Labour Court Database __________________________________________________________________________________ File Number: CD95184 Case Number: AD9546 Section / Act: S13(9) Parties: ALLIED FOODS LIMITED (THE IRISH BUSINESS AND EMPLOYERS CONFEDERATION) - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Company against Rights Commissioner's Recommendation No. CW334/94 concerning the non-payment of sick-pay to a worker.
Recommendation:
The Court, having considered the written and oral submissions
upholds the Company's appeal but recommends that the Rights
Commissioner's Recommendation be amended as follows.
The fine of 2 days' pay to be implemented but the recommendation
in relation to the claimant's next 4 absences will not apply.
The Court so decides.
Division: Mr Flood Mr Keogh Mr Walsh
Text of Document__________________________________________________________________
CD95184 APPEAL DECISION NO. AD4695
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES:
ALLIED FOODS LIMITED
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS CONFEDERATION)
AND
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Company against Rights Commissioner's
Recommendation No. CW334/94 concerning the non-payment of
sick-pay to a worker.
BACKGROUND:
2. 1. The Company specialises in the distribution of fresh
foods, with its head office in Cork and a depot in
Dublin. The worker has been employed in the Dublin
depot as an order picker for approximately 8 years.
2. The Company has no formal sick-pay scheme in operation
but workers are normally paid from the first day of
absence. On 12th January, 1994, the worker went out on
sick-leave and submitted a doctor's certificate which
stated that he would be unfit for work until 17th
January, 1994.
3. The Company immediately wrote to the worker on 13th
January, and directed him to attend the Company's doctor
on either 13th or 14th January. The worker attended his
own doctor on 13th January and was certified as fit to
resume work on 14th January. The worker returned to
work on 14th January, 1994 having had 2 days' absence on
sick-leave.
4. The Company informed the worker that it would not pay
him for the 2 days' absence because he had not attended
the Company's doctor as requested. The worker objected
to the Company's action and the dispute was referred to
a Rights Commissioner for investigation and
recommendation.
5. The dispute was investigated by a Rights Commissioner on
17th January, 1994. The Recommendation (CW334/94), as
follows, issued on 17th February, 1995.
"I recommend that the Company concedes the Union's
request in this instance and makes the payment for
the two days, and that the worker accepts the
requirement to accept a referral to the Company's
doctor whatever the circumstances, and that his next
four days' absence (whether consecutive or not) are
only paid on receipt of certificates from the
Company's doctor".
The worker was named in the Rights Commissioner's
Recommendation.
6. By letter dated 28th February, 1995, the Company
appealed the Recommendation to the Labour Court under
the terms of Section 13(9) of the Industrial Relations
Act, 1969. The Court heard the appeal on 9th May, 1995.
COMPANY'S ARGUMENTS:
3. 1. In comparison with sick-leave schemes in industry
generally, the Company's scheme is very generous. The
only open and fair way of preventing abuse is to request
the worker to attend for a medical examination. While
it is unusual to request a medical examination on the
second day of absence, it was necessary in the worker's
case as he had a pattern of single day absences (details
supplied).
2. The Company cannot operate a sick-pay scheme where a
worker refuses to attend for a medical examination. The
Rights Commissioner's Recommendation undermines the
Company's right to manage attendance problems and
sick-pay. The Company must retain the right to have any
worker medically examined where the Company deems it to
be necessary.
UNION'S ARGUMENTS:
4. 1. While some workers have been referred to the Company's
doctor from time to time, a referral has only occurred
in cases of long-term illness or accidents on the
Company's premises. It is unprecedented for a worker to
be referred to the Company's doctor while on certified
short-term sick absence.
2. There is no valid reason why the worker should have been
treated any differently from his colleagues. The worker
should be given 2 days' pay in respect of his sick-
leave. The Union does not accept the Rights
Commissioner's Recommendation as being reasonable when
it recommends that the next 4 days' sick-leave absence
be only paid on receipt of certificates from the
Company's doctor. The worker should not be treated any
differently from his colleagues.
DECISION:
The Court, having considered the written and oral submissions
upholds the Company's appeal but recommends that the Rights
Commissioner's Recommendation be amended as follows.
The fine of 2 days' pay to be implemented but the recommendation
in relation to the claimant's next 4 absences will not apply.
The Court so decides.
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Signed on behalf of the Labour Court
18th May, 1995 Finbarr Flood
J.F./M.M. _______________
Deputy Chairman