FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : ST. PATRICK'S HOSPITAL (CORK) LTD (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY I.N.O.) DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Appeal against Rights Commissioner's Recommendation R-036566-IR-05-DI.
BACKGROUND:
2. The case concerns a dispute by the Claimant who is employed as a Staff Nurse in St. Patrick's Hospital in Marymount Hospice. On 16th October, 2002 the Claimant injured her back while preventing a patient from falling which resulted in the Claimant being out of work for approximately 6 months. The Union contends that the Employer failed to advise the Claimant as to the terms of the Voluntary Hospitals' Superannuation Scheme nor did they seek to refer her to their Occupational Physician or enable her to access their Employee Assistance Programme. Instead they applied the terms of the Sick Pay Scheme to her. Under the sick pay scheme an employee is entitled to 183 days' full pay and 183 days' half pay over a four year period. By including the period that the Claimant was absent in calculating her sick leave entitlement, she is put at a considerable disadvantage and this situation could impact on her for four-years after the event. The Union is seeking that the Claimant's sick leave entitlement should have been treated as not recordable as it was a work related injury. The matter was referred to a Rights Commissioner for investigation and Recommendation. On the 20th February, 2006, the Rights Commissioner issued his Recommendation as follows:
- “There is no dispute between the parties that an incident occurred on the 14th October, 2002 which resulted in the claimant being absent for approximately 6-months. As the claimant had submitted medical certificates, her absence was treated as sick leave and she was paid in accordance with the sick pay scheme regulations. If the matter had been dealt with as an Occupational Injury Claim then the current dispute may not have arisen.
- At the hearing the parties differed as to who had responsibility for initiating an Occupational Injury Claim with the respondent holding the view that it was the claimant’s responsibility and the claimant holding the view that the respondent was aware of the reasons of her absence and therefore should have either initiated matters or should have advised her of her options.
- Having considered the circumstances of this case I believe it is unfair that the claimant could potentially be at a disadvantage regarding their sick pay entitlement as a result of an accident at work. While I recognize that the respondent acted in accordance with procedure in processing the claimant’s absence as sick leave. I believe that had the claimant been made aware of the options available to her at the time, then this matter may not have arisen.
- I recommend that the claimant’s absence due to a work related injury should be removed from her sick pay record. In addition, I recommend that the claimant receive a once off payment of €1,500 in recognition of the financial loss she has incurred as a result off having to change her work rota.
- This recommendation is unique to the circumstances of this case and therefore forms no precedent for any future claims”.
On the 22nd March, 2006 the Employer 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 15th November, 2006.
MANAGEMENT'S ARGUMENTS:
3.1 Management argues that the Rights Commissioner was wrong to conclude that the claimant having received the full sick leave entitlement, should have this treated as not recordable based on a supposition regarding an accident that never existed. Management believes that the Recommendation is wrong and purports to conclude that no sick leave occurred. Such a principlel could have far reaching consequences if endorsed by the Court.
2 The Hospital applies generally the Terms and Conditions of Employment that operate in the Health Service. These include the benefit scheme that operates for employees who are absent. There is not a separate scheme under which an occupational injury claim might be processed as referred to by the Rights Commissioner in his Recommendation.
3. The Rights Commissioner in his Recommendation states that the Hospital "acted in accordance with procedure in processing the claimant's absence as sick leave"but then goes on to penalise the Hospital for doing so. No effect has arisen for the Claimant in relation to that part of the Recommendation which states "that the claimant's absence due to a work related injury should be removed from her sick pay record".It's a fact that more than four years has elapsed since the day of the original incident and should she suffer illness absence in the future a new roll over-period will have come into play.
4. Regarding the compensation award, the Hospital categorically rejects that the Claimant "had to relinquish her post on the ward and ransfer to a Monday to Friday duties which had significant financial implications for her".The Claimant expressed an interest and applied for and was successful in attaining the day post. The duties in this post associated with attending patients were similar to what she had been doing.
5. Management contends that there is no justification for compensation given that the change of the Claimant's work rota was an agreed change rather than a unilateral or an essential change.
UNION'S ARGUMENTS:
4.1 The Union argues that it was unreasonable that the Claimant should be at a loss if she was absent from work through illness in the future as the period that she was originally absent for was directly attributable to a work- related injury. If the Claimant had been absent due to a serious physical assault then such an absence would not be deducted from her sick leave entitlement.
2. The Claimant had to relinquish her post on the ward and transfer to Monday to Friday duties which had significant financial implications for her.
3. The Hospital failed to advise the Claimant as to the terms of the Voluntary Hospitals' Superannuation Scheme nor did they seek to refer her to their Occupational Physician or enable her to access their Employer Assistance Programme.
4. The Claimant did suffer a financial loss for the duration of her absence (through injury) and she continues to suffer a loss by virtue of the fact that she can no longer work in a ward setting but has had to transfer to a five-day facility which prevents her from accessing premium pay which impacts on her current and future earning capacity up to and including her pensionable remuneration. In the circumstances the award of €1,500 is modest.
DECISION:
At this stage the Claimant's sick-pay entitlement has been fully restored through the effluxion of time. Moreover, the Claimant did not suffer any loss in consequence of her absence having been treated as sick leave. In these circumstances the question of whether the absence should have been covered by the sick pay scheme or the Voluntary Hospitals' Superannuation Scheme is now moot.
There is, however, a serious issue as to which scheme is appropriate in the case of an absence arising from an injury suffered at work. The Court was told that there is a fundamental difference between the Union and the Health Services Executive (HSE) on this point. Against that background it would not be appropriate for the Court to make a definitive interpretation of the relevant schemes in this case. Rather, the Court is of the view this matter should more appropriately be raised between the relevant Unions and the HSE with a view to reaching a generally applicable agreement on this point.
With regard to the compensation of €1,500 recommended by the Rights Commissioner the Court is not disposed to interfere with this award in the circumstances of this case having regard, in particular, to the amount involved. The amount should be regarded as an ex-gratia payment in consideration of the fact that the Claimant suffered her injury in the course of her employment.
The Recommendation of the Rights Commissioner is varied accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
24th_November, 2006______________________
JBChairman
NOTE
Enquiries concerning this Decision should be addressed to Jackie Byrne, Court Secretary.