Labour Court Database __________________________________________________________________________________ File Number: CD87971 Case Number: AD887 Section / Act: S13(9) Parties: BEECHAM OF IRELAND LIMITED - and - IRISH TRANSPORT AND GENERAL WORKERS' UNION;DUBLIN NO. 14 BRANCH |
Appeal by the Union against Rights Commissioner's Recommendation No. BC134/87 concerning holiday pay entitlement of a worker.
Recommendation:
1988
Division: Ms Owens Mr Shiel Mr Devine
Text of Document__________________________________________________________________
CD87971 APPEAL DECISION NO. AD788
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: BEECHAM OF IRELAND LIMITED
AND
IRISH TRANSPORT AND GENERAL WORKERS' UNION
DUBLIN NO. 14 BRANCH
SUBJECT:
1. Appeal by the Union against Rights Commissioner's
Recommendation No. BC134/87 concerning holiday pay entitlement of
a worker.
BACKGROUND:
2. The annual holiday entitlement in the Company is 22 days
(subject to the qualifying conditions of the Holidays (Employees)
Act, 1973) and the annual leave year runs from 1st April to 31st
March. The worker concerned is a chargehand fitter and on 18th
September, 1986 had an accident outside work at which time he had
taken 16 days annual leave. Following this accident the worker
was absent from work until 27th March, 1987. The Company
maintained that due to his absence on sick leave the worker had
overtaken his annual leave entitlement by 7 days as at 31st March,
1987. The worker claimed that he was fit to return to work on
19th March, 1987 and would then have qualified for the maximum
holiday entitlement, but was delayed from doing so as the Company
then made it a requirement for his return to work that he attend
the Company doctor with whom he did not get an appointment until
25th March, 1987. The matter was subsequently referred by the
Union to a Rights Commissioner for investigation and
recommendation. A Rights Commissioner investigated the dispute on
13th October, 1987 and 9th November, 1987 and issued the following
recommendation:
" In the light of the above, I recommend as follows:-
1. That the claim by the worker for 22 days holidays in relation
to the year in question must fail;
2. The Company should not insist upon the worker refunding it to
the value of the 7 days taken in excess of his actual
entitlement.
As a gesture of good will, the Company should allow the worker to
retain these 7 additional days."
(The worker was named in the Rights Commissioner's
Recommendation).
3. On 16th December, 1987 the Union appealed the recommendation
to the Labour Court under section 13(9) of the Industrial
Relations Act, 1969. The Court heard the appeal on 26th January,
1988.
UNION'S ARGUMENTS:
4. 1. The worker made every effort to return to work on 19th
March, 1987 and advised the Company of his situation on 19th
February, 1987, and 4th March, 1987 (details supplied to the
Court). On 18th March, 1987 the worker met with a member of
management and was only then advised that he would have to see
the Company doctor for final clearance. The worker did not
refuse to see the doctor but had been unaware until then that
it was required as clearance from the Company doctor is not a
normal requirement.
2. Both parties disagree as to when this requirement was made
known to the worker. However, the fact remains that although
the worker was told on 18th March, 1987 that he could not
resume work before being cleared by the doctor, the
arrangements for this were not made until 25th March, 1987.
These arrangements were up to the Company and outside of the
worker's control and the Company's delay in making an
appointment with the doctor until 25th March, 1987 prevented
the worker from resuming employment earlier and being entitled
to his full annual holiday entitlement. The worker's claim
should therefore be conceded.
COMPANY'S ARGUMENTS:
5. 1. The worker was informed by management on both 19th
February, 1987 and 4th March, 1987 (details supplied to the
Court) that he would have to be cleared for work by the
Company doctor. The reason for this was that he is a working
chargehand. The worker did not make any reference on 4th
March, 1987 to having been cleared by the Hospital doctor. On
18th March, 1987 the worker informed the Company that he would
resume work on 19th March, 1987 and he was again told that he
could not do so until cleared by the Company doctor. This was
done on 25th March, 1987 following which the worker resumed
work.
2. The Rights Commissioner's recommendation was in favour of
the Company. His suggestion that the Company should allow the
worker to retain the seven days annual leave as a gesture of
goodwill was rejected as the Company had already offered to do
so in July, 1987 and this had been rejected by the worker,
resulting in a great deal of extra cost and inconvenience to
management. In spite of this however, the Company has offered
to reduce the number of days owed by the worker from 7 to 3.
The Company has treated the worker favourably in this
situation and the Court should find in favour of the Company
in the circumstances.
DECISION:
6. The Court having considered the submissions from the parties
does not find grounds for altering the Rights Commissioner's
findings. The Court accordingly rejects the appeal and upholds
the findings which state that the Union's claim for 22
days holidays fails and that management agree that the appellant
retains the 7 days leave which he had overtaken in year 1986/87.
The Court so decides.
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Signed on behalf of the Labour Court.
Evelyn Owens
__9th___February,___1988. ___________________
U. M. / M. F. Deputy Chairman