Labour Court Database __________________________________________________________________________________ File Number: CD93377 Case Number: AD9382 Section / Act: S13(9) Parties: BUS EIREANN - and - NATIONAL BUS AND RAIL UNION (N.B.R.U. |
Appeal by the Union against Rights Commissioner's Recommendation No. B.C. 103/93 concerning non-payment of sickness benefit.
Recommendation:
5. The Court having considered the submissions of the parties
finds that it is clear that the decision whether to pay benefit or
not is a management decision and therefore agrees with the
findings of the Rights Commissioner. However, having regard to
the special circumstances surrounding this particular case, the
Court is of the opinion that an ex gratia payment of #300 should
be paid by the Company to the claimant and amends the Rights
Commissioner's Recommendation accordingly.
The Court so decides.
Division: Ms Owens Mr Keogh Mr Rorke
Text of Document__________________________________________________________________
CD93377 APPEAL DECISION NO. AD8293
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: BUS EIREANN
and
NATIONAL BUS AND RAIL UNION (N.B.R.U.)
SUBJECT:
1. Appeal by the Union against Rights Commissioner's
Recommendation No. B.C. 103/93 concerning non-payment of sickness
benefit.
BACKGROUND:
2. The worker concerned is employed by the Company as a driver in
Sligo. On 4th January, 1993, the Services Industrial Professional
Technical Union commenced strike action at the depot in Sligo.
The strike action was supported by some members of the N.B.R.U.
On 4th January, 1993, the worker concerned was absent from work on
sick leave. A Company panel doctor examined the worker and
certified him unfit for work. The worker resumed duty on 19th
April, 1993. During the worker's absence the Company refused him
payment in accordance with the Company's welfare scheme.
The matter was referred to a Rights Commissioner for investigation
and recommendation. On 8th June, 1993 the Rights Commissioner
recommended as follows:
"While upholding the prerogative of Bus Eireann to pay or not
to pay sickness benefit I would recommend that the Company
would consider again the question concerning the worker
taking into account all aspects raised during my
investigation. Whatever decision the Board should come to I
would recommend that the Trade Union accept this decision".
The worker was named in the recommendation.
The Rights Commissioner's recommendation was appealed by the Union
to the Labour Court on 17th June, 1993 under Section 13(9) of the
Industrial Relations Act, 1969. The Court heard the appeal on
14th September, 1993.
UNION'S ARGUMENTS:
3. 1. The worker sustained a back injury while engaged on
Company business in October, 1992, in Tubbercurry. He
attended a specialist and a physiotherapist in relation to his
injury and was absent from work for three and a half months.
2. On Saturday 2nd January, 1993, the worker while returning
home from a trip to Belfast developed severe pain in his back
and neck. He spent Sunday in bed.
3. On Monday 4th January, 1993 the worker was examined at his
home by a Company panel doctor who confined him to bed for a
period of seven to ten days. Following an X-Ray a spinal
problem was diagnosed.
4. The worker is aware of the Company's regulations and could
have reported sick on Sunday. The easiest and most convenient
way of going sick was not chosen. The worker rested on Sunday
in an attempt to recover in time to report for work on Monday.
5. At a general meeting of workers held on 30th December,
1992, the worker concerned openly favoured attendance at work.
If fit he would have attended for work and management were
aware of this.
6. The Rights Commissioner's recommendation in asking the
Company to consider again the circumstances of the case was a
recognition that the worker did suffer an injustice.
7. The worker has suffered an injustice and has been treated
unfairly by the Company.
COMPANY'S ARGUMENTS:
4. 1. The Company's welfare scheme is a non-contributory scheme
and one of the conditions governing its application is that:
"In the event of any dispute arising regarding the
benefit payable the Board's decision in each case shall
be final".
2. It is Company policy that medical certificates issued on
the date a strike commences are not honoured and sickness
benefit in accordance with the Company's welfare scheme is not
afforded. This policy has existed for a long number of years.
3. Similar claims have been dealt with internally and the
Company has consistently refused to pay sickness benefit in
the circumstances.
4. All trade unions are aware of the Company policy in this
regard and any concession in relation to this claim would
seriously undermine continuance of this policy in the future.
DECISION:
5. The Court having considered the submissions of the parties
finds that it is clear that the decision whether to pay benefit or
not is a management decision and therefore agrees with the
findings of the Rights Commissioner. However, having regard to
the special circumstances surrounding this particular case, the
Court is of the opinion that an ex gratia payment of #300 should
be paid by the Company to the claimant and amends the Rights
Commissioner's Recommendation accordingly.
The Court so decides.
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Signed on behalf of the Labour Court
Evelyn Owens
_____________________
4th October, 1993. Deputy Chairman
F.B./J.C.