FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DUBARRY SHOES LIMITED - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Pierce Worker Member: Mr. Somers |
1. Appeal against Rights Commissioner's recommendation IR 3172/00/CW.
BACKGROUND:
2. The issue before the Court concerns the application of the Company's Sick Pay Scheme to an individual worker. Following a Labour Court hearing the Sick Pay Scheme was introduced in 1999 and was backdated to commence on the 1st of January, 1999. The scheme provided for 30 days certified sick pay benefit in 1999 and a maximum of 45 days certified sick pay benefit from the 1st of January, 2000. The employee concerned was absent from work from the 3rd of November, 1999 to the 7th of March, 2000. She was paid sick pay benefit up to the 31st of December, 1999, but the Company refused payment from the 1st of January, 2000 on the grounds that the employee should have resumed work to re-qualify for benefit for the year 2000.
The Union referred the dispute to a Rights Commissioner for investigation. The Rights Commissioner found that the sick pay scheme was silent on the issue of a re-qualifying period, but that as the scheme was funded by the Company, it should have discretion to determine silent issues. The Rights Commissioner issued his recommendation on the 16th of March, 2001, as follows:-
"I recommend that (the worker) accepts the company decision in this instance."
(The worker was named in the Rights Commissioner's recommendation).
The Union appealed the recommendation to the Labour Court on the 27th of April, 2001, in accordance with Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal in Athlone on the 26th of February, 2002, the earliest date suitable to the parties.
UNION'S ARGUMENTS:
3. 1. The wording of the sick pay scheme was provided by Dubarry management, with some changes by agreement with SIPTU. Neither side sought to include a re-qualifying period.
2. The Union has negotiated other sick pay schemes locally and none of them contain a re-qualifying period.
3. There is a review mechanism in the scheme, which provides for a review this year. Any omissions can be dealt with at that time.
4. The employee concerned has satisfied the reporting requirements under the terms of the scheme and should be paid on that basis. Another employee who had a similar case in 1999/2000 was paid and no re-qualifying period was insisted upon.
COMPANY'S ARGUMENTS:
4. 1. The scheme provides for 30 days (6 weeks) sick pay in 1999 and 45 days (9 weeks) from the 1st of January, 2000. The employee concerned went on certified sick leave for the last 6 weeks of 1999 and received her full entitlement for that year.
2. The employee did not return to work in 2000, but continued her absence for a further 9 weeks. The Company refused payment for 2000, as it is unprecedented for any sick pay scheme to pay two years’ benefit without an intervening return to work.
3. The circumstances of the other case referred to by the Union are different from the present one. That employee was absent from work in February/March 1999 and resumed duty in April, 1999.
4. The Rights Commissioner found that the Company’s response was reasonable and that the Company should have discretion to determine the issue.
DECISION:
The Court has given consideration to this claim for the continuation of sick pay where the named worker's sick leave straddled from 1999 into 2000.
The Union maintains that payment should continue in accordance with the provisions of the scheme without the necessity for a qualifying working period between benefit periods.
The scheme provides for 30 days' certified sick pay in the first year 1999, and 45 days' maximum from 1st January, 2000.
This was a new scheme, agreed late in 1999 and made retrospective to January, 1999. It is due to be reviewed shortly.
The Court is of the view that to allow for the continuation of a payment from one calendar year to another without a re-qualifying working period could have the potential to present problems for the employer. However, in this case due to the lack of clarity at the time the agreement was entered into and the possibility for misinterpretation, the Court recommends that the sick pay benefit for this employee should be paid as claimed by the Union. This matter should be dealt with in the pending review of the scheme.
The Court varies the Rights Commissioner's recommendation accordingly.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
8th April, 2002______________________
D.G.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Dympna Greene, Court Secretary.