Labour Court Database __________________________________________________________________________________ File Number: CD91391 Case Number: AD91103 Section / Act: S13(9) Parties: IARNROD EIREANN - and - NATIONAL BUS AND RAIL UNION |
Appeal by the Company against Rights Commissioner's Recommendation BC 4/91 concerning a claim by the Union for the payment of 3 days sickness benefit to a locomotive driver in respect of his certified absence from work.
Recommendation:
5. Having considered the submissions from the parties the Court
is of the view that the Rights Commissioner's Recommendation is
reasonable in the circumstances.
The Court accordingly rejects the Company's appeal and upholds
the Rights Commissioner's Recommendation.
The Court so decides.
Division: Ms Owens Mr McHenry Mr Rorke
Text of Document__________________________________________________________________
CD91391 APPEAL DECISION NO. AD10391
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: IARNROD EIREANN
and
NATIONAL BUS AND RAIL UNION
SUBJECT:
Appeal by the Company against Rights Commissioner's
Recommendation BC 4/91 concerning a claim by the Union for the
payment of 3 days sickness benefit to a locomotive driver in
respect of his certified absence from work.
BACKGROUND:
The driver concerned is employed in Cork on the goods link
service. Drivers on the goods link service are rostered for
duty. On 23rd November, 1990 the driver concerned applied for 2
days annual leave in respect of 13th and 14th December, 1990.
He informed his supervisor that he required the annual leave to
attend a concert in Dublin on the 2 days in question. On 11th
December, 1990 the driver concerned was informed that his
request for 2 days annual leave had been refused due to the
business requirements of the Company. On 12th December, 1990
the driver was rostered to operate the goods link to Dublin,
stay overnight, and operate the goods link service back to Cork
on 13th December, 1990. The driver operated the goods link to
Dublin on 12th December, 1990, reported sick on arrival in
Dublin, and returned to Cork on the same day as a passenger on
the train. On arrival in Cork he attended a doctor who
certified him sick for 3 days from 13th to 15th December. After
the driver reported for duty on 17th December 1990, he was
informed that the Company had decided to pay him annual leave
for his absence rather than sickness benefit. The Union claims
that the driver should be paid sickness benefit in respect of
his 3 days certified absence. The dispute was referred to a
Rights Commissioner who investigated it on 21st May, 1991 and
issued the following recommendation on 20th June, 1991:-
In the light of the above I recommend that the
Company pay the driver sickness benefit for the
three days in question. I further recommend that
the driver understand that he has clear obligations
to the Company at all times to behave in a
circumspect and considerate fashion.
(The locomotive driver was named in the Rights
Commissioner's Recommendation.)
The Company appealed against the Recommendation under Section
13(9) of the Industrial Relations Act, 1969. The Labour Court
heard the appeal in Cork on 19th November, 1991.
UNION'S ARGUMENTS
3. 1.The driver concerned gave plenty of notice of his
requirement for annual leave on 13th and 14th December,
1990. When his request for annual leave was refused on
11th December, 1990 he reported for duty on the following
day and operated the goods link to Dublin. He became
unwell and on arrival in Dublin he reported sick. When he
returned to Cork he obtained proper medical certification
of illness in respect of the period 13th to 15th December,
1990. The Company should pay him sickness benefit for the
3 days in question.
2. When the driver reported for work on 17th December, 1990
he was informed that the Company had decided to pay him
annual leave for his absence instead of sickness benefit.
Not alone is the driver being denied sickness benefit but
is also being denied the benefits of his annual leave
entitlements. The Company has no right to approve annual
leave for the period the driver was certified unfit for
duty.
3. The driver was quite open in giving the reason why he
required annual leave. When he coincidentally became sick
the Company became suspicious that he may have attended the
concert in question. The driver did not attend the concert
and produced the evidence of the unused prepaid concert
tickets to the Rights Commissioner.
COMPANY'S ARGUMENTS
4. 1. The Company operates a gratuitous welfare scheme which
provides for the payment of sickness benefit. The
conditions of the scheme state that in the event of a
dispute arising regarding the payment of sickness benefit
the Company's decision in each case will be final.
2. In this particular case the Company considers that there
are adequate grounds to justify exercising its prerogative
not to pay sickness benefit. The Company decided to pay
annual leave for the days in question so that the driver
would not suffer any loss in pay.
3. The submission of a medical certificate by a worker is
not conclusive proof of incapacity. In circumstances which
justify suspicion of abuse of the welfare scheme the
Company must ensure that the integrity of the scheme is not
impugned. The driver concerned was dealt with fairly and
in accordance with the terms of the welfare scheme.
DECISION
5. Having considered the submissions from the parties the Court
is of the view that the Rights Commissioner's Recommendation is
reasonable in the circumstances.
The Court accordingly rejects the Company's appeal and upholds
the Rights Commissioner's Recommendation.
The Court so decides.
~
Signed on behalf of the Labour Court
Evelyn Owens
29th November, 1991
A.S./N.M. -------------------------
Deputy Chairman