Labour Court Database __________________________________________________________________________________ File Number: CD93207 Case Number: AD9334 Section / Act: S13(9) Parties: BUS EIREANN - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Union against Rights Commissioners's Recommendation No. DC1/93.
Recommendation:
Having regard to the submissions made by the parties and the terms
of the Welfare Scheme, the Court does not consider that grounds
have been established to justify alteration of the Rights
Commissioner's Recommendation. Therefore the Rights
Commissioner's Recommendation stands.
The Court so decides.
Division: Mr Heffernan Mr Keogh Mr O'Murchu
Text of Document__________________________________________________________________
CD93207 DECISION NO. AD3493
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
INDUSTRIAL RELATIONS 1969 SECTION 13(9)
PARTIES: BUS EIREANN
AND
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
Appeal by the Union against Rights Commissioners's Recommendation
No. DC1/93.
BACKGROUND:
On the 22nd September, 1992 the worker concerned, who is a driver
at the Broadstone Depot, requested the schedules inspector to book
him on duty for a late start on the 24th September, 1992. The
inspector refused the request on the grounds that there was a
shortage of drivers. The worker reported sick on the 24th
September and submitted a medical certificate for three days,
24th, 25th and 26th September. Management decided not to pay the
worker sickness benefit for the days in question on the grounds
that the worker abused the sick leave system. The Union rejected
the claim. The issue was referred to a Rights Commissioner for
investigation. On the 12th March, 1993 the Rights Commissioner
issued the following recommendation:
"There is more than ample precedence within Bus Eireann and
its sister Companies where sickness benefit has been
declined, notwithstanding the production of a medical
certificate, and this case falls into that category.
Therefore, in that I am satisfied that the coincidence of the
claimant requests for a change of duties and a day's annual
leave with his three day's absenteeism represented reasonable
and circumstantial grounds for management to withhold payment
of sickness benefit, I recommend that the worker's claim
fails". (The worker was named in the Right's Commissioner's
Recommendation.
On the 24th March, 1993 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 the 15th April, 1993.
UNION'S ARGUMENTS:
The worker supplied a doctor's certificate covering the three
days. The certificate specified the illness. The Company should
not question the validity of a medical certificate. When the
worker resumed duty on the 28th September he was still suffering
the effects of the illness and went to see the Chief Medical
Officer as he was feeling unwell. He was unable to get an
appointment but spoke to a receptionist and nurse in the office.
At this time the worker was unaware that the Company were refusing
to pay his sickness benefit. At a subsequent meeting Management
agreed to make an appointment for the worker to attend the Chief
Medical Officer but later refused to make the appointment. The
worker has been treated in an unfair and unjust manner by the
Company. He should be paid the three days sickness pay in respect
of his absence.
COMPANY'S ARGUMENTS:
1. On the 22nd September, 1992 the worker requested a change in
his annual leave so that he could take a day's leave on the
25th September, 1992 and a deferral of his pre-arranged
annual leave. Management advised the worker that the
agreement with the unions did not allow for the splitting up
of holidays and suggested that he take a single day's unpaid
leave on the 25th September. The worker agreed to proceed on
this course. Having considered the worker's failure to
obtain a late start for the 24th September and his arranged
day's leave without pay on the 25th September, Management
concluded that the worker was abusing the sick leave system.
2. The mere production of a medical certificate is not in itself
a guarantee that sick benefit must be paid. Where a doubt
exists Management has a duty to investigate and determine if
an illness is genuine. There have been previous instances
in the Company where, in circumstances which gave rise to
doubts as to genuine illness, sickness benefit was not paid.
The Board's Welfare Scheme is non-contributory and one of its
conditions stipulates "in the event of any dispute arising
regarding the benefit payable the Board's decision in each
case shall be final". In this case there were grounds to
justify the Company exercising its prerogative.
DECISION:
Having regard to the submissions made by the parties and the terms
of the Welfare Scheme, the Court does not consider that grounds
have been established to justify alteration of the Rights
Commissioner's Recommendation. Therefore the Rights
Commissioner's Recommendation stands.
The Court so decides.
~
Signed on behalf of the Labour Court
4th May, 1993 Kevin Heffernan
T.O.D./M.H. -----------------------------------
Chairman
Note
Enquiries concerning this Recommendation should be addressed to
Mr. Tom O'Dea, Court Secretary.