Labour Court Database __________________________________________________________________________________ File Number: CD90654 Case Number: AD913 Section / Act: S13(9) Parties: IRISH STEEL LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Company against Rights Commissioner's Recommendation No. S.T.317/90 concerning the level of sick pay payable to a worker.
Recommendation:
"This is a relatively unique case and it should not arise
again too frequently. I must uphold the principle that
supplementary payments do not form part of sick pay
entitlements. However, that interpretation does not exclude
another view on the merits of this case. It seems to me
that in natural justice the claimant is entitled to that
rate of pay which he enjoyed immediately prior to his
sickness (i.e. 4 shift pay). The fact that it was his de
facto rate during his period of sickness also cannot be
ignored in the interests of natural justice.
Accordingly I recommend that he receives the rate of shift
pay which he enjoyed immediately prior to his illness
provided that the Union unreservedly accepts that
supplementary and bonus payments do not form part of sick
pay entitlement".
4. The Company appealed the recommendation under Section 13(9)
of the Industrial Relations Act, 1969. The Court heard the appeal
in Cork on 5 December, 1990.
COMPANY'S ARGUMENTS:
5. 1. The agreement covering sick pay provides for entitlement
to normal basic pay only whilst absent on sick leave .
(Details supplied to the Court). The Company's view is that
normal basic pay for 3 shift working is 3 shift pay.
Compensatory payments, bonus, overtime, etc., have never been
included in sick pay calculations nor can be. To do so would
greatly increase the cost of what is already an expensive
scheme and also create a dangerous precedent.
2. The recommendation states that this case is "relatively
unique and it should not arise again too frequently".
This is not so. The reality is that market forces or
operational matters could result in a transfer from one shift
pattern to another at any time. Therefore, to tie the
Company into an arrangement whereby it must concede payment
of the shift rate applicable prior to sickness irrespective
of the shift pattern being worked during a sickness is adding
an unknown cost factor to the sick pay scheme for the future.
UNION'S ARGUMENTS:
6. 1. The sick pay scheme provides that the normal basic pay
less Social Welfare payments, which would be deducted on the
4th week of absence be paid from the first day. Since the
agreement reached in July provided that there would be no
loss of earnings involved for the workers who reverted to the
3 shift operation and as the worker her concerned last worked
on a 4 shift rota it follows that his sick pay should be paid
on the 4 shift rate.
2. The Union finds the Company's contention that the
payment would create a dangerous precedent unacceptable and
unsustainable. The Union was informed that this was a once
off lay-off and was unlikely to happen again in the
foreseeable future.
DECISION:
7. The Court notes that both parties are in agreement as to the
operation of the sick pay scheme and that the Union do not seek to
have any of its terms amended, nor are they claiming that its
terms are what should be applied in this case. The Court
considers that in the particular circumstances of this case the
Rights Commissioner's Recommendation should be upheld and
accordingly the Court rejects the appeal.
To avoid a similar dispute arising in the future the Court further
considers that both parties should enter into a written agreement
as to the exact terms that would apply to such a situation in the
future.
Division: Ms Owens Mr McHenry Mr Devine
Text of Document__________________________________________________________________
CD90654 APPEAL DECISION NO. AD391
THE LABOUR COURT
INDUSTRIAL RELATIONS ACT 1969
SECTION 13(9)
PARTIES: IRISH STEEL LIMITED
AND
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Company against Rights Commissioner's
Recommendation No. S.T.317/90 concerning the level of sick pay
payable to a worker.
BACKGROUND:
2. In August 1990 the Company reverted from a 4 shift to a 3
shift pattern of operations in its rolling mill and associated
areas. In July the Company and the Union had agreed that 38
temporary workers would be laid-off for a six week period with no
break in service. It was also agreed which departments would
revert to 3 shift working for that period and the workers
concerned would retain payment at 4 shift rate as per existing
agreement which provides for such payments to a maximum of 10
weeks.
3. Prior to the commencement of the 3 shift working the worker
here concerned was on sick leave for a week. On resumption he was
paid sick pay on the basis of 3 shift working. The Union claimed
payment on the basis of 4 shift working. The Company rejected the
claim stating that the worker had been paid in accordance with the
agreed sick pay scheme in operation. The matter was referred to a
Rights Commissioner for investigation and recommendation. The
Rights Commissioner, investigated the claim on the 5 September,
1990 and on the 30 September, 1990 he issued the following
recommendation:
"This is a relatively unique case and it should not arise
again too frequently. I must uphold the principle that
supplementary payments do not form part of sick pay
entitlements. However, that interpretation does not exclude
another view on the merits of this case. It seems to me
that in natural justice the claimant is entitled to that
rate of pay which he enjoyed immediately prior to his
sickness (i.e. 4 shift pay). The fact that it was his de
facto rate during his period of sickness also cannot be
ignored in the interests of natural justice.
Accordingly I recommend that he receives the rate of shift
pay which he enjoyed immediately prior to his illness
provided that the Union unreservedly accepts that
supplementary and bonus payments do not form part of sick
pay entitlement".
4. The Company appealed the recommendation under Section 13(9)
of the Industrial Relations Act, 1969. The Court heard the appeal
in Cork on 5 December, 1990.
COMPANY'S ARGUMENTS:
5. 1. The agreement covering sick pay provides for entitlement
to normal basic pay only whilst absent on sick leave .
(Details supplied to the Court). The Company's view is that
normal basic pay for 3 shift working is 3 shift pay.
Compensatory payments, bonus, overtime, etc., have never been
included in sick pay calculations nor can be. To do so would
greatly increase the cost of what is already an expensive
scheme and also create a dangerous precedent.
2. The recommendation states that this case is "relatively
unique and it should not arise again too frequently".
This is not so. The reality is that market forces or
operational matters could result in a transfer from one shift
pattern to another at any time. Therefore, to tie the
Company into an arrangement whereby it must concede payment
of the shift rate applicable prior to sickness irrespective
of the shift pattern being worked during a sickness is adding
an unknown cost factor to the sick pay scheme for the future.
UNION'S ARGUMENTS:
6. 1. The sick pay scheme provides that the normal basic pay
less Social Welfare payments, which would be deducted on the
4th week of absence be paid from the first day. Since the
agreement reached in July provided that there would be no
loss of earnings involved for the workers who reverted to the
3 shift operation and as the worker her concerned last worked
on a 4 shift rota it follows that his sick pay should be paid
on the 4 shift rate.
2. The Union finds the Company's contention that the
payment would create a dangerous precedent unacceptable and
unsustainable. The Union was informed that this was a once
off lay-off and was unlikely to happen again in the
foreseeable future.
DECISION:
7. The Court notes that both parties are in agreement as to the
operation of the sick pay scheme and that the Union do not seek to
have any of its terms amended, nor are they claiming that its
terms are what should be applied in this case. The Court
considers that in the particular circumstances of this case the
Rights Commissioner's Recommendation should be upheld and
accordingly the Court rejects the appeal.
To avoid a similar dispute arising in the future the Court further
considers that both parties should enter into a written agreement
as to the exact terms that would apply to such a situation in the
future.
~
Signed on behalf of the Labour Court
15 January, 1991 Evelyn Owens
M.D. / M.O'C. _______________
Deputy Chairman