment Regulation Orders following the striking down of the Joint Labour Committee system by the Supreme Court. The aforementioned legislation empowers the Rights Commissioner Service and now the Adjudication Service to hear and issue decisions in respect of breaches of the ERO’s. The legislation further empowers the Adjudicator to award compensation of up to 2 years’ salary where he or she finds that a complaint is well founded. It is the Complainant’s view that in the previously outlined circumstances applicable to the Complainant that the protections and benefits afforded to him as a security officer covered by the terms of the ERO were breached by his employer. At a time when he was and is in a most vulnerable state both financially and psychologically the employer refused the Complainant his statutory entitlements. This behaviour on the part of this employer is totally unjustified and unacceptable and is particularly obscene when you consider that the Respondent Group is one of the leading providers of Security Services within the state. The Complainant would request the Adjudicator to issue a decision upholding our complaint and award the Complainant appropriate compensation for the clear denial by the Respondent of his rights as an employee.
Summary of Respondent’s Case:
The Complainant is employed as a Security Officer. The company provides security services to a range of clients and in this particular case the company provides a service to a hospital (X), where the Complainant is an experienced Security Officer.
The Complainant has been employed as a security officer in X Hospital since April 2014 and is part of the security team operating in the hospital.
On the 4th March 2017 the Complainant was on duty and became involved in chasing a male who was acting suspiciously in the A&E Department. In the course of the pursuit we understand he hit himself at the nurse’s station when he ran into it. Having recovered from this he continued his chase to where the assailant had been trapped between two doors within the emergency department by other security staff who then proceeded to restrain him until the Gardaí arrived and arrested him. There were no injuries reported as a result of an attack by the assailant on the Complainant who, as a result if his collision, went to hospital and then went on certified sickness.
Subsequent to this incident the company supported the Complainant in providing counselling for 10 sessions.
Subsequent to these events the company received an enquiry from the Complainants representative indicating that the Complainant had not received any attack benefit as a result of this serious incident.
Personal Attack Benefit is provided for under section 7 of the Employment Regulation Order (Security Industry Joint Labour Committee 2017). (Appendix page 1). This is a benefit which is provided by the company to employees who have six months services with the company, where they have been “attacked in the course of their duty” and as a result of such an attack they have suffered “an injury”.
In this particular instance the injury that the Complainant suffered arose from when he ran into the nurses’ station which caused him soft tissue injury to his body. This was confirmed by the company doctor who conducted a medical examination of him. The doctor stated that “he hit the left side of his chest wall during the event on two occasions, once when forced to make contact against the wall of the nursing station and the second time when the individual made contact with his left breast pocket where he held a walkie talkie”. As indicated above these contacts resulted in soft tissue injury which were treated accordingly. However, these injuries were not as a consequence of an attack, which is what Personal Attack Benefit is specifically for.
When an enquiry was made by SIPTU regarding this payment the company responded to SIPTU detailing the circumstances. As was clarified to SIPTU on the 4th April, whilst the Complainant did not receive any Personal Attack Benefit he did receive Sick Pay until his sick pay entitlement expired.
The claim that the Complainant is making is that he should have received payment under the Personal Attack Benefit Provisions as prescribed in the Employment Regulation Order.
As was established, this is a scheme which allows for payment to a security officer who is injured as a result of being attacked by someone whilst they are at work. The essential element of this scheme is that the security officer himself must have been attacked and, as a consequence of that attack, have suffered injuries that forced him to stay out of work. In this regard the Complainant’s circumstances were that he was not attacked by any person but was in pursuit of someone. In this regard this would be no different to any other officer who may be involved in security duties whether it be in a building, a hospital or a retail outlet pursuing someone who they believe may have been involved in some breach of security. As is evidenced by the claimant’s own statements to the company and his incident report form, there was no attack.
The company believe that in these circumstances the Complainant is not entitled to claim benefit under the Personal Attack Benefit Scheme for the reasons as outlined above and therefore the respondent would request that the company’s position be upheld.
In this regard the respondent would identify that if the Complainant was successful in pursuing a claim, which is clearly designed to protect officers when they are physically attacked, then this would create a potential for claims to be made by any officers where, in the pursuance of their duties, they are injured, but yet at the time of their injury they were not being attacked by anybody.
Therefore, the respondent would ask the Adjudicator to reject this claim on the basis that there was no attack upon the Complainant and secondly were the Complainant’s claim to be successful it would have significant repercussions within the security industry generally, where officers carrying out their normal duties but were attacked incur an injury.
Decision and Recommendation:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act. In relation to claim reference number CA-00012265-002, under the Payment of Wages Act 1991, there is no question that the Complainant was involved in a fracas at work with a person who was believed to be up to no good. However the key issue is whether he is covered by the benefit available in Section 7 of the Employment Regulation Orders for the Security Industry. The Order itself defines, to a degree, (but not in the main definitions area), “attack” as “an employee who has been subjected to violence as a result of carrying out his/her duties.” It also references PSA Standards 28 of 2013 Sections 4, 6 and 7. There actually is no mention of “attack” in the most relevant section, 4.6, it mainly states “violence”.
The Oxford Dictionary on line definition of “attack” in a personal situation is as follows” Act against someone aggressively in an attempt to injure or kill”. Having heard the evidence provided and viewed the video of the incident I have to conclude that while the person that the Complainant engaged with was trying to evade his and other staffs efforts to catch him the Complainant was not in any danger of the other person trying to injure or kill the Complainant. The Complainants problem appears to have arisen as a result of hitting of a desk in pursuit of the other person
Therefore, the Complainant has not established a right to be paid for his time out, under this Regulation and his claim under the Payment of Wages Act fails.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute. In relation to claim reference number CA-00012265-001, the claim under this Act was premised on the basis that the above claim would succeed. However, as it has not succeeded, I see no grounds or merit to make a recommendation in favour of the Complainant.
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Personal Attack Scheme