Worker

Employer

Anonymised Parties

A Worker

A Public Service Provider

Representatives

Dermot O Brien, Garda Representative association

Paul Hardy, 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 - 00002635

16/05/2024

The Worker was absent from duty on work-related sick leave from the 19th of October 2021 to the 7th of November 2022. During that time, she made an application for the classification of her sick leave as arsing from “injury on duty”. Various issues arose from that application which was unsuccessful and the Worker referred the dispute to the WRC Pursuant to Section 13 of the Industrial Relations Act 1969

On the 24th of January 2024 the Worker invoked Stage 1 of the Service’s internal grievance procedure which is referred to as “the DRP”. Her grounds set out in the form initiating that grievance procedure were as follows:

“1. The excessive undue delay in making a decision in relation to my Code 11.37 application which took from 21/08/22 to 22/12/23

2. The total non-adherence to the [Code] in relation to issuing of a decision under Code 11.37

3. The non entitlement of [the Head of the HR] to make the recommendation made on December 22nd, 2023

4. A direction issued by [the Head of the HR] in March 2022 which was adhered to by the [Local Manager] when said direction had not been agreed by the [the Head of the Service] and the Staff associations and has affected the terms and conditions of the employment on which I joined the [Service].

5. No right of Appeal of the Code 11.37 to an independent person who has had no part in the process and who would be independent of the process”

The present referral was initiated by way of WRC Complaint Form which was received by the WRC on the 16th of May 2024. That Complaint Form (subject to redactions) contained the following submission

“I brought to the attention of management work related issues I was having in 2020 in and around August/September of that year. I requested from my [supervisor] that I be placed in a quieter [location] to give me an opportunity to catch up with my paperwork. The [supervisor] requested same, and it was denied by the [Manager]. I spoke to the [Manager] again in 2021 about my stress with the workload and she suggested I bring it home with me to get the work done. This was about a year after I initially highlighted my work-related stress. As a result of this interaction and management’s inaction I reported unfit for duty due to work related stress on October 19th, 2021. I returned to duty on November 7th, 2022, without a resolution to my Code 11.37 application.

As per Directive 139/2010 an investigation is to be undertaken immediately due to me reporting unfit for duty with work related stress. After 126 days as a result of me reporting unfit for duty with a personal injury, the investigating officer took a report from me. The investigation was finalised 43 days later on March 29th, 2022, some 162 days after I initially reported unfit for duty due to work related stress. I applied to Management for my work-related stress to be classified as a personal injury and sought the classification as per Garda Code 11.37.

Procedures pertaining to the Code and the Directive were not followed and decisions/recommendations were made by the [Service]’s staff who had no entitlement to make them. My application was refused with no rationale given as to why it was being refused. As stated, said refusal was not concluded as per the Code or the Directive.

The excessive undue delay took until January 9th, 2024, in relation to my personal injury Code 11.37 application. It has taken 813 days overall to be told I can have the matter “reviewed” not appealed by Human Resources. This has caused me untold stress due to Management’s inaction, misdirection, invalid direction and significant interference by the [Service]’s staff with no entitlement to be involved in the Code or the Directive 11.37 process.  It has also caused me to have to attend the workplace after being assaulted on duty and injured during the Code 11.37 process as my sickness would be classified as ordinary sick and I would have been reduced down to Temporary Rehabilitation Renumeration.

Further stress was added by the non-adherence to the Code and Directive in relation to the issuing of a decision in relation to a personal injury under Code 11.37 which is in contradiction to the terms and conditions of the employment on which I joined the Service. I was directed to appeal the decision which was done.

I was then given no rationale as to why it was being refused, the CMOs advices were ignored and then I was informed that I could seek “a review” after an initial review had taken place by a member of staff who had no authority under the Code or Directive to do anything. Therefore, procedurally in the [Service] there is no right of appeal of my personal injury Code 11.37 decision. The only option open to me was solely a review which does not exist in the Code. Then when a review was conducted, I was invited to seek another review if I desired.

The Chief Medical officer has deemed, on May 6th 2022, that there was an association between my medical occurrences and the reported injuries and the subsequent certified absence, yet no Code 11.37 personal injury has been granted.

Overall, procedurally, my Code 11.37 application has not been followed as per the Code thus resulting in significant stress being caused due to significant undue delay.”

Further and more detailed submissions on behalf of the Worker were delivered in the course of the present referral, including:

The [Worker] submits that the failure to investigate her complaint, in early course, the adverse effects caused to her health and the lack of reasonable accommodation resulted in the complainant suffering financial losses and benefits and it is therefore submitted that the [Service]’s actions or lack thereof is the sole reason for such losses and aggravated stress.

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] has clearly exhibited that the procedures used interfered with and diminished her right to fair procedures and that the process used resulted in an unfair decision.

Further and more detailed and specific written and oral submission were made on behalf of the Worker which are discussed, where relevant, below. 

In response to the Workers submissions the Service also provided submissions which are summarised as follows:

On 24 January 2024, ‘the Worker’ submitted her grievances which stated five points:

(1) ‘excessive undue delay’ in relation to her application for injury on duty benefit;

(2) an unspecified ‘total non-adherence to the Code in the making of that decision;

(3) a complaint that the Head of the HR Directorate was not entitled to make a recommendation on 22 December 2023;

(4) a complaint concerning a ‘direction’ from the Head of the HR Directorate of March 2022 to the Worker’s local manager; and

(5) that there was no right of appeal concerning the injury on duty decision to ‘an independent person who has had no part in the process’.

On 8 February 2024, the Service’s Industrial Relations Officer replied to the Worker, informing her that grievances (2)–(4) were collective issues and therefore not amenable to hearing under the individual grievance procedure. In respect of grievance (5), he advised the worker that an appeal avenue was open to her and informed her of how to use it. It was accepted that grievance (1) was validly in the individual procedure.

A meeting was held on 17 April 2024 at Stage 1 of the grievance procedure with the person appointed to conduct that process [“the Appointed Person”]. At the meeting, the worker read a narrative report into the record and clarified that she did not wish to appeal the decision regarding injury on duty benefit. She was clear that the only redress acceptable to her was the reclassification of her period of sickness absence. The only available mechanism for such reclassification is, however, the granting of injury on duty benefit.

The Appointed Person issued a decision on 23 April 2024 upholding grievance (1). On the 1st of May 2024, the Worker’s representative association informed management of the Worker’s intention to make the present referral, which occurred on 16th of May 2024.

It is important that the Adjudication Officer be aware that processes and procedures around the determination of eligibility to injury on duty benefit are presently the subject of collective engagement between the Service and the four staff representative associations.

The Service accepted that there was an ‘excessive undue delay’ in formulating a response to the Worker in relation to her application for injury on duty benefit and it was accepted that her grievance in relation to this delay was rightly upheld. However, it is submitted that the member’s desired redress, namely the administrative reclassification of her period of sickness absence as having been caused by injury on duty, was not appropriate. The admitted failure of the employer to respond in a timely fashion to the Worker’s appeal of 25 August 2022 cannot have the effect of transmuting an absence not caused by injury on duty into one so caused. The worker was entitled to a timely response, which she did not get, but this does not mean that she became entitled thereby to the decision that she wanted.

It was submitted that the Worker has declined to use the appeal channel to the A/Executive Director HRPD. The office of the Executive Director HRPD is the most senior in the Service and the postholder sits on the Senior Leadership Team, effectively the ‘board of directors’ of the Service. The Code provides that she is the ultimate decision-maker concerning injury on benefit applications. It is not possible for an internal grievance process of any type to be conducted by an independent person, as no employee is independent of the employer. Independence of the decision-maker forms no part of the guidelines set out in the LRC Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000). The decision-maker must be independent of involvement in the original decision being appealed against, which would have been the case with Executive Director HRPD. Who was an appropriate person to hear an appeal of the type envisaged.

The worker has not set out the desired redress on the Complaint Form.

The Worker’s failure to use the available avenue in relation to her application for injury on duty benefit meant that no substantive recommendation as regards the application for injury on duty benefit should issue.

Further and more detailed and specific written and oral submission were made on behalf of the Service in the course of this referral which are discussed, where relevant, below. 

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

Terminology

“The Code”

The terms and conditions of employment of workers in the Service, together with various policies and procedures applicable to their employment, are subject to written procedures contained in what will be referred to as “the Code”.  Where collective agreements are concluded between the Service and the representative associations for its workers, the Code is amended to reflect those agreements by way of supplemental communiques contained in Circular Letters and/or Directives. Any reference to “the Code” is a reference to written terms of employment, policies and procedures inclusive of any amendments (howsoever described) where such amendments have been collectively agreed.   

Sick-leave entitlements

In the Service, ordinary illness attracts sick pay initially at full pay and thereafter at half pay. If a worker’s absence on sick leave extends beyond a certain duration, sick leave entitlements are exhausted whereupon the Worker is placed on Temporary Rehabilitation Remuneration (“T.R.R.”). All these entitlements involve the Worker receiving less pay than she would if she were on active service as normal. Furthermore, where a Worker is placed on T.R.R. her service record is adversely affected.

Where however, a Worker is on sick leave arising from an “injury on duty”, a Worker may be deemed entitled to an additional benefit. The effect of this benefit where it is granted, is to place the Worker in the same position as regards service, remuneration and ordinary sick leave entitlements, as would have pertained had the Worker been on active duty during the relevant period of absence. The Code sets out the procedures for the application for and granting of this benefit. However, the term “injury on duty” is not defined specifically anywhere in the Code.   

Description of Senior Managers

The holder of the Office of Head of the HR Directorate will be referred to as “the Head of HR”. The holder of the Office of Executive Director HRPD including in an acting capacity, will be referred to as “the Executive Director”.

“The DRP”

The Code contains a detailed scheme for the internal management of disputes both collective and individual which is referred to as “the DRP”.

Description of Relevant Application

the nature of the application made by the Worker which has been variously described as “A Code 11.37 Application” and a “Personal Injury Code 11.37 Application” will be described as an “Application for Injury on Duty Benefit” which term reflects the principal objective of the application the subject matter of the within dispute, which was to have the sick leave classified as attracting injury on duty benefit.

Timeline of events

For ease of reference the following is the relevant sequence of key events relevant to the issues which are the subject matter of this referral:

19th October 2021            The Worker commenced sick leave citing work-related stress as per medical cert from her doctor.

29th of October 2021       The Worker applied for injury on duty benefit (this date is apparent from the initial Decision of the Head of HR (June 2022 see below).

5th November 2021         The Worker first attended the CMO.

29th of March 2022          “Management Report” Submitted based on consultation with the Worker. This report is relevant to the application for injury on duty benefit and also to the separate process of investigating and addressing the causes of the Worker’s work-related stress.

11th of April 2022             The Worker attended the CMO for the second time.

6th of May 2022                The Worker attended the CMO for the third time.

7th June 2022                     Head of HR issues recommendation that application for injury on duty benefit not be granted. “The June 2022 Decision”

14th July 2022                   Report submitted to CMO from Dr. McGuire, Consultant Psychiatrist.

27th of July 2022               The Worker had a meeting with a member of the Service’s HR staff at AP Level. The issue of an appeal against the decision made by the Head of HR Directorate was discussed.

11th of August 2022         Report submitted to CMO from Worker’s G.P.

21st of August 2022         The Worker wrote “I wish to make an application to lodge an appeal against the decision of [ ], the Head of HR regarding my application for certification under [Section 11.37]

25th August 2022              AP confirms that Workers “notice of appeal” was forwarded to Executive Director, Sickness Section

21st October 2022            AP advises Worker that reminder was sent re Worker’s letter of 25th of August 2022

7th November 2022         The Worker returned to duty.

22nd December 2023       Head of HR Communication re Application for injury on duty benefit (“the December 2023 Communication”).

24th January 2024            Worker submits formal grievance

8th February 2024             Email from Industrial Relations Officer re Grievances

17th April 2024                  Stage 1 Grievance Meeting with “Appointed Person”

23rd April 2024                  Appointed Person issues outcome – Grievance 1 – Upheld

16th of May 2024              The Worker initiates the present referral to WRC having notified the Service of her intention to do so on the 1st of May 2024.

The Purpose and Parameters of the Present Industrial Relations Referral

Non-Interpretation of Code

On the 5th of July 2024, The Labour Court considered a referral under the same provisions of the Industrial Relations Acts as apply to the present referral, regarding a dispute between an individual Worker against the Service. In Recommendation LCR23005 the Labour clarified that:

“The role of the Court in disputes under Industrial Relations Act is to provide its opinion, when requested to do so, in the form of a Recommendation where parties have been unable to find agreement in relation to a workplace dispute. It is not the function of the Labour Court to interpret and determine entitlements under the [ ] Code.”

The purpose of this referral is to formulate recommendations for the resolution of this dispute. The process is not an appeal, a forum for securing legal rulings, an alternative avenue of redress or a substitute for an internal process.

The Injury on Duty Application

The Worker is dissatisfied with the manner in which the Application for injury on duty benefit was handled by the Service. This dissatisfaction is expressed as an objection to the involvement of, to the actions taken by and to the substance of the decision made by, the Head of HR.

As regards the involvement of the Head of HR It is contended that such involvement was a deviation from the agreed procedures reflected in the Code.

The Service explained that the procedures in the Code relating to the handling of applications for injury on duty benefit were adapted in March 2022 (“the Management Adaptations”). The effect of the Management Adaptations was to alter the initial decision-making process at ‘first instance’ in relation to applications arising from certain categories of injury – including those arising in the present case. The Management Adaptations removed that decision making function from local management who were instructed to refer relevant applications directly to the Executive Director for a decision. The net effect of that change was to generate a single final decision. It was considered prudent to insert an additional layer of decision-making from which an appeal would lie to the Executive Director, and this is why the Worker’s application was considered at first instance by the Head of HR, and it was envisaged that an appeal would then lie against that initial or ‘first instance’ decision to the Executive Director.

The Management Adaptations were introduced pursuant to management prerogative, and it was accepted that they were unilateral in nature, not having been agreed collectively with the representative associations including the one representing the Worker in the present case. This situation was identified as a collective issue as so defined in the DRP and for this reason any issues raised by the Worker touching or concerning the procedures relating to or the merits of the application were excluded from the DRP on the basis that they constituted collective issues which were unsuitable for an individual grievance procedure. The grievance also alleged that there was no appeal from the decision of the Head of HR. This grievance too was excluded from consideration by the Stage 1 DRP because an appeal was available which had already been invoked by the Worker, but which had not been pursued.

What was intended was for the decision of the Head of HR to be delivered quickly and for that decision if in the negative, to have been appealed at the election of the Worker, to the Executive Director. Several factors conspired to undermine the effectiveness of that intended sequence.

Even though the application was made in October 2021, the Decision of the Head of HR was not made until June 2022. There was thus a delay in issuing the initial or ‘first instance’ decision.

The Worker initiated her appeal against the June 2022 decision following a meeting with the AP on the 27th of July 2022. There were no written communications regarding this step. The scope and format of the appeal was not clarified in writing. It is thus unclear whether the appeal was to take the form of a review of the decision already taken or a de novo application to the Executive Director.  The Worker submitted a Letter of Appeal on the 21st of August 2022. Its content was focussed on the decision which was being appealed. However, the bulk of the points made were expressed in the form of questions, queries or requests for clarification rather than affirmative submissions or assertions.

There then ensued a long delay running all the way to end of the following year, 2023. By this time the Worker had already returned to full duty, her ordinary illness sick leave entitlements having been completely exhausted but before she was placed on T.R.R. She returned to duty in November 2022 but the response to her appeal was not issued until more than a year later in December 2023.

Turning to the letter from the Head of HR dated the 22nd of December 2023, the second paragraph of this letter (with redactions) stated as follows:

“[] Executive Director [ ] has requested that I address the queries raised by [the Worker] in her correspondence dated 21/08/2022 prior to her reviewing my recommendation that the sickness absence commencing 19/10/2021 remain classified as ordinary illness.”

This letter suggests that when the Executive Director saw the Worker’s Letter of Appeal on the 21st of August 2022, she deemed it prudent to elicit a response form the Head of HR to the queries raised by the Worker. The Executive Director could not herself have responded to those queries without input from the Head of HR and it would clearly have lacked transparency if she simply asked him about them. For example, one of the queries in the appeal letter related to the identity of a named member of staff who, the Worker wrote, she had never met. As it turned out that person had been named in error by the Head of HR in his Decision of June 2022 and in the December 2023 letter. He clarified this error and confirmed that he intended to refer to the person who wrote the Management Report in March 2022.

The foregoing represents an analysis of what was intended and what in fact occurred. The Service’s intentions to deliver a fair and expeditious procedure were not assisted by the initial delay in making the first instance decision in June 2022 which was then compounded by the lack of clarity around the proposed appeal procedure, which in turn affected the way in which the appeal letter was drafted, which in turn necessitated clarification from the Head of HR. However, what ultimately led to the procedure breaking down and failing to deliver, was the delay between the date of delivery of the Appeal letter on the 21st of August 2022 and the date of the letter of clarification from the Head of HR in December 2023, a period of approximately 1 year and 4 months.

There can be little doubt that the procedure applied by the Service whereby the initial decision ‘at first instance’ was to be made by the Head of HR and then appealed to the Executive Director was rendered ineffective in this particular case, primarily by the delay.

The delay issue was processed (to an extent) though the DRP and for that reason it will be considered separately. However, at this point it is noted that during the DRP process, the only outcome sought by the Worker was the granting of the injury on duty benefit or its financial equivalent. This position was not advanced in the present referral, and it was common case that injury on duty benefit can only be granted by way of an application for the granting of such benefit and a decision on that application in accordance with the Code. There was however a dispute as to how and by whom such a decision should be made and in accordance with what criteria.

The Worker contended that the decision should never have gone to the Head of HR in the first place because such a procedure had not been collectively agreed and enshrined in the Code. The Service sees this as a collective issue and not one which should fall to be considered internally or externally in the context of an individual worker dispute. In addition to challenging the involvement of the Head of HR the Worker also challenged the substantive legal and factual basis of the decision itself and contended that it was based on a misapplication of the relevant criteria. These issues cannot be resolved through the present process which has no role in interpreting and determining entitlements under the Code.

What the present process can and should do is to point to a possible resolution of the dispute. There appears to be no doubt that pursuant to the Code the final decision in relation to applications for injury on duty benefit rests with the Executive Director, and this is the case regardless of what previous decision was made and by whom. Accordingly, an internal process exists which allows the Worker to make representations in support of her application and to make submissions on the identification and application of the relevant criteria - including the weighting to be attached to the opinion of the CMO. The fact that what has occurred to date is disputed should not prevent the Worker from invoking this decision-making process nor could her doing so be taken to be acquiescence as to the validity of any decision or decision-making process which has occurred to date. In such circumstances there is only one avenue available to the Worker if she does not wish to accept the decision already made, and this is to refer the application to the Executive Director. 

To this proposal, which has been conveyed to the Worker by the Service both internally and in the course of the present process, the Worker’s position was that the circumstances of this case were such that any decision on the Worker’s application should be made by an independent third party.  In fact, the Worker’s representative went further and suggested that the present referral should perform that function. The Service insisted that no completely independent person exists in the organisation and that all that is required is for the decision-maker not to have been involved in the process before it comes to that person. That person it was contended, was and remains the Executive Director.

Although it would have been better if the Worker had been advised that clarifications were being sought at the time when they were sought, the Executive Director was not responsible for the delay in providing those clarifications. In any event neither of these issues is of relevance to the actual decision which must be made. That decision requires that the application be considered and decided by reference only to the applicable criteria set out in the Code. The Executive Director has taken no steps to embark on this process, and her only involvement has been limited to the gathering of information before making that decision. Moreover, the Worker will have an opportunity to challenge that information and its relevance by way of representations to the Executive Director.

There is not a sufficient basis to contend that the Executive Director’s involvement disqualifies her from making the decision which she is required to make by the Code. Accordingly, I do not recommend in favour of the Worker in relation to the decision being made by anyone other than the Executive Director. Even if the Executive Director’s involvement had been such as to disqualify her from making the decision, the present forum would not represent an appropriate alternative. 

It also follows that the substantive legal and factual submissions and representations made on behalf of the Worker as to precisely what the relevant criteria under the Code are and how they should be interpreted in relation to the application, which were made to the present forum, should be directed to the Executive Director and cannot be the subject matter of any ruling, opinion, or suggested interpretation in the present referral.

If the foregoing analysis is correct, then what is required is a substantive decision by the Executive Director on the Worker’s application. It appears that that decision must be based on the applicable criteria set out in the Code rather than on whether the decision of the Head of HR was correct. If this is so, then the description of the process proposed by the Service is unclear as the terms “appeal” and “review” are used in its communications.  This lack of clarity as to what was (and still) is being proposed has already been identified above as a factor which contributed to the situation where this dispute has arisen. The situation is complicated by the fact that the process which has been undertaken to date is itself disputed. The nature of that dispute is collective insofar as the Management Adaptations made in March 2022 – which brought about the involvement of the Head of HR in the decision-making process - have not been collectively agreed. Whilst the present process cannot make recommendations on collective issues it must still be recognised that the fairness of the procedure which was actually conducted was itself undermined and rendered ineffective primarily by the delay in conducting that procedure. For this reason, in an effort to assist with  the resolution of this particular individual dispute and no other, it is suggested (as distinct from “Recommended”) that in this particular case the parties would engage to agree the parameters of the proposed “appeal” or “review” or application for a decision, on the understanding that any such arrangements would not affect or prejudice ongoing collective negotiations in relation to the issue of injury on duty applications generally.

For the sake of clarity and to provide the parties with room to negotiate, Recommendation 1 below uses the term “decision” instead of “appeal” and “review”. That recommendation is linked to Recommendation 3 to accommodate a situation where any “decision” made in accordance with Recommendation 1 might affect or inform the outcome of any process undertaken pursuant to Recommendation 3.

Delay

Ground 1 of the Worker’s form initiating the internal Stage 1 DRP related to:

“The excessive undue delay in making a decision in relation to my Code 11.37 application which took from 21/08/22 to 22/12/23”

This ground was progressed through the DRP.

A formal meeting to discuss the grievance in accordance with the DRP took place on the 17th of April 2024.  At that meeting the Worker was asked what was required to resolve her grievance. The response was to the effect that that the unnecessary delay had been injurious to her mental health, as well as affecting her sickness record and her finances and that an earlier decision might have allowed her to return to duty earlier.  She did not wish to appeal the injury on duty classification decision. She reiterated that the only resolution of the matter from her point of view was reclassification of the period of sickness absence in question. Her representative clarified that what was sought was a reclassification of the period of sickness absence as personal injury, or a payment for same might also have been acceptable

The outcome of the Stage 1 internal dispute resolution process was stated by the person conducting it (“the Appointed Person”) on the 23rd of April 2024 as follows:

“Several issues concerning your application for injury on duty benefit were raised on your behalf at the meeting, but my task was to decide upon the aspect of your grievance that there was ‘excessive undue delay’ in the making of the decision. Whether one takes 19 October 2021 (ineffective for duty) or 23 August 2022 (appeal) as the starting date for consideration, I have no doubt that the period of time taken did constitute ‘excessive undue delay’. I therefore uphold your grievance.”

It is apparent that the decision in the internal dispute resolution process was based on the ground raised by the Worker in her grievance form as set out above. The delay on the Worker’s case ran from the date of the Worker’s Letter of Appeal of August 2022 - until it received a response – described by the Appointed Person as “the decision” in December 2023.

The Service has accepted that there was an “excessive undue delay” either from October 2021 or August 2022 up to the 22nd of December 2023. However, the outcome does not propose any further action in relation to the delay. Insofar as the Worker’s desired outcome was the reclassification of her illness as injury on duty there was never a realistic prospect of the DRP being capable of delivering this outcome for the Worker as it was beyond the reach of that process and was (and remains) solely within the remit of the Executive Director as provided for in Code as amended. 

I did note that at the DRP Meeting the Worker’s representative indicated that in effect a payment in lieu of a reclassification of the sick leave would also have been acceptable, but it seems to me that this too would have been beyond the reach of the Stage 1 DRP as such a payment would have much the same effect as a decision to reclassify the sick-leave.

The overall impression one gets from the outcome of the DRP is that it generated a positive outcome in that the grievance in relation to delay was upheld, but the procedure was incapable of delivering the actual redress sought by the Worker. The DRP would be capable of generating some form of redress short of the granting of the injury on duty benefit, but first other issues require clarification, namely the status of the application for injury on duty benefit itself and secondly the issue regarding the alleged failure to investigate and to manage the work related stress. The application for injury on duty benefit is as discussed above, incomplete and the issue regarding the alleged failure to investigate and to manage the work-related stress has, as discussed below, not been processed internally at all.

The Recommendation at 3 above is designed to accommodate these complications insofar as it is suggested that when they have been clarified, the entire dispute should then be referred back to the DRP to deal with the (as yet incomplete) issue of redress.

Alleged Failure to Investigate and to Manage Work Related Stress

Submissions

In her Letter of Appeal submitted in August 2022, the Worker made the following complaint – redacted for confidentiality:

“[the Head of HR] has stated “the ongoing absence appears to relate to the [Worker] not wanting to return to work in [Location Stated] and is seeking a transfer”. I now wish to enquire why my sickness absence is being intertwined with my application seeking a transfer to another [Location]. At no point have I ever highlighted my request for a transfer as being a stress trigger to my work-related stress. I do however wish to highlight that I have been found medically unfit to return to work due to work related stress. In fact, during my interview with [author of the Management Report] I emphasised that I had no issues with having to return to work at [Worker’s usual location] and also outline[d] that my sickness absence was in no way connected to my application for a transfer. I find it highly degrading that after twenty-one years unblemished service in [the Service] that my integrity and character is now being questioned in relation to my sickness absence.”

The foregoing clarifies that the Worker took exception to the manner in which her sickness absence was being intertwined with her application seeking a transfer but it also touches on the issue of the alleged failure to investigate and to manage the work-related stress. For this reason it is probably best dealt with under this heading.

In the course of the present referral, the representative for the Worker advanced on her behalf the following grievance:

The Code provides that where [Workers] report non-effective for duty as a result of injury on duty or work-related stress, a thorough investigation should be carried out immediately and the outcome reported to the Executive Director for the assessment and opinion of the C.M.O…Local management shall address the issues causing the member’s stress. The CMO in correspondence dated April 11th, 2022 urged management to give consideration to allowing the Complainant opportunity to address the workload factors as far as reasonably practicable. The Management Report clearly states under the heading “Recommendation” as a support to the Worker’s work-related stress:

“I would recommend that through local engagement that a position in one of the outside [Locations] would assist in the return of [the Worker] to work and alleviate any perceived or future stress in relation to file investigation”

This, it was contended, was not done despite being recommended in the Management Report with the[Worker] remaining on a further forced TRR until her return to work on the 7th of November 2022some 223 days later.

In a supplemental submission it was further contended that the relevant provisions of the Code as amended by a [specified] Directive call for a welfare-focused approach to work-related stress involving the provision of support to the Worker concerned including the investigation and addressing of the causes of the work-related stress. These obligations it was submitted, operate independently of the classification of the sickness absence. In this case the Worker was found by the CMO to have been suffering from work-related stress, and this was supported by the Management Report and thus the criteria for work-related stress were met. These recommendations for reasonable accommodations were not acted upon by the Service as the Worker’s employer. In accordance with recent recommendations from the WRC (IR-SC-0000344 and IR-SC- 0000788) the adjudicators in these matters have recommended that the employee be classified as being on administrative leave for the periods of absence. The Worker requested a similar recommendation for her circumstances. 

The Worker’s representative in oral submissions, explained that a separate and independent process should have been conducted to address the causes of and potential solutions to the workplace stress which led to the absence in October 2021.  It was contended that if an intervention had been made at an early stage (or, it was contended, at any stage) to engage with this issue, it was very likely that the causes would have been tackled, which in turn would have reduced the stress anticipated by the Worker, which in turn would have led to an earlier recovery from her illness, which in turn would have led to an earlier return to work. There was, it was submitted, no such intervention and the Worker continued on sick leave, using up her entitlements and suffering financial consequences, without any effort being made to manage her return to work.

At the hearing the representative of the Service made three points in response.

Firstly, such issues would require medical evidence to support the contention that an intervention to manage a return to work would have shortened the illness and if so by how much time.

Secondly, it was submitted that the complaint was a more appropriate one for another forum in the sense that it is more properly a rights-based legal claim and not one which the industrial relations legislation was designed to accommodate.

Thirdly, the issue as it was formulated in the submissions made by the Worker’s representative in the present referral, had not been raised in the internal DRP. 

Analysis

With regard to medical evidence there is some medical evidence available (CMO Reports 5th November 2021 and 11th of November 2022) which reflect the recommendations of the CMO and the Worker’s willingness to engage.

While a large degree of criticism was levelled at the Head of HR in respect of other matters, this issue was not his responsibility but that of Local management. Moreover, even though it was not his responsibility when the injury on duty issue came before him, the Head of HR  did issue a reminder to local management, in his initial decision in June 2022, to look into the causes and possible solutions. He stated as follows:

“I would ask the question if a transfer or swap could be provided in consultation with HRM in a way that facilitates the [Worker]’s return to manage this matter? The [Worker] should be referred to EAS by way of support in the interim.

Failing the above, the member appears unable to manage her workload at this time, whether the workload is too much or not should be dealt with by local management in consultation with the [Worker].”

The obligation to investigate and address the causes of work-related stress fell on local management regardless of the above or any other direction from the Head of HR. Thus, the focus of any review in relation to this issue would centre on the actions of local management as distinct from those of the Head of HR.

As the Worker returned to work on the 7th of November 2022 the issue is no longer live as such. However, an examination of the circumstances leading up to the return to work may be of some relevance to a review of the entire period of sick leave which preceded that date.

While it is fair to say that the issue would have been better suited to a rights-based legal claim, the fact that such a claim was not made does not prevent the Worker from raising the grievance and seeking to have it addressed. The real question is as to how and by whom it should it be investigated and decided.

The issue of the alleged failure to investigate and to manage the work-related stress, was not investigated or processed internally though the DRP. Although there is reference to it in the notes of the DRP meeting, the ground did not emerge from the other issues with which it was embedded as a discreet stand-alone ground until it was formulated and presented in detail in the submissions (including supplemental submissions) made on the Worker’s behalf by her representative in the present referral process. However, this industrial relations process is not a workplace investigation nor is it an alternative to an internal dispute resolution process. This is the reason why it is not proposed to make recommendations in relation to classifying the sick leave as “administrative leave” on a welfare (or any other) basis as was done in the cases which were referred to by the Worker’s representative. In any event I was informed by the parties that the recommendation made in those cases were appealed which indicates that they did not lead to a resolution of those disputes at that level.

Recommendation 2 below offers a possible route for the resolution of this grievance linked (if and to the extent appropriate) to recommendations 3. 

Summary

The Code specifies that a final decision in relation to the application for injury on duty benefit is to be made by the Executive Director. The present industrial relations referral cannot, and the DRP could not have, performed this function. The Executive Director’s involvement in the process to date does not preclude her from making the necessary decision in relation to the Worker’s application.

Any decision to be made by the Executive Director in relation to the Worker’s application must be based on the relevant criteria set out in the Code and must provide reasons as to whether those relevant criteria have been met. The issues presented by the Worker in the present forum regarding the interpretation and application of those criteria to the Worker’s application are and remain within the exclusive remit of the Executive Director and cannot be determined in the present or any other forum. 

Neither the objection to the involvement of the Head of HR nor his decision or the manner in which it was made can have any substantive bearing on any decision to be made by the Executive Director which is based solely on the application of the criteria in the Code to such an application.   

Although the grievance in relation to the delay in processing the Worker’s application has been upheld by the DPR, the only redress sought by the Worker in that process was effectively the granting of the injury on duty benefit or its financial equivalent, both of which were beyond the remit of the DRP since the granting of such benefit, or its financial equivalent, is vested by the Code in the Executive Director. No further redress in relation to this grievance was specifically sought by the Worker either during the DRP or during the present referral. 

The Worker’s grievance in relation to the alleged failure on behalf of the Service to investigate and to manage her work-related stress from the 19th of October 2021 to the 7th of November 2022 was not presented to the DRP as a separate matter and for this reason it was not investigated and no finding in relation to that grievance has been made. The present industrial relations process does not perform this function. In the absence of an internal finding as to whether and to what extent this grievance is upheld, the issue of redress for any failures, whether based on welfare considerations or otherwise, cannot be assessed or determined.

Given the various observation made above it follows that I do not recommend concession of the claims made by the Worker such as they were formulated. Specifically, I make no recommendation on the merits of the Worker’s application for injury on duty benefit as that application can only be decided upon by the Executive Director and no such decision has been made as matters stand. I do not recommend that the decision on the Worker’s application be made by anyone other than the Executive Director.  However engagement between the parties to accommodate the unusual and very particular circumstances of this individual case is required to clarify the parameters of the process whereby a decision would be made by the Executive Director.

Insofar as I was invited to recommend redress in relation to the alleged failure to investigate and to manage the work-related stress I must decline to do so as this grievance has not been processed through the internal procedures.

As regards the grievance in relation to the delay in processing the injury on duty application, this grievance has been upheld internally but the only redress sought internally was for the granting of the injury on duty benefit which measure, being within the exclusive remit of the Executive Director was and remains beyond the reach of the DRP.

Notwithstanding the above, it remains an option for the Worker to request a decision on her application for injury on duty benefit from the Executive Director. It also remains an option for the Worker to present a specific grievance - in relation to the alleged failure to investigate and to manage the work-related stress - to the internal DRP and to seek a finding in relation to that grievance. If and to the extent that a finding is made in that process upholding the Worker’s grievance, then such a finding, together with the previous finding already made in relation to the delay grievance, can then be submitted together to the DRP with a view to deciding on the appropriate redress for the Worker in respect of any financial and non-financial loss arising from her grievances. Clearly however the question of financial loss could only arise where the application for injury is refused by the Executive Director or where the Worker decides not to request such a decision. As regards redress for non-financial loss, the Worker would need to be consulted as to what form of redress is preferred.

The recommendations which follow, though not sought specifically by the Worker are nonetheless offered as a possible means for the resolution of the dispute.

 “Injury on Duty” – Directive 139/2010 -  Code 11.37 – Personal Injury – Work-related stress – DRP – Collective Issues - Delay - LCR23005 - IR-SC-0000344 - IR-SC- 0000788