FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : NATIONAL REHABILITATION HOSPITAL - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr McGee Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal of Rights Commissioner's Recommendation. R-034514-IR-05-DI
BACKGROUND:
2. The case before the Court is an appeal by the Union of Rights Commissioners Recommendation R-034514 IR-05-DI. The dispute concerns an employee of the National Rehabilitation Hospital, Dun Laoghaire, Co Dublin. The Union (on behalf of the worker) is claiming that the employee in question sustained an occupational injury when a fire extinguisher was accidentally discharged causing severe irritation to the eye and skin and was absent from work for a considerable length of time as a result. In addition, the Hospital's Occupational Health Centre had prescribed medication incorrectly which it is claimed exacerbated the skin irritation, prolonging the period of absence. It is seeking compensation for the loss of overtime earnings as a result of the prolonged period of absence.
The Hospital's position is that the employee was absent from work for a considerable length of time and was paid the appropriate sick-pay entitlements. No evidence has been brought forward to suggest that the injuries had been received as a result of exposure to the fire extinguisher or as a result of the prescribed medicines.
The matter was referred to a Right's Commissioner for investigation and Recommendation. His Recommendation issued on 18th October 2005
as follows:
"Having considered the submissions made by the parties I am not convinced that the claimant has shown that his absence from work resulted from either exposure to the contents of the fire extinguisher or from an incorrect diagnosis and being the prescribed the wrong medication."
On the 10th November 2005, the Union appealed the Right's Commissioner's Recommendation in accordance with Section 13(9) of the Industrial Relations Act,1969. A Labour Court Hearing took place on 8th February 2006.
UNION'S ARGUMENTS:
3. 1. No training of any kind was given in the use of the fire extinguisher nor was any protective clothing provided while the contents of the extinguisher were being removed. The ensuing injuries which were exacerbated by mis-diagnosis and incorrect prescriptions caused a prolonged period of absence from work.
2. As a result of the period of sick leave, caused by negligence on the part of the hospital, the employee has suffered a loss of overtime earnings, which are not included in the payment of Sick Benefit.
3. The claim for compensation based on the loss of overtime while out sick is fair and reasonable in the circumstances.
EMPLOYER'S ARGUMENTS:
4. 1. The employee in question was aware of the Hospital's policy that an injury sustained at work should be reported. The Occupational Health Unit would then assist the injured party in every way possible. No report was made of any injury until two days after the incident.
2. After the injury was reported, the employee was given all possible assistance and was paid all sick leave entitlements in line with the agreed Sick Pay Scheme.
3. Due to an error, there was an overpayment of sick leave entitlements paid to the employee. To date the Hospital has not sought to have the overpayment refunded.
DECISION:
Having considered the submissions of the parties, the Court upholds the Right's Commissioners Recommendation and dismisses the appeal.
Signed on behalf of the Labour Court
Raymond McGee
22nd February 2006______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.