FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE WEST (REPRESENTED BY HSE WEST) - AND - A WORKER (REPRESENTED BY IMPACT) DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Appeal of a Rights Commissioner's Recommendation No. R-039752-Ir-06/TB.
BACKGROUND:
2. The grievance arose after a meeting in June 2004 when a decision was reversed regarding the placement of a Home Help Worker and the then North-Western Health Board invoking its Disciplinary Procedure against the Claimant who is the Home Support Organiser, as a result of her conduct during the meeting. Subsequently the Claimant experienced harassment and took sick-leave on 16th July, 2004, reporting work-related stress.
The matter was referred to a Rights Commissioner for investigation and recommendation. On the 7th June, 2006 the Rights Commissioner issued his Recommendation as follows:-
"In considering the matter I have concluded that the whole thing was allowed to go off the rails at a fairly early stage. I believe the primary responsibility of this must rest with management.
I believe also there was undue delay in dealing with the disciplinary process after an initial disciplinary meeting of the 21st of June 2004.
This is acknowledged by Management in a letter addressed to the Claimant on the 13th of December, 2005.
In settlement of the dispute I recommend that the Claimant be paid her salary as if she were working for the period from July to December 2004 and that period be taken as not counting against her sick leave entitlements.
I do not recommend payment of any subsistence allowance during her absence nor do I recommend that any formal apologies should be insisted on. Both parties should accept that mistakes were made in the way in which this matter was handled and they should accept that this Recommendation brings closure to the matter".
On the 11 July, 2006, the Worker 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 21st November, 2007.
UNION'S ARGUMENTS:
3. 1.As a result of series of incidents not of the Worker's making, she became the victim of abusive behaviour and harassment at work and suffered from work-related stress as a result.
2.An acknowledgement from the Management that disciplinary proceedings should never have been initiated against her.
3. The Union is seeking reimbursement of all her medical expenses, to have her sick-leave discounted in her sick-leave quota, credit for compassionate leave and full pay and subsistence for the period while she was on sick-leave.
COMPANY'S ARGUMENTS:
4. 1. A meeting was arranged with the Home Help Worker where she was informed that the decision to remove her from her position was a collective HSE Management decision and not as she had believed undertaken solely by the Claimant.2. There is no provision within the Sick Leave Policy to discount periods of sick-leave attributed to work-related stress.3. The HSE West consider the Rights Commissioner's Recommendation as reasonable in the circumstances and are prepared to implement it in full.
DECISION:
This case came before the Court against the background of a series of events which caused considerable difficulty for the Claimant in her employment. These events flowed from an imputation that the Claimant was responsible for an occurrence with which, it is now acknowledged, she had no involvement.
A mediation process was initiated and an agreement was reached between the Claimant and the Board by which the main issues in contention were resolved. This agreement provided, in effect, that three specified pay-related industrial relations issues would be referred to a Rights Commissioner for investigation. These matters were investigated by a Rights Commissioner and it is against his Recommendation that the Claimant appealed to the Court.
In the course of its submission to the Court the Union contended that the meditated agreement has not been fully implemented. On that account the Union again raised issues which were addressed and resolved by that agreement.
In the Court's view the meditated agreement was intended to provide a final resolution of all issues in dispute between the parties other than those which were expressly left over for referral to a Rights Commissioner.
Those matters are:-
- A claim for backdating pay to November 2004 ( in respect of a period during which the Claimant was absent through illness but her sick leave entitlement was exhausted).
- A claim for the period to be discounted as sick leave.
- A claim for the payment of subsistence for the period in question.
Having considered the extensive submissions of the parties, and in order to bring finality to this unfortunate episode, the period recommended by the Rights Commissioner in respect of which the Claimant is to receive her full salary should be extended to 31st March 2005. The Court notes that the Board is constrained by the rules of its sick pay scheme in extending the period during an employee can receive full pay while on sick leave. In order to overcome any difficulty in that regard the extended period should be treated as one of special paid leave.
With regard to the claim for the payment of subsistence, these payments are intended to compensate for expenses wholly, exclusively and necessarily incurred in the performance of duties. In the Court's view there is no reasonable basis upon which subsistence payments can be claimed in respect of a period during which, for whatever reason, a person is absent from work and not performing his or her duties. Accordingly the Court affirms the Rights Commissioner's Recommendation on that aspect of the claim.
Finally, the Court is concerned at suggestions that the meditated agreement has not been fully implemented. That agreement was intended to bring finality to an episode which had caused considerable rancour between the parties. It is imperative that both parties co-operate fully with each other so as to ensure that this agreement is fully implemented and this matter finally closed. The Court would urge both parties to take such measures as are necessary to implement outstanding aspects of the agreement without further delay.
The Rights Commissioner's Recommendation is accordingly varied in the terms of this Decision.
Signed on behalf of the Labour Court
Kevin Duffy
20th December, 2007.______________________
JF.Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.