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 - 00005289

07/10/2025

The Worker referred her dispute to the Director General of the WRC pursuant to the Industrial Relations Act, 1969 on 7 October 2025.

The Worker’s claim relates to the alleged failures regarding the classification of the Worker’s illness; the alleged failure to progress a Chief Medical Officer (‘CMO’) referral; the severe delay and non-engagement in an appeal; and the refusal to process a grievance under the Dispute Resolution Process (‘DRP’).

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.

The issues referred to the WRC are: (1) failure to adhere to the relevant Code / relevant Directive (2) failure to progress a CMO referral (3) severe delay and non-engagement in appeal and (4) refusal to process grievance under DRP.

Chief Medical Officer (CMO) Referral - April 2020

On 19 April 2020, the Worker raised concerns with her superiors regarding the difficulties she was experiencing in the workplace, their impact on her mental health and the medical treatment she was undergoing. A report was forwarded to the office of an official four ranks above the Worker highlighting the local management’s concerns for the mental health of the Worker. This report was forwarded to the Chief Medical Officer (‘CMO’) who on 15 May 2020 agreed that an appointment was warranted. A unit report was then sought by the CMO and was completed by management and the Worker on 15 June 2020. The Worker understood that an CMO appointment would follow. However, no such appointment was arranged at that time, and no explanation for the lack of progression was provided.

The Worker’s circumstances changed significantly in 2021 and in June 2021 the Worker again raised the difficulties she was experiencing with her superiors. She sought adjustments to her working arrangements that might have alleviated the stress she was under. In the absence of the occupational health guidance no adjustments were made.

The Worker submits that this demonstrates that, over a sustained period, management were aware that she was experiencing work-related strain. The occupational health mechanism was triggered and approved, but no occupational health assessment took place at the time when it could have been most beneficial.

The Employer’s Occupational Injury Scheme

The Employer’s employees are covered by the Public Services Management (Sick Leave) Scheme Regulations, 2014. However, where there is an Occupational Injuries Scheme in place in the public service employment, the scheme operates outside of those entitlements. Code 11.37 is a recognised injury-on-duty framework and must be applied in accordance with its own procedures.

Application for 11.37 Status and Investigation

As the Worker reported sick and unfit for duty on 27 December 2021, the Divisional Officer in dealing with same should abide by the relevant Code, specifically section 11.37.

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 [a person five ranks above the Worker], Human Resource Management. A decision regarding culpability will be made locally by the Divisional Officer except in the cases where:

(a)    The Divisional Officer is of the opinion that the injuries were due to wilful default or negligence on the part of the member.

(b)    The Divisional Officer has a doubt about the matter. In such cases the file will be forwarded to [a person five ranks above the Worker], Human Resource Management for directions.

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

In addition to the Code, the relevant Directive governs situations where there is a doubt that an injury on duty occurred.

Injury on Duty Classification

Where there is any doubt that an injury on duty occurred, 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.

Ordinary illness / injury on duty

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

Investigations

Where members report non-effective for duty as a result of an injury on duty or work-related stress, a thorough investigation shall be carried out immediately and the outcome reported a person five ranks above the Worker, HRM for the attention of the CMO.

HQ Directive provides that where a member reports non-effective for duty because of work-related stress, a thorough investigation shall be carried out immediately, and the outcome reported to HRM for the attention of the CMO. Local management are also expected to address the issues causing the employee’s stress. This requirement is not optional. It forms part of the structured framework governing how work-related stress absences are to be managed within the Employer.

The importance of this investigative stage is reinforced in Deming Gao v The Commissioner of An Garda Siochana [2018] IEHC 244, where the High Court outlined the components required for a proper determination concerning injury-on-duty / work-related stress classification.

The Complainant’s medical certification from her GP recorded her absence as due to work-related stress. This triggered the procedural obligation under the Directive to conduct a thorough investigation into the workplace factors contributing to that stress.

A person two ranks above the Worker was appointed by a person four ranks above the Worker to investigate the source of the Worker’s stress and the work-related stress aspect of the Worker’s absence from the workplace.

The person’s two ranks above the Worker report dated 30 January 2020 gave an account of a discussion with the Worker, who at the time was on medication and still out on sick leave, into her work issues and reasons for her absence from the workplace. The report also refers to a report which she states was given to her by the Worker. The two reports differ substantially.

The person two ranks above the Worker made a reference to an incident where an ambulance was called to the home of the Worker where she was later admitted to hospital. This occurred on 30 January 2022 and was attended by the person two ranks above the Worker. Yet on the same date, at 22.52pm, the person two ranks above the Worker emailed the Employer’s management stating that she believed there is not any work-related matters that warrant an investigation.

It is contended by the Worker that the actions and non-actions of the person two ranks above the Worker are contrary to the Employer’s Code 11.37 and the Directive and the workplace issues raised by the Worker were not examined through any formal investigative framework.

On 24 of August 2022, the Worker received an email from the person two ranks above the Worker stating that her 11.37 application had been reviewed and refused by the person four ranks above the Worker. This is also contrary to the Employer’s Code and HQ Directive. In essence, a person four ranks above the Worker can award a 11.37 certificate. If he/she has a doubt or feels that there has been wilful neglect or negligence on behalf of a worker, the file must go to HRM for direction and final decision. The current decision maker within the Employer is the Executive Director HRM.

Following the email on 30 January 2022 by the person two ranks above the Worker, no further action was taken in relation to the work-related stress of the Worker until she received the decision of the person four ranks above the Worker. The refusal occurred in circumstances where the mandatory investigative step had not been properly carried out.

Return to Duty

Under the CMO supervision, the Worker returned to work on 7 September 2022 with reasonable accommodations and supports in place.

Appeal, Delays and Lack of Engagement

On 29 May 2023, the Worker’s representative sought clarification from a person four ranks above the Worker (Mr D) on how an appeal could be progressed and what was the rationale underpinning the decision. The person four ranks above the Worker directed the Worker to complete a Freedom of Information request for a copy of her Code 11.37 file.

The material disclosed informed the Worker’s understanding of how her case had been handled and led directly to the formal appeal which the Worker submitted on 17 April 2024 to Mr D, the person four ranks above the Worker who, in turn, forwarded it to HRM for consideration as part of the formal process. No response issued from HRM for over twelve months.

A response issued on 20 May 2025, albeit in the context of the matter being pursued as a grievance under the Disputes Resolution Procedures, stated that “… there is no avenue for appeal for decisions concerning injury on duty benefit within our organisation…”.

The lack of response from HR forced the Worker to go down the grievance route through the Dispute Resolution Procedures (DRP).

Dispute Resolution Procedures Complaint

The Worker lodged her complaint in May 2025 to Mr D (four ranks above the Worker). The complaint related to delays, lack of procedures concerning the Code and Policy, CMO appointments and severe lack of engagement from HR. These are all legitimate grievances contained within the scope of the DRP.

On 20 May 2025, Mr D (four ranks above the Worker) wrote to the Worker stating that there was no avenue for appeal of decisions concerning injury on duty benefit within the organisation, and he must conclude the Worker’s ERB1 on procedural grounds.

He confirmed that ”… should a grievance be lodged via ERB1 solely in respect of the delay in processing your application for injury on duty benefit, as opposed to the substantive decision itself, this may fall within the parameters of that process and may be advanced.”

This decision of Mr D (four ranks above the Worker) differs distinctly from his approach 12 months prior.

The Worker’s representative replied on the same date explaining the DRP process and the sections that all of the Worker’s issues are covered under. It was explained that the complaint was not necessarily about the decision to grant or not the 11.37 certificate, but about the failure to follow procedure when the decision was reached. Furthermore, the failure to arrange a CMO appointment was not investigated.

The matter was further sent to the person five ranks above the Worker who, without investigation, stated that grievances concerning Code 11.37 / HQ Directive 139/2010 are not amenable to the Disputes Resolution Procedures. The organisation considered the matter closed and a referral to the WRC by the complainant would not be objected to.

Conclusion

This dispute concerns the manner in which the Worker’s work-related stress absence and subsequent appeal were handled, and whether the applicable policies and procedures were properly applied.

The Worker submits that there was a sequence of procedural failures rather than a single administrative oversight. A referral to Occupational Health in 2020 was initiated, accepted, and supported by a Unit Report, yet no CMO appointment followed. This represented a failure to complete the occupational health pathway at an early stage when management were already aware that the Worker was experiencing work-related stress.

When the Worker was later certified unfit for duty due to work-related stress by her GP, the structured investigation required under the Directive was not carried out in the manner envisaged by the policy. Instead, a managerial view was formed without the completion of a proper investigation process or the compilation of a full investigative record. This omission is particularly significant in light of the High Court’s judgment in Deming Gao v Commissioner of An Garda Síochána, where the Court made clear that determinations concerning injury-on-duty and work-related stress classification must be grounded in a complete investigation file, incorporating both management input and medical assessment. The absence of such a process in this case directly undermined the procedural integrity of the subsequent refusal to classify the Worker’s absence under Code 11.37.

This is further compounded by internal management directions to its senior officers in relation to the management of work-related stress investigations dated 30 May 2018 and again 25 March 2021. These are clear instructions from Sickness and Absence Section to the Divisional Officers (four ranks above the Worker) across the entire organisation. The actions from local management into their decision not to investigate or award an 11.37 certificate to the Worker not only is contrary to the Code and HQ139/10, it also goes against internal directions issued to senior management.

When the Worker sought to challenge that decision, her appeal, lodged in April 2024 after she obtained further information through FOI, remained without any response for over a year. This prolonged lack of engagement compounded the uncertainty surrounding her status and extended the financial consequences of the disputed classification.

When she then sought to use the internal Disputes Resolution Procedures to address the handling of her case, management declined to engage under that framework, despite the DRP expressly providing for grievances concerning the way in which internal processes have been applied, including issues of delay and failures of policy and procedures. The practical effect of that refusal was to deny the Worker access to the organisation’s own internal dispute resolution mechanism, leaving referral to the WRC as her only remaining avenue.

Taken together, these matters demonstrate non-adherence to established policies and procedures, including the occupational health and work-related stress management framework, the investigative requirements underpinning Code 11.37 determinations, and the operation of the DRP.

The impact on the Worker has been significant. She has experienced financial loss, prolonged uncertainty, and additional stress at a time when she was already dealing with a medically certified work-related condition. The manner in which her case was handled undermined her confidence that the systems designed to support members in difficulty would operate fairly and effectively.

From an industrial relations perspective, this case fails to be considered through the lens of fairness, reasonableness, and adherence to agreed workplace procedures rather than strict legal entitlement alone. The Worker’s case is that the processes designed to support employees experiencing work-related illness were not applied in a timely or meaningful way, and that internal mechanisms intended to review and resolve such concerns did not function as envisaged. The cumulative effect of delay, procedural omission, and non-engagement is precisely the type of workplace relations difficulty that the industrial relations framework is intended to address, with a view to restoring fairness and confidence in the operation of internal procedures.

In these circumstances, the Worker seeks a recommendation that her sick absence be reconsidered in accordance with the applicable policies and procedures, that the procedural shortcomings in the handling of her case be formally acknowledged, and that redress be awarded to reflect both the financial loss and the distress caused by the prolonged and unsatisfactory engagement with her case.

The Employer submits as follows.

The application of the Public Service Management (Sick Leave) Regulations 2014 to the employees of the Employer is governed by Code 11.37 as supplemented and amended by HQ Directive 139/2010. That directive makes a distinction between ‘injury on duty’ and ‘ordinary illness’, the significance being that the relevant Code (Finance) 3.41 provides that ‘Where the illness is attributable to injuries received by the member in the execution of duty without wilful default or negligence on his/her part, full pay may be allowed while there is a reasonable probability that the member will be able to resume duty.’

In practical terms, if injury on duty benefit is granted, pay inclusive of unsocial hours premia applies indefinitely to the injured worker, ceasing only on return to duty or if it becomes unlikely that he or she will be able to resume duty (in which case medical retirement is likely to occur). Entitlements under the public service sick pay scheme are also preserved in full. Injury on duty benefit can be, and usually is, backdated to the commencement of the absence.

BACKGROUND

The sickness absence in question began on 27 December 2021 and ended in September 2022.

On 21 August 2022, Mr G (four ranks above the Worker) received a report from the person two ranks above the Worker concerning the Worker’s sickness absence. The person two ranks above the Worker concluded that that ‘[the Worker] has presented no information that would constitute “injury on duty” and I do not recommend the issuing a certificate in accordance with Code 11.37.’

On 24 August 2022, the person four ranks above the Worker decided that ‘that this is not a work related injury on duty and therefore no 11.37 should issue in this case.’

The Worker wrote on 17 April 2024 to Mr G’s successor, Mr D (four ranks above the Worker), submitting what she described as an appeal. The reasons stated for appeal in the document were

·       ‘failure of management to fulfil the referral to the CMO in June 2020 …’;

·       ‘no assistance in my work/life balance issues …’; and

·       ‘Sick Report of [person two ranks above the Worker] which I cannot concur with as a true [re]flection of the issues I had.’

There was no explanation for the period of twenty months between the injury on duty decision and the submission of the appeal document.

On 9 April 2025, the Worker submitted a grievance in the internal procedure. It is the position of the Employer that grievances concerning injury on duty benefit are not appropriate to this procedure. Nevertheless, Mr D (four ranks above the Worker) met the Worker at Stage 1 of the procedure on 28 April 2025 and informed her in writing on 20 May that the matter could not be appealed therein. He nevertheless forwarded her document to the HR department at the Employer’s HQ.

MAIN ARGUMENTS

Application ‘denied without reason …’

Mr G (four ranks above the Worker) stated his reasons for denying the application for injury on duty benefit on 24 November 2022. ‘Injury on duty’ is a normal English phrase without further formal definition and it is submitted that it was quite reasonable for him to conclude from the person’s two ranks above the Worker report simply that no injury on duty had occurred.

The relevant Code (Finance) 3.41 requires that absence be ‘attributable to injuries received by the member in the execution of duty’ for injury on duty benefit to be considered.

‘… nor in line with procedures…’

The Worker has not set out in what manner she contends that her application was not dealt with in line with procedures.

It will be common ground that the decision as to whether or not to grant injury on duty benefit is in principle that of the Divisional Officer (a person four ranks above the Worker). HQ Directive 139/2010 requires that a Divisional Officer should refer the matter onwards if there is ‘any doubt’ that an injury on duty occurred. However, in this case, Mr G (four ranks above the Worker) was not in doubt but was, rather, quite clear that no information suggesting the occurrence of an injury on duty had been provided to him.

For the avoidance of doubt, the question of ‘wilful default or negligence’ has never been an issue in this matter. Nor does the Employer dispute that the Worker was suffering from work-related stress.

Non appointment to the CMO

Following a request on 23 April 2020 from local management for an appointment with the CMO, the Occupational Health Department requested reports from the member’s treating doctors, which reports were not forthcoming. This is why an appointment was not arranged at that time.

It is important to note that the Worker was not on sickness absence in April 2020. She did not report sick until December 2021, following which an appointment was made with the CMO for 10 March 2022. Further appointments were arranged for December 2022 and May 2023 (i.e. after return to duty). At the expense of the employer, appointments were also arranged with a consultant psychiatrist in April 2022 and November 2023.

The matter before the Adjudication Officer is an industrial dispute rather than a personal injury claim, and so it is not necessary to address the Worker’s contention in her Complaint Form that a failure to provide an occupational health appointment in the spring of 2020 ‘could have addressed her ongoing issues … leading to my extended absence in December 2021’. It suffices to point out that the role of the Occupational Health Department is not to determine the appropriate course of action in respect of the medical treatment of employees, which is a matter between them and their treating physicians. The purpose of that department is to provide advice on work-related issues with regard to health to the Employer.

It is not understood how a failure to arrange an occupational health appointment in April 2020 (when the Worker was fit for duty) could be held to have caused the subsequent illness in question but, in any case, payment of injury on duty benefit does not depend on illness having been caused by the acts or omissions of the Employer, but on whether or not the absence was attributable ‘to injuries received by the member in the execution of duty’(emphasis added).

The April 2024 report refers, in the section titled ‘Issues leading up to reporting non-effective for duty’, to ‘unsuccessful applications since 2019’, to the difficulty of the Workers managing her workload and attendance as a single parent, to an unsuccessful application for transfer to community policing, and her feeling that applications for annual leave were ‘met with hostility’. There is no reference therein to any injury received in the execution of duty.

Refusal to consider her grievances in line with the Disputes Resolution Procedures

As stated above, no appeal procedure from an injury on duty benefit decision presently exists within the Employer. A former ad hoc process involving a preliminary decision followed by appeal to the Executive Director, Personnel & Development, was stopped following objections from the Worker’s association. It is submitted, nevertheless, that a reasonable decision was reached following a fair process and that procedural perfection is not required in workplace matters.

It is acknowledged that it would have been better if a further formal response had issued to the Worker in respect of the April 2024 report, but as no appeal procedure exists, no further substantive consideration could have occurred and no delay could be said to have occurred.

In any event, it would not be reasonable for any worker to wait for 2½ years before seeking to use the workplace grievance procedure in respect of a dispute concerning entitlements.

The Disputes Resolution Procedures are collectively agreed between the employer and the four representative associations, including the Worker’s association. The Labour Court recommended in An Garda Síochána & A Worker LCR 22724 that:

If the parties are disagreed nationally as regards the correct operation of their agreed procedures … that disagreement should properly, in the view of the Court, be addressed directly as a national matter in the appropriate forum.

It is submitted that the Worker was afforded her full entitlements under the Public Service Management (Sick Leave) Regulations 2014 during her period of sickness absence.

Moreover, the injury on duty scheme is not intended to be a supplementary sick pay scheme additional to that provided generally across the public service. It is common ground that the additional benefits in dispute are applicable only where absence is ‘attributable to injuries received by the member in the execution of duty’.

The Labour Court has stated that ‘[i]t is not the function of the Labour Court to interpret and determine entitlements under the Garda Code’ (An Garda Síochána & A Worker LCR23005). It is submitted that this is not the function of an Adjudication Officer either. Determining entitlements under the Code was, however, in the context of the present dispute, the function of the person four ranks above the Worker. The person four ranks above the Worker decided that ‘injuries received by the member in the execution of duty’ were not present in this matter. It is submitted that this was a reasonable position for the Employer to reach.

The Employer asks that no substantive recommendation be made, noting that the Court stated in South Dublin County Council & A Worker LCR22749 that it was ‘no part of its role to direct a management as to how they manage’.

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

The Worker’s dispute relates to the following matters: failure to adhere to the relevant procedures regarding classification of her absence; failure to progress a CMO referral; severe delay and non-engagement in an appeal; and refusal to process grievance under DRP.

Classification of Absence

The Worker applied to be granted Code 11.37 status. The Employer refused this application. There was no dispute that the Worker’s absence was certified by her treating doctor as due to “work-related” stress. The Employer did not dispute that the Worker was suffering from work-related stress. The Employer also emphasised that the issue of ‘wilful default or negligence’ did not arise in this case.

At the hearing both parties relied on Code Chapter 11.37 and extracts from Directive 139/10, which are quoted above.  

The Code opens with “If a member suffers personal injury . . .” and then goes on to outline the role of the Divisional Officer with respect to determining ‘culpability’ of the member in relation to that injury (the ‘doubt’ of the Divisional Officer referenced at 11.37(1)(b) appears to be doubt in relation to culpability only). 

The Code does not deal with classification of absence (a point which was noted in Gao v. The Commissioner of An Garda Síochána [2018] IEHC 244 at [61 - 62]).  Rather classification of absence (i.e., whether it is due to an ‘injury on duty’ or an ‘ordinary illness’ for the purposes of enhanced benefits) appears to be governed by Directive 139/10.

In Gao, the High Court provided invaluable guidance regarding the matter. Atpara 58-63, the High Court addressed that a Code 11.37 does not pertain to “injury on duty” but rather to “personal injury.” At para 62, the High Court stated:

62. Provided that an injury was not due to wilful default or negligence on the part of a member within the meaning of s. 11.37(1) of the Code, the issue of the classification of the status of a member’s sickness absence appears to be governed solely by the Directive and specifically the marginal note for which it makes provision at s. 11.40 of the Code. The relevant extracts from the Directive are set out at para. 10 above and their meaning and effect appear to be 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 such 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 a referral, the Assistant Commissioner, HRM, must seek the advice of the C.M.O.;

(5) the C.M.O. 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:

(i) A complete investigation file into the incident; (ii) Management views and recommendations; (iii) The assessment and opinion of the C.M.O.;

(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.

At para 63 the High Court addressed work related stress/injury as follows.

63. The Directive further provides for the carrying out of investigations in the marginal note provided for at s. 11.37 of the Code, which is referred to at para. 11 above. The requirement to carry out an investigation in such circumstances arises even where there can be no doubt but that the relevant injury/stress is work related. The requirement thus appears to be directed towards the promotion of garda welfare and is unrelated to the administrative classification of the status of the relevant member’s sickness absence. This is made clear by the fact that the outcome of such an investigation is to be reported to the Assistant Commissioner without any requirement that he/she should seek the advices of the C.M.O. or make any decision which would in anyway affect the classification of the status of the member’s sickness absence.”

It appears from the above that if the Divisional Officer is satisfied that an injury on duty has occurred, the injury can be so classified by the Divisional Officer (subject to determination of culpability under Code Chapter 11.37).  It appears that if a Divisional Officer is not satisfied that an ‘injury on duty’ actually occurred then a ‘doubt’ has arisen and accordingly the above procedure must be followed.     

I note that Directive 139/10 under the subheading “Investigations” also provides that where a member reports ‘non-effective’ for duty as a result of an injury on duty OR work-related stress, an investigation must be carried out and the outcome reported to the Executive Director HRPD for the attention of the CMO. 

Thus, it appears that either way i.e., the Divisional Officer has ‘a doubt’ whether an injury actually occurred and/or the absence is due to ‘work-related stress’, Directive 139/10 requires the Divisional Officer to refer to the Executive Director HRPD (albeit for different purposes).

I note that a memo issued to all officials of the relevant rank on 25 March 2021 stating :

“Please do not issue certificate in accordance with Code 11.37 if any of the following are being reported as the reason for an absence or incident:

·       Work related stress or work related factors

·       …

If any of the above examples are being cited as the reason for an absence and a member is seeking a certificate in accordance with Code 11.37 (even if it appears that the CMO has assigned causality between the illness and the reason for the absence), please refer these matters to Sick Section for onwards transmission to Executive Director HRPD for a recommendation in accordance with HQ Directive 139/10. Please submit a complete investigation file into the incident along with management views and recommendations.

The file together with the advices of the CMO, will be taken into consideration when making a recommendation into the applicability of Code 11.37 in accordance with HQ Directive 139/10. These absences are to remain classed as Ordinary Illness until a recommendation issues, therefore please submit reports as soon as practicable.

…”

In this case, there was no dispute that the Worker was certified by her treating doctor as suffering from work-related stress. She commenced her sick absence on 27 December 2021.

However, it appears that, having met with the Worker at a time where she seemed to have been extremely unwell, the person two ranks above the Worker, while requesting the matter to be “forwarded to OHS without delay and an early appointment sought”, expressed her opinion that she did not believe “there is aby work related matters that warrant an investigation.” (email of 30 January 2022).

In her email of 21 August 2022, the person two ranks above the Worker stated that the Worker “has presented no information that would constitute “injury on duty” and I do not recommend the issuing a certificate in accordance with Code 11.37.”

The person four ranks above the Worker on 22 August 2022 replied that “I agree that this is not a work related injury on duty and therefore no 11.37 should issue in this case.” This decision was communicated to the Worker by the person two ranks above her on 24 August 2022. No reasoning as to how the decision was arrived at was provided.

Considering the foregoing, I cannot accept the Employer’s proposition that “a reasonable decision was reached following a fair process and that procedural perfection is not required in workplace matters”. As there was no reasoning provided to the Worker, she could not know whether the decision was reasonable. Furthermore, I accept the Worker’s assertion that the correct procedure was not followed. 

Failure to progress a CMO referral

There was no dispute that the Worker raised her mental health difficulties with her superiors on 19 or 20 April 2020. The person three ranks above the Worker, some two days later, informed the person four ranks above the Worker of the matter and noted that he considered “it appropriate to report this matter so that arrangements can be made, if considered necessary, to have [the Worker] attend with the Chief Medical Officer”.

The Assistant CMO wrote to the Head of HR Directorate stating that “an appointment is warranted”. In turn, a letter issued on behalf of the Head of HR Directorate to the person four ranks above the Worker requesting a Unit Report including e.g. work performance, history of attendance, coping skills, relationship with peers and supervisors, and any other concerns. A report was provided on or around 15 June 2020.  The Worker disputed that she was requested to furnish reports from her treating doctors. She said that he received a generic letter stating that if she had any medical records, to send them to the CMO. No appointment was arranged for the Worker at that time.

It is not my role to ascertain what impact, if any, an early intervention would have on the Worker’s health. However, it is clear that as early as mid-2020 the CMO was of the view that an appointment was warranted. Given the nature of the Worker’s role, I find it surprising that no such appointment was arranged for the Worker until 10 March 2022. I cannot accept that the fact that the Worker was not on sickens absence can excuse the delay.

Severe delay and non-engagement in appeal and the use of the Dispute Resolution Procedure

The High Court in Gao noted that the process pertaining to an application for the granting of a Code 11.37 certificate allows for no appeal within it. Regrettably, some eight years later, the matter remains unresolved and there was no dispute that that there was no appeal option available.

The fact that no appeal mechanism exists to challenge a decision made under Directive 139/10 and/or Code Chapter 11.37 is a collective matter for negotiation between the parties. It is not within the WRC’s remit to recommend that the DRP be used as an interim appeal mechanism under Directive 139/10 and/or Code Chapter 11.37 pending agreement on an appeal process. 

However, one of my concerns regarding the appeal and the DRP is the lack of clarity and transparency surrounding the processes.

In or around May 2023, the Worker made inquiries how to gain access to a copy of the decision to refuse her application. She was directed to submit a Freedom of Information request to obtain sight of the decision.

On 15 March 2024, having received a copy of her file, the Worker emailed the person four ranks above her seeking to appeal the decision regarding her sick absence. She then submitted a formal appeal on 17 April 2024. This followed by ERB1 form in line with the Dispute Resolution Process.

It was not until May 2025 that she was advised that there was no avenue for appeal of the decision concerning classification of her illness. However, she was told that she could lodge a grievance solely in respect of the delay in the process.  I note that the Worker’s ERB1 form addressed the “issues and delays” in the context of her absence classification. She addressed the matter of lack of the CMO appointment despite a referral in April 2020, and the lack of engagement in relation to the appeal.

The matter was forwarded to the person five ranks above the Worker, who on 14 August 2025 decided that matter related to Code 11.37 and HQ Directive 139/10 are not amenable to DRP.

From May 2023 until 14 August 2025, there appears to have been very little clarity as to the process the Worker could have or should have followed to clarify the concerns she might have had.  Furthermore, while I accept that the DRP is not a substitute for a non-existent appeal process for the decision regarding absence classification, the Worker was advised that matters other than the substantive decision on her application could be progressed through the DRP. It is unclear why other concerns raised by the Worker such as the delay or the failure to make CMO arrangements could not have been addressed through this process. In this context, the absence of clarification or a reasoned reply to the Worker deprived the Worker of the clarity to which she was entitled.

 I recommend that the Employer now consider the Code 11.37 application, pertaining to the period of the Worker’s absence from 27 December 2021 to 7 September 2022, correctly, in line with the clarifications and very clear guardrails set out by the High Court in Gao v. The Commissioner of An Garda Síochána 2017 No. 909 J.R., and that a reasoned decision is issued to the Worker within 42 days of the date of this recommendation.

I recommend that the Employer pays the Worker within 30 days of the date of this recommendation €10,000 compensation in respect of:

·       the failure to process the Worker’s application correctly and in a timely fashion;

·       the failure to address the Worker’s grievances (other than her appeal of the decision regarding her absence classification) in a transparent and timely manner.

Absence classification – failure to address grievances-