Case Number: ADJ 35723. Workplace Relations Commission

• Judgment Date: 24 October 2022
• Docket Number: ADJ 35723
• Date: 24 October 2022
• Year: 2022
• Court: Workplace Relations Commission

Procedure:

In accordance with Section 13 of the Industrial Relations Act 1969 (as amended) following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute.

Background:

On 29 October 2021, the Worker, a Social Care Worker in a Residential setting, claimed that he had been denied continuance of the serious Physical Assault at Work Scheme, which had been replaced by the normal sick pay scheme. The Employer is a Public Body and recorded a rejection of the claim. Both parties came to hearing represented. The Worker was represented by his Trade Union, Forsa and the Public Body was represented by their Solicitors, Comyn, Kelleher, Tobin. Both Parties approached the hearing prepared and both parties furnished helpful written submissions. I did encourage the parties to explore an option for individualised resolution. I am grateful to the parties for attempting this, albeit unsuccessful option. At the conclusion of the hearing, I sought a foundation document in the claim referred to as an application form for access to the Serious Physical Assault at Work Scheme, namely, HR 108. Some weeks has passed now since this request was issued. I have not received a copy of this requested form to assist me in my investigation. I have decided to move to completing my Recommendation in the case.

Summary of Workers Case:

The Union outlined that on 15 November 2020, the Worker, based in a Residential setting, since 2000 was the recipient of 3 occurrences of a serious physical assault in the workplace. The Union contended that the Employer was initially supportive by applying the terms of the Serious Physical Assault at Work Scheme (SPAW) to the Complainant until altering this to application of the terms of normal sick leave halfway through a 7-month period of absence. The Union argued that this was an incorrect interpretation of the scheme and initiated a grievance to align the provisions of SPAW to his period of absence. The Union accepted that the Worker delayed in making formal application for access to SPAW consistent with the timing of the assault. He sought application of the scheme in February 2021, and this was applied retrospectively for a period of one month but not augmented to reflect the entire period of absence. The Union outlined the circumstances surrounding the staffing complement on duty prior to the assault. The Worker recorded the incidents of assault. There was no immediate intervention by the Respondent towards the Worker in the aftermath of the assaults. The Worker consulted his own GP and was placed off work. He requested an Occupational Health review, which was delayed until 22 December that year. A subsequent recommended referral to a further support service did not materialise. On February 10, 2021, the Worker requested access to SPAW scheme. On 4 March 2021, the Employer denied SPAW for the duration of the full absence as Occupational Health had determined that “there were no lasting physical injuries “The Complainant was permitted a retrospective application of SPAW which spanned the period 23 November – 21 December 2020. On March 30, 2021, The Union claimed access to SPAW scheme to cover the total period of absence. On 31 March 2021, The Employer responded that a retrospective SPAW has been granted in the Workers case. They stated that as physical symptoms had abated the scheme was no longer applicable to the Worker. The Worker was invited to detail medical expenses incurred for recoupment. Further debriefing was offered to facilitate a return to work. The next day, the Union sought a further consideration of the claim, when they stated “The worker is currently out of the workplace on the basis of the serious physical assault he sustained, and his injuries directly result and stem from the assault that occurred in the workplace. “ The Union disputed the curtailment of the scheme and sought application of SPAW. once more. On 12 April 2021 the Employer re -iterated that once physical injuries ceased, access to SPAW ceases also. The Union sought to persuade the Employer to apply the scheme reliant on a previous WRC case of ADJ 17494 dated January 2019. The Worker invoked the grievance procedure on 15 April 2021 and findings issued on 25 October 2021 The findings confirmed that application of SPAW scheme was subject to management approval. The Workers physical injuries had abated, and he was no longer entitled to access the scheme when the effect of the assault was psychological “ He was denied an augmentation to the SPAW scheme. The case proceeded to adjudication. The Union submitted the following arguments: 1. The occurrence of the assault of 15 November 2020 was set against a 5-month period of violent behaviour at the Unit. The Worker was assaulted in the course of his work, resulting in a seven-month absence from work. He was wrongly categorised for the sick leave scheme and the application of SPAW was too brief. 2. The Worker met the terms of the serious Physical Assault at Work Scheme 3. The Employer acted arbitrarily in limiting the scope of the SPAW based on their interpretation of an OHD Report. There is no provision for this in the SPAW scheme. 4. The SAPW is a Collective Agreement between Unions and Employers at National Joint Council. The matter was not raised at that appropriate forum. 5. The Worker in this case has been a previous recipient of assault at work. 6. The Employer did not engage with the worker after the assault and supportive measures were actioned by the Worker himself. In a bid to resolve the dispute, the Worker sought applications of the Serious Physical Assault at Work Scheme in line with the Circular. They contended that Sick leave should be recalibrated for the record. Re-imbursement of pay on transition from full pay to half pay at the lower end of sick leave.

Summary of Employer’s Case:

The Employer is a Statutory Body within a Public Body. It employs c. 5,000 people in 350 locations across Ireland. The Employer has rejected the claim. The Employer Representative outlined the terms of the Serious Physical Assault at Work scheme, (SPAWS) which is applicable to employees “who are seriously assaulted in the course of their duties “ On successful qualification, the scheme delivers a refund of medical expenses and payment of full pay, allowances and premia for up to 6 months for Officer grades. The Employer submitted that the scheme was correctly applied in this case and the Employer was entitled to cease payment once the Occupational Health Department confirmed that the physical injuries which the complainant had received had subsided. The Employer outlined a chronology surrounding the circumstances of the assault on 15 November 2020. The Worker resumed work in the aftermath of the assault and on 23 November, submitted a sick certificate for “work related stress “He was absent from work 23 November 2020 to 28 July 2021. As sick notes continued, the Worker was paid in accordance with the Organisations sick leave policy. On February 10, 2021, the Worker sent a letter requesting access to the SPAWS scheme. “ ….. therefore, I am now requesting support from my employer in the form of access to the assault at work scheme …. “ On March 4, 2021, the Residential Unit Manager responded “ …. I have consulted HR and reviewed your occupational health report. I note that the occupational health review dated 22 December 2020 concluded that “no lasting physical injury has occurred on this occasion “ The worker was approved for the scheme retrospectively from November 23, 2020, to December 21, 2020, but was deemed not to have met the criteria for any absence related to this incident following the OHD review. This was subsequently extended to 10 February 2021 to reflect the outer time limit where “physical injuries were present “ The Employer contended that no physical injury or serious physical injury was recorded on the certificates produced by the Workers Medical Doctor

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