Worker

Employer

Anonymised Parties

A Worker

An Employer

Representatives

Dermot O Brien

Employee Relations Bureau

Act

Dispute Reference No.

Date of Receipt

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

IR - SC - 00003036

26/08/2024

The Worker has been employed by the Employer since 12th May 2005 and remains in employment as of the date of the hearing.

This dispute concerns an absence on the grounds of illness for the period 28th September 2023 to 16th October 2024. The Worker’s leave for this period has been classified as “ordinary illness”, however the Worker disputes that this is the correct classification.

The Worker’s case is that the classification of his absence as “ordinary illness” is incorrect and should properly be classified under Employer Code 11.37, which is “injury on duty”.

On 28th September 2023 the Worker was due to start work at 7pm. He was asked by a colleague for a lift home and obliged using the work vehicle. After leaving his colleague home, he received a call to attend at a particular location for a work-related activity. On his way to this location he was involved in a road traffic accident. The other party was entirely at fault and the Worker was not in any way responsible for the incident. This resulted in the Worker’s absence from the date of the accident, 28th September 2023, to 16th October 2024.

On 26th January 2024, the Worker made an application for this absence to be classified as “personal injury” rather than “ordinary illness” under the above code.

On 9th May 2024, a decision was made to refuse applying Code 11.37 to the Worker’s absence on the basis that the Worker was outside his jurisdiction at the time of the accident without permission and had he been within his jurisdiction the accident would likely not have occurred.

The Worker’s case is that Code 11.37 operates as an occupational injury scheme, which the Worker is entitled to rely on. A 2018 Irish High Court case is relied on in support of this. That case outlined that if there is doubt that an injury on duty occurred then a decision will be made by the Executive Director of HRPD based on: ·

-          A complete investigation file into the incident;

-          Management views and recommendations;

-          The assessment and opinions of the C.M.O. [Chief Medical Officer]

The decision in this case was not made by the Executive Director, but rather by the head of HR, which is lower in rank to the position of Executive Director. No delegation of this function has ever been made from the Executive Director to the Head of HR and so that person is not in a position to make the decision.

The Worker states that there was a change in position from an email dated 8th May 2024, which recommended applying Code 11.37, to a refusal of applying the code once it had been discussed with the head of HR. The Worker submits that there was no change in circumstance and so no reason for this recommendation to be overturned.

Further, the reasoning provided by the Employer for the refusal to apply the code relies on UK precedent rather than domestic case law.

Finally, the Worker argues that there is a lack of any appeal mechanism in relation to decisions regarding this classification. On 28th May 2024, the Worker sought to appeal the decision and was advised by return correspondence of 4th June 2024 that no appeal mechanism was in place. On 10th June 2024 he submitted a grievance under the dispute resolution procedures but was told that his grievance was not amenable to those procedures. The Worker’s attempt to resolve this through internal mechanisms was therefore hindered by procedural shortcomings.

In conclusion, the Worker’s position is that this is clearly an “injury on duty” and should be classified as such.

The Employer’s position is that there was a doubt that injury on duty had occurred and so the matter was referred to the Executive Director HRPD.  Management view was that the Worker was “not on official duty at the time of the incident and had no official business” in the area at the time of the collision. Therefore the application of Code 11.37 was not recommended.

The Employer states that this was a reasonable decision to make and that it is not the role of the Adjudication Officer to overturn an internal decision.

The Employer relies on the Labour Court decision in Bord Gais Eireann & A Worker AD1377 which found that it is not the function of the Court to substitute its views for those of the investigators, but rather it is to establish if the procedures used by the Company conformed to the generally accepted standard of fairness and objectivity.

Further, the Employer states that the Worker was offered an avenue to appeal this decision internally, but did not take it. On 11th June 2024, an email was sent to the Worker which stated that the grievance was not amenable to disputes resolution procedures, but that the decision could be appealed to the Office of the Executive Director HRPD. It was submitted that by not availing of this option to appeal that he has therefore not exhausted internal procedures. The Employer is still willing to offer this appeal option to the Worker. It was submitted that the decision was made by the head of HR so that an appeal could lie to the Executive Director, who would act as an impartial decision maker at that point.

The Employer seeks a recommendation that the Worker avail of the appeal mechanism that has been offered.

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

The net issue in this case is whether or not the Worker was on duty at the time of the road traffic collision on 28th September 2023 and, consequently, whether or not Code 11.37 applies to his leave. I find that it is extremely difficult to understand the Employer’s position that the Worker somehow came “off duty” by virtue of the fact that he gave his colleague a lift, particularly in circumstances where he was then enroute to a work-related location when the collision occurred. However, I accept that it is not my role to substitute my views for those making the decision internally. Rather my role is to look at the procedures that were followed to arrive at that decision and whether they meet the generally accepted standard of fairness and objectivity.

When asked about the relevant procedure for interpreting the application of Code 11.37, the Employer stated that legal advice was received from a solicitor in this jurisdiction on the issue and the Employer was entitled to rely on that. When asked specifically when that advice was received, the response was that it dated from 2010.

The 2018 Irish High Court case relied upon by the Worker provides guidance on the interpretation of Code 11.37. In the absence of a successful appeal of that judgement, it is binding law in this jurisdiction. It is my opinion that the Employer’s failure to apply the principles set out in that judgement to the decision in this case, renders that decision making process flawed.

The process is further flawed by the fact that a decision is called for by the Executive Director, and the Executive Director did not make the decision in this case.

The combination of the above factors means that the procedures applied in this case do not meet the necessary standard of fairness.

The lack of an appeal mechanism is clearly an issue for both parties but I will not comment further on this particular aspect of the case as I am of the view that to do so would risk crossing into the realm of addressing a collective issue, which I am prevented from doing.

It is my recommendation that the Employer carry out a fresh examination of the Worker’s application for his illness to be classified as injury on duty. I recommend, in particular, that this is done with due regard and attention to the findings in the 2018 Irish High Court case relied upon by the Worker. A decision should be made by the Executive Director and it should set out the reasons for the finding.

I recommend that the Employer consider afresh the Worker’s Code 11.37 application and, in particular, that it is considered in line with the 2018 Irish High Court decision relied upon by the Worker. A decision on this application should be made by the Executive Director setting out the reasons for the finding, within 42 days of the date of this recommendation.

Failure to apply High Court findings – Code 11.37