Worker

Employer

Anonymised Parties

A Police Officer

A Police Force

Representatives

A Representative Association

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 - 00004147

17/04/2025

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

IR - SC - 00004148

17/04/2025

The Worker referred two disputes to the WRC on 17th April 2025.

IR-SC-00004147 - Classification of Absence

In January 2024, the Worker was allowed to follow a modified work schedule based on medical advice while awaiting an appointment with the Chief Medical Officer (CMO). However, in September 2024, before the CMO review took place, her superior informed her that she must stop using the modified schedule and instead follow newly agreed national rosters. This instruction conflicted with provisions of the national agreement and was issued despite no change in her medical condition or medical advice. The Worker requested that the change be postponed until after the CMO assessment, but this request was refused.  The instruction caused the Worker to feel stressed, and she went on sick leave from 25th September 2024 to 15th December 2024 until interim CMO advice was obtained allowing for resolution of the matter.  It is the classification of this period of leave that is the subject of this dispute.

The Worker requested that her absence be classified as an ‘injury on duty’ but on 24th February 2025 the Head of HR Directorate instead classified it as ‘ordinary illness’. The Worker disputes this decision, arguing that:

1. The classification is incorrect because her absence resulted from ‘work‑related stress’ caused by an instruction that conflicted with medical advice, not from her negligence or wilful default.
2. The mandated procedure for determining the classification of absences was not followed in that the decision to classify the absence as ‘ordinary illness’ came from the Head of HR Directorate and a complete investigation file and properly informed CMO advice were not in place at the time the decision was made.
3. No appeal mechanism exists to challenge the decision.

The Worker suffered actual financial loss and will suffer future adverse consequences as a result of the Employer’s actions.  The Worker requests the WRC to: (i) reclassify the absence for work-related stress as an injury on duty, or in the alternative, as an absence other than sick leave (with the resulting restoration of all associated entitlements and correction of leave records to avoid adverse consequences arising from the misclassification), (ii) a finding that management failed to follow the correct procedures in relation to the classification of absence; and (iii) compensation for the loss and distress suffered and for the failure to follow fair procedure.  The hearing was directed to the findings of the High Court in Gao v. The Commissioner of An Garda Síochána [2018] 244; ADJ-00053981; ADJ-00043513; IR-SC-00001943; IR-SC-00003099; IR-SC-0000788 and IR-SC-00000344.

IR-SC-00004148 - Use of Dispute Resolution Procedure

The Worker submitted a grievance under the Dispute Resolution Procedure (DRP) regarding points 2 and 3 above and also raised concerns about the lack of transparency (non-disclosure of CMO’s advice) surrounding the process used to classify her absence.  The Employer refused to entertain the grievance on the basis that the DRP could not be used in the absence of an agreed appeal mechanism.  The Worker made repeated attempts to resolve her grievance through DRP, but her efforts were consistently blocked.  Her exclusion from the DRP is a violation of Directive 03/2020 and has caused her significant distress for which she seeks compensation.  Further, until a formal appeals mechanism for classifying absences is agreed, the WRC should direct that Workers be allowed to use the DRP to challenge such decisions.  The hearing was directed to the recommendation of the Adjudication Officer in IR-SC-00000344.

The Regulations governing sick pay (as supplemented by the Code & Directive 139/2010) distinguishes between ‘injury on duty’ and ‘ordinary illness’.  Code 11.37 and Directive 139/2010 provide for the procedures to be followed where a Worker suffers injury on duty.

Rostering arrangements are governed by a national agreement which applies to all members.  This came into effect on 30th September 2024.  The Worker was invited to submit medical advice in advance of the implementation of the agreement.  No updated medical advice was received, and the Worker was accordingly directed to work a roster in accordance with the national agreement. 

The Worker objected to this direction.  She went on sick leave and raised a grievance.  The grievance was dealt with under the DRP.  The grievance was resolved on 13th December 2024.  The Worker returned to work.  The Worker then raised a second grievance under DRP following a decision not to grant her application under Code 11.37.  The Employer declined to hear this grievance on the basis that what gave rise to the absence could not be perceived as an injury on duty.  A communication had been issued to senior leadership in 2021 to advise that work related stress inter alia is to be referred to the Sick Section for consideration. It is not the function of the WRC to interpret and determine entitlements under Code 11.37 (LCR 23005 refers).

There is no agreed appeal process in place in relation to Code 11.37.  Collective discussions have taken place, and proposals are under active consideration by the parties.

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

IR-SC-00004147 - Classification of Absence

The Worker requests the WRC to reclassify the Worker’s absence as an ‘injury on duty’.  This would require the WRC to accept the Worker’s submission that there is no doubt that an injury on duty occurred and to substitute the WRC’s view on the merits of an internal process for that of the original decision-maker.  As outlined at the hearing, this is not the function of the WRC when assessing the merits of a dispute: the WRC will not insert itself into the decision-making role of the Employer.

The Worker also requests the WRC ‘make a finding’ that management failed to follow the correct procedure in relation to the classification of the Worker’s absence.  The Worker submitted inter alia that management failed to follow Code Chapter 11.37 and the legally binding decision in Gao v. The Commissioner of An Garda Síochána [2018] 244.  The Employer submitted inter alia that a decision on the classification was made by an appropriate person, and in any event, as the Divisional Officer had ‘no doubt’, referral to the Executive Director HRPD was not necessary.    As outlined at the hearing, the role of the WRC is to make a recommendation on the merits of the dispute, and it is not bound to follow legal authorities in doing so. 

At the hearing both parties sought to rely on Code Chapter 11.37 and extracts from Directive 139/10 in making their submissions.  Code Chapter 11.37 (1) opens with “If a member suffers personal injury . . . ” (my emphasis) 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 by Govern J. in Gao 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.    

Directive 139/10 begins with:

“Where there is any doubt that an injury on duty occurred, Divisional Officers should refer the matter to Assistant Commissioner, H.R.M [now the Executive Director HRPD], who will seek the advices of the C.M.O.  The C.M.O 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 C.M.O. . . ”

It appears from the above that if the Divisional Officer is satisfied 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 (in italics) 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).

On 24th January 2025 the Divisional Officer wrote to a named Assistant Principal.  The purpose of this communication was to say that he did not ‘recommend’ the Worker’s absence be classified as an injury on duty.  While there is no reference to the nature of his investigation into the matter, he proceeds to ask for the ‘advices’ of the Executive Director HRPD and the CMO per the procedure outlined in Directive 139/10.  (I note that as the Divisional Officer had ‘a doubt’ as to whether an injury on duty had actually occurred, Code Chapter 11.37 was not triggered i.e., it was not necessary for him to assess culpability).

It was the Assistant Principal who then forwarded this communication to the Head of Human Resources Directorate rather than the Executive Director HRPD.  The Head of Human Resources Directorate made a decision on the classification.  While it was accepted by the Employer that the matter was not referred to the correct person (i.e., the Executive Director HRPD), it is submitted by the Employer that the Head of Human Resource Directorate is a sufficiently senior post holder to make a decision on the classification of the absence as they are the deputy to the Executive Director HRPD.  Considering the foregoing, I have no difficulty accepting the Worker’s submission that the correct procedure was not followed.  However, I do not recommend reclassifying the absence as an ‘injury on duty’ or as leave other than sick leave due to the Employer’s procedural failings.

The Worker also seeks compensation for the failure to follow procedure and for loss and distress suffered.  I note a resolution was reached between the parties with respect to the Worker’s roster within a reasonable timeframe thereby curtailing the Worker’s period of absence.  However, I accept the Worker’s submission that the absence need not have occurred. The Worker’s medical situation had not changed, and the Employer had already accepted and implemented the existing medical advice while awaiting the CMO’s assessment.  It was unreasonable to ask the Worker for updated medical advice (which the Employer acknowledged was an optional requirement) and then to direct she work a different roster when she did not obtain same.  Had the Employer acceded to what was in my view a reasonable request to await the CMO’s review this whole scenario could have been avoided.  For the foregoing reasons, together with the failure of the Employer to follow the prescribed procedure for classification of absence, and due to the particular circumstances in which the Worker found herself, I recommend the payment of €2,000 in compensation to the Worker in full and final settlement of this dispute.

IR-SC-00004148 - Use of Dispute Resolution Procedure

The Worker submitted a grievance under the Dispute Resolution Procedure (DRP) challenging the decision not to classify her absence as an injury on duty and the process by which that decision had been arrived at, including a lack of transparency.  The Employer refused to entertain the grievance on the basis that the DRP could not be used in the absence of an agreed appeal mechanism. 

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.  Further, 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.  That is a collective matter for negotiation between the parties.

IR-SC-00004147

For the reasons set out above, and due to the particular circumstances in which the Worker found herself, I recommend the Employer pays the Worker compensation of €2,000 within 42 days of the issuing of this Recommendation in full and final settlement of this dispute.

IR-SC-00004148

For the reasons set out above, I do not recommend in favour of the Worker.

Code 11.37. Directive 139/10. Classification of absence. Injury on duty.