FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DAVID MAYRS LTD - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr McHenry Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Recommendation IR328/99/JH concerning payment during period of sick leave.
BACKGROUND:
2. The worker concerned has been employed by David Mayrs Limited as a driver for over 20 years. The Company which is involved in the distribution trade employs approximately 53 people, 10 of whom are drivers.
The dispute concerns the Union's claim on behalf of the worker for payment in relation to sick absences which have occurred since November, 1998. It argues that it is normal practice in the Company to pay employees absent on certified sick leave.
Management's position is that the worker's absenteeism is appalling and that it was left with no alternative but to cease payment to the worker in the best interests of the Company and its employees.
The matter was referred to a Rights Commissioner for investigation and recommendation. The Rights Commissioner's conclusion and recommendation are as follows:-
"There should be a medical scheme in the Company. Allied to this there should be a grievance/disciplinary agreement. The agreements should provide for medical assessment where there is any doubt regarding a persons fitness for work. I do not
accept that the matter of payment or otherwise can be totally at the discretion of the Company. Such decisions should conform to the terms of the agreed scheme.
In the case of the worker I consider that full payment should be made for the period in November - January 1999. For the period in 1999 he should receive 50% of his nett pay - less social welfare. There should be no further payments to the worker pending the negotiation of a sick pay scheme - or June 2000, whichever is the earliest. Any medical assessment of the worker or any further payments to him should be in the context of the terms of the agreed scheme".
The Rights Commissioner's Recommendation was appealed by the Company to the Labour Court on the 16th of December, 1999 under Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal on the 24th of February, 2000.
UNION'S ARGUMENTS:
3. 1. It is normal practice in the Company to pay employees absent on certified sick leave. With the exception of the worker concerned, no member of SIPTU has been refused payment in the past. There was no consultation, negotiation or agreement regarding the worker's sick pay before it ceased. This is unacceptable industrial relations practice.
2. National Agreements over many years have recognised the entitlement of employees to seek the introduction of, or improvement in sick pay schemes. In that context it is unacceptable that payment during certified sick leave is at the discretion of the employer.
3. The worker contends that other employees have been paid sick pay for periods longer than the one in dispute and that he was unfairly treated by the Company at a time when he was vulnerable due to ill health.
4. The Company has not supplied any evidence of abuse of the existing sick pay arrangement. In the circumstances it should continue to pay for all periods of sick leave, as in the past. If the Company has any difficulties with this arrangement, the Union is prepared to attempt to negotiate an acceptable sick pay scheme for all Union members.
COMPANY'S ARGUMENTS:
5. 1. The worker has an appalling sick leave record. In the last five years he has been absent for approximately 25 weeks. In his absence his van is parked as it is impossible to recruit a van driver at short notice.
2. The Company cannot afford to pay the worker for extensive absences. Payment was stopped in the case of another employee when the Company considered that the scheme was being abused.
3. On at least two occasions the worker appeared on the Company's premises under the influence of alcohol. On one such occasion he had to be restrained from driving a van. The Marine Port and General Workers Union of which he was a member at that time recommended that he be suspended for one week and dismissed in the event of similar incident.
4. Management consider that the worker had abused the system and that it was left with no alternative but to cease payment in the best interest of the Company and its employees
DECISION:
In support of its appeal the Company has relied on the recent employment record of the worker concerned, which it regards as most unsatisfactory. The type of incidents highlighted by the Company in its submission to the Court could, appropriately, be addressed through a normal disciplinary procedure. However, in this case the Company has accepted that the withdrawal of sick pay benefits from the worker was not regarded as a disciplinary measure.
Having regard to all of the circumstances of this case the Court considers that the Recommendation of the Rights Commissioner is reasonable and should be upheld.
The Court shares the view expressed by the Rights Commissioner that the parties should consider putting sick leave arrangements on a more formal basis by the conclusion of a sick pay agreement. The parties might also consider the desirability of introducing a formal disciplinary procedure.
The recommendation of the Rights Commissioner is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
16 March, 2000______________________
F.B./U.S.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Fran Brennan, Court Secretary.