FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : NORTH WESTERN HEALTH BOARD - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Recommendation IR11541/02/TB.
BACKGROUND:
2. The issue involves a claim by a employee of the North Western Health Board who is employed in Sligo General Hospital since 1987. Since 1997, the worker has worked 19½hours per week on a job sharing basis. In 1998, the worker had a serious back operation which resulted in her being out of work for over a year. In April, 2000 the worker sent in a final certificate to Social Welfare as she had received a certificate from her doctor stating that she was fit to return to work but that she be employed on light duties. The Health Board was unable to accommodate her with light duties until October, 2000. The worker did make a claim to Social Welfare for the months from April to October 2000, the claim was refused. No appeal was lodged. The Union are claiming that the worker should be compensated by the Health Board for her loss of wages from April, 2000 until October. 2000 (28 weeks). The matter could not be resolved at local level and was referred to a Rights Commissioner for investigation and recommendation. On the 25th March, 2003, the Rights Commissioner issued his recommendation as follows:
“The implication of the Union's position seems to be that if the claimant had received social welfare benefit for the period April/October, 2000 then no claim would be made on the Health Board.
I do not see how the Health Board could be held responsible for the non-payment of a social welfare benefit.
On that basis I do not recommend in favour of the Union claim".
On the 6th May, 2003, the Union appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 19th February, 2004.
UNION'S ARGUMENTS:
3.1 The Union made a claim for payment of wages to the worker for the period April to October 2000, when the Board did not provide her with suitable employment.
2. The worker was refused Social Welfare Benefit for that period
3. The onus to pay the 28 weeks wages falls on the Health Board because it refused to allow her to work for that period.
HEALTH BOARD'S ARGUMENTS:
4.1 The worker was not fit to return to the normal work duties for which she was originally employed. The Board is not legally obliged to provide alternative work for an employee who is no longer medically fit to perform the duties for which she was originally employed.
2. The Board did create a new post with light duties for the workerin October, 2000, and this enabled her to continue her employment with the Board.
3. The worker is responsible for claiming social welfare benefits on her own behalf. The Board has no role in determining eligibility for social welfare.
4. When the worker's social welfare claim was disallowed or refused, she had the right of appeal to the Chief Appeals Officer, but did not avail of this.
DECISION:
The Court has considered the written and oral submissions of the parties. The claimant was certified fit for light duties in April, 2000 following a period of illness. The Court is satisfied that the employer fulfilled its obligations to seek out reasonable alternative employment and she was eventually returned to such duties in October, 2000. The Court is of the view that no obligation rests on the employer to pay wages to the claimant during the period April to October, 2000.
The Rights Commissioner's recommendation is varied accordingly.
The appeal is disallowed.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
8th March, 2004______________________
JBDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jackie Byrne, Court Secretary.