Labour Court Database __________________________________________________________________________________ File Number: CD95520 Case Number: AD9577 Section / Act: S13(9) Parties: CADBURY IRELAND LIMITED - and - AMALGAMATED TRANSPORT AND GENERAL WORKERS UNION |
Appeal by the Union against Rights Commissioner's Recommendation No. ST149/95.
Recommendation:
The Court concurs with the findings of the rights Commissioner
that an anomaly exists.
This, in the view of the Court is best dealt with at the time of
renewal of the Agreement.
Accordingly, the Court upholds the Rights Commissioner's
recommendation and rejects the appeal of the claimant.
The Court so decides.
Division: Mr McGrath Mr Pierce Mr Walsh
Text of Document__________________________________________________________________
CD95520 APPEAL DECISION NO. AD7795
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES:
CADBURY IRELAND LIMITED
AND
AMALGAMATED TRANSPORT AND GENERAL WORKERS UNION
SUBJECT:
1. Appeal by the Union against Rights Commissioner's
Recommendation No. ST149/95.
BACKGROUND:
2. The appeal concerns a worker who was absent from his
employment through illness form 10th August to 19th
September, 1994 - 5 weeks. He was hospitalised for the first
two weeks of his illness. The worker was made the following
benefits under the Company's Sickness Benefit Scheme:-
- 3 weeks at Category 1 level of payment
(in Category 1 the Company makes up State Benefit
and tax refund to 100% of normal net take home pay)
- 2 weeks at Category 2 level of payment
(in Category 2 the Company makes up State Benefit
and tax refund to 80% of normal net take home pay)
The worker accepts that this is the normal level of payment
provided under the rules of the Scheme. He claims however,
that he should have been covered under the Hospitalisation
Clause which provides that:-
"Where a Category 1 employee is hospitalised on
certified absence covered by the Sick Benefit Scheme the
Company will extend the Category 1 entitlement to a
maximum of seven weeks or the duration of the hospital
stay, whichever is the shorter. This extension will not
apply to Category 2 entitlement."
The worker claims that as he was in hospital during the first
2 weeks of his illness the above Clause should have formed
part of his entitlement and that rather than being paid 3
weeks at 100% in Category 1 and 2 weeks at 80% in Category 2
he should have been paid 5 weeks at the level of 100%
Category 1.
Management rejected the claim. The dispute was referred to a
Rights Commissioner for investigation and recommendation. On
the 31st July, 1995 the Rights Commissioner issued the
following recommendation:-
"There are indeed serious ramifications for the Sick
Scheme in this case. It would be totally inappropriate
for a third party to make a recommendation on an issue
such as this one in all the circumstances. There is a
clear anomaly arising in the case. A strict
interpretation of the Agreement leaves no doubt but that
the Union's claim would fail
However the claimant has highlighted a situation where a
beneficiary could be at a distinct disadvantage by not
being admitted to hospital in the first three weeks of
sickness due to reasons beyond his control. This
position should be addressed by the Parties generally.
I therefore recommend that the anomaly above is jointly
addressed by the parties at the next Wages Review with a
view to covering such situations in the future."
On the 7th September, 1995 the Union appealed the
recommendation to the Labour Court under Section 13(9) of the
Industrial Relations Act, 1969. The Court hear the appeal on
the 24th October, 1995.
UNION'S ARGUMENTS:
3. 1. The Rights Commissioner accepted that a clear anomaly
existed in this case. The Union is not happy with his
recommendation that the matter be addressed at the next
round of pay negotiations because they do not commence
until 1997.
2. The anomaly must be addressed at this time. The
reasons for the worker's stay in hospital were totally
beyond his control yet he was penalised because of the
anomaly existing whereby a beneficiary of the Scheme is
at a distinct disadvantage by being admitted to hospital
at the start of an illness rather than two-three weeks
into the illness.
3. The Union contends that the Company is playing with
words in respect of its application of the
hospitalisation clause in insisting that if the
claimants view of the clause is correct it would read
"extended by the length of the hospital stay to a
maximum of seven weeks" whereby the wording of the
clause states "the Company would extend the Category 1
entitlement to a maximum of seven weeks or the duration
of the hospital stay."
COMPANY'S ARGUMENTS:
4. 1. The primary purpose of introducing this clause regarding
"hospitalisation" was to provide additional cover for
people in situations where they were in hospital after
Category 1 entitlement i.e. three weeks was used. The
worker was out of hospital before the end of his
Category 1 entitlement was used and, therefore would not
be covered. The working of the clause reflects this
position stating "the Company would extend the Category
1 entitlement to a maximum of seven weeks or the
duration of the hospital stay". If the worker's
interpretation had been intended it would have stated
extended by the length of the hospital stay to a maximum
of seven weeks.
2. The Sick Benefit Scheme was introduced in 1979. The
Company has applied this clause in the manner outlined
since then. If the application of the scheme was not
consistent with the negotiated terms the claim would
have been taken by the Unions prior to this. Any change
in the application of this clause now would have
repercussive effects. These effects would extend to
other employee groups in the factory since the scheme is
common to all groups across the site.
3. While the Company did not fully accept the Rights
Commissioner's view that the current situation presented
an anomaly it was willing to accept the recommendation
to resolve the issue. Management was only able to do so
because the Rights Commissioner addressed two of the
Company's major concerns (1) upheld the current
agreement and (2) took account of the Company's
difficulties about the dangers of dealing with the claim
outside the agreed channels. The Rights Commissioner's
recommendation to address the issue as part of the next
wage negotiations is reasonable.
DECISION:
The Court concurs with the findings of the rights Commissioner
that an anomaly exists.
This, in the view of the Court is best dealt with at the time of
renewal of the Agreement.
Accordingly, the Court upholds the Rights Commissioner's
recommendation and rejects the appeal of the claimant.
The Court so decides.
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Signed on behalf of the Labour Court
15th November, 1995 Tom McGrath
T.O'D./D.T. _______________
Deputy Chairman