Labour Court Database __________________________________________________________________________________ File Number: CD92116 Case Number: LCR13653 Section / Act: S26(1) Parties: GREENCORE PLC - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
A dispute concerning the interpretation of the Sickness Benefit Scheme.
Recommendation:
5. The issue before the Court is the interpretation of certain
terms of the sick pay scheme - in particular the standing and
authority of the Company doctor vis a vis the employees own
medical advisor. In this respect the Court has had particular
regard to Paragraph 9 (d)(e) and (f) of the sick pay scheme.
The clear implications of these terms is that the function of the
Company doctor is different to the function of the employees own
medical advisor. The purpose of the Company doctor's examination
is to offer professional opinion as to whether the employee is so
ill as to qualify for payments from the scheme. It is of course
to be expected that on occasions the views of the doctors as to a
patients condition will differ but the Court is satisfied that in
the context of the agreement the Company doctors opinion as to
qualification for payment is decisive.
Nor does paragraph 9(b) involve any contradiction insofar as it
purports to impose an obligation on the individual to refrain from
activities which would hamper his return to work.
The Court in light of the foregoing supports the Company's
interpretation of the terms of the scheme and therefore does not
recommend any payment to the individual in whose case the matter
originally arose.
Division: Mr O'Connell Mr Collins Mr Walsh
Text of Document__________________________________________________________________
CD92116 RECOMMENDATION NO. LCR13653
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 26(1), INDUSTRIAL RELATIONS ACTS, 1990
PARTIES: GREENCORE PLC
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. A dispute concerning the interpretation of the Sickness
Benefit Scheme.
BACKGROUND:
2. A Sickness Benefit Scheme for normal workers has been in
operation within the Company since 1968. It is exclusively funded
by the Company. (A copy of the scheme is attached as Appendix 1).
The question of interpretation of the Scheme arises following a
particular individual case where a worker, while out sick, was
requested to attend the Company doctor. The Company doctor
pronounced the worker fit for work while his own G.P. advised him
that he was still unfit and not to resume work until his course of
prescribed medication was completed. As the worker did not resume
work the Company discontinued payment under the Sickness Benefit
Scheme.
The Union contends that nowhere in the Scheme is it stated that
the Company doctor has the right to overrule another doctor and
that the Company was, therefore, wrong in discontinuing payment to
the worker under the Scheme. The Company rejects the Union's
claim and contends that, within the Scheme, the Company doctor as
adviser to the Company, has a special role.
The dispute was referred to the conciliation service of the Labour
Relations Commission on 27th November, 1990. Conciliation
conferences were held on 15th March and 19th September, 1991 at
which agreement was not reached. The issue was referred to the
Labour Court on 18th February, 1992, under Section 26(1) of the
Industrial Relations Act, 1990. The Court investigated the
dispute on 10th April, 1992.
UNION'S ARGUMENTS:
3. 1. The Union is satisfied that the conditions set out in the
Sickness Benefit Scheme are specific. Nowhere in the
agreement does it state that the decision of another doctor
can be overruled by that of the Company doctor. In fact in
clause 9(d) and 9(e) the phrase "may be required" is used in
relation to the Company doctor.
2. The Company cannot withdraw payment under the Sickness
Benefit Scheme if a worker has complied with the conditions of
the Agreement in particular clauses 9(e) and 9(f). In the
case of the worker who was affected by the Company's decision
the Union is seeking payment of two weeks.
3. The Union has proposed that in the event of a dispute it
would abide with the decision of a mutually agreed third
doctor.
COMPANY'S ARGUMENTS:
4. 1. The Sick Pay Scheme is a very fair scheme. The workers do
not contribute to it and it is solely funded by the Company.
Within the Scheme the Company doctor is clearly given a
special role. It is the Company doctor who is the decision
maker and on whose advice payment is made or withheld under
the Scheme.
2. Any attempt by the Union to weaken the role of the Company
doctor or to alter the Sick Pay Scheme would seriously
undermine the Scheme and damage the operation of same.
RECOMMENDATION:
5. The issue before the Court is the interpretation of certain
terms of the sick pay scheme - in particular the standing and
authority of the Company doctor vis a vis the employees own
medical advisor. In this respect the Court has had particular
regard to Paragraph 9 (d)(e) and (f) of the sick pay scheme.
The clear implications of these terms is that the function of the
Company doctor is different to the function of the employees own
medical advisor. The purpose of the Company doctor's examination
is to offer professional opinion as to whether the employee is so
ill as to qualify for payments from the scheme. It is of course
to be expected that on occasions the views of the doctors as to a
patients condition will differ but the Court is satisfied that in
the context of the agreement the Company doctors opinion as to
qualification for payment is decisive.
Nor does paragraph 9(b) involve any contradiction insofar as it
purports to impose an obligation on the individual to refrain from
activities which would hamper his return to work.
The Court in light of the foregoing supports the Company's
interpretation of the terms of the scheme and therefore does not
recommend any payment to the individual in whose case the matter
originally arose.
~
Signed on behalf of the Labour Court
John O'Connell
______________________
13th May, 1992. Deputy Chairman
A.NiS/J.C.
APPENDIX I
4.5 SICK PAY
Employees absent from work through illness will be paid in
accordance with the provisions of the Sick Pay Scheme. The
following are the provisions of the scheme:
1. To qualify for sick pay, a person will have to have two
(2) continuous years service with the Company
immediately preceding a sick pay claim. Continuous
services is as defined for service pay. (See 4.6 [2])
except in the case of apprentices who are covered in
Clause 4.5 [10] [a]).
2. Subject to the receipt of a medical certificate, sick
pay will be paid for a maximum of six (6) months in
steps of four years, commencing 1st August, 1968,
(March, 1970 in East Cork Foods).
3. The rate of sick pay will be such that when combined
with Social Welfare and/or other State benefits, it will
equal an employee's basic weekly wage, including service
and efficiency pay were applicable, calculated on normal
hours which at the present time are forty (40) hours per
week. In practice, the Company guarantees (having
satisfied other conditions of the scheme) a normal take
home pay of the equivalent of a normal forty (40) hours
weekly wage. Since this equivalent figure is inclusive
of Social Welfare payments, these must be refunded to
the Company.
4. If a person is absent from work for one (1) or two (2)
days, he or she will not be entitled to sick pay. But
for one occasion in any calendar year, if the sickness
extends to three (3) days or more and a doctor's
certificate covering the first two (2) days is
submitted, payment will be made for the period covered
by the certificate inclusive of the first two (2) days.
5. Where absence is due to an accident giving rise to a
claim against the Company under common law or a claim
against a third party, an employee will not be entitled
to sick pay. The Company may, however, having regard to
the circumstances and at its own discretion, grant sick
pay to the person concerned. Any payments made under
such conditions will be refunded to the Company by way
of deduction from any compensation to be paid by the
Company or by direct refund in the case of a successful
claim against a third party.
6. Periods of paid absence through illness will not be
deducted in calculating annual holiday entitlements.
7. Any provisions in this scheme will not e taken as
amending or altering, in any way, the conditions under
which service pay is paid, nor shall they be taken as
having any effect on the operation of Redundancy
Payments Act, 1967 and 1971.
8. In the event of redundancy or temporary lay-off, the
operation of the Sick Pay Scheme will not in any way
interfere with the order of lay-off. If, however, a
person is in receipt of sick pay at the time he or she
would normally be laid off, payment will be continued
until the person is certified fit, or the full six
months sick pay has been availed of (as in 4.5 [2])
whichever occurs first.
9. Conditions under which sick pay will be granted:
(a) The Company must be notified of illness as soon as
possible and not later than the third day of
absence.
(b) A medical certificate must be submitted covering
the period of absence before payment is made.
(c) Normally medical certificates must be submitted
weekly.
(d) A certificate of fitness from the Company Doctor
may be required before a person, absent through
illness, is allowed to return to work.
(e) In the case of a prolonged absence through illness,
an examination by the Company Doctor may be
required and if not agreed to by the worker,
payment of sick pay may be stopped.
(f) The employee shall obey the instructions of his or
her doctor and shall not engage in any activity or
be guilty of any conduct likely to retard recovery.
(g) The employee shall not engage in any remunerative
employment while in receipt of sick pay.
(h) Abuse of the scheme by an employee may lead to
suspension or dismissal of the employee in
accordance with existing agreements or cancellation
of entitlement under the Sick Pay Scheme.
(i) Where sick pay is given to people eligible for
Social Welfare benefits, the people concerned must
claim sickness benefit from the Department of
Social Welfare and refund it to the Company.
10. GENERAL
(a) Apprentices who, on the completion of their
apprenticeship are retained in the Company, will be
eligible for sick pay from the first day after the
completion of their apprenticeship
(b) The wages of drivers on commission and any people
working on piece rate will be calculated for the purpose
of sick pay, in the same manner as they would be for
holidays.
(c) Employees quarantined because of infections diseases
will be eligible for sick pay on the production of a
medical certificate and under the same conditions as
apply for sickness.
(d) Illness, which in the opinion of the Company Doctor,
arises out of a maternity is not covered under this
scheme.
4.6 SERVICE PAY AND RETIREMENT GRATUITY
1. Service pay, where applicable shall be paid to those
personnel in continuous employment of the Company as
follows:
_______________________________________________________
|Continuous | 3 | 5 | 10 | 15 | 20 | 25 | 30 | 35|
|______________|_____|___|____|____|____|____|____|___|
|Rate Per Hour | 0.5p| 1p| 2p | 3p | 4p | 5p | 6p | 7p|
|______________|_____|___|____|____|____|____|____|___|
2. Continuous services is defined as unbroken service
subject to the following conditions:-
(a) In the case of employees who have completed twelve
(12) months continuous services (i.e. without
lay-off) a temporary lay-off of up to three months
will not constitute a break in service.
(b) Absence through certified illness of up to six (6)
months will not constitute a break in service in
reckoning service for service pay. Absence through
certified illness extending beyond six (6) months
will be dealt with on the merits of the individual
case, prior reckonable service being taken into
account. The local manager may withhold service
pay but if he/she does so, he/she will advise the
Union and refer the matter to Head Office, C.S.E.T.
(c) Absence through accident arising out of employment
with the Company will not constitute a break in
service, subject to verification by Company Doctor.