FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : EIRCOM LIMITED - AND - A WORKER DIVISION : Chairman: Mr McGee Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Recommendation R-042636-IR-06/JH.
BACKGROUND:
2. The dispute concerns the decision to place the Appellant on nil pay with effect from January 2006. This followed a period of absence since February 2005. During 2005 exchanges took place between the Solicitor representing the Appellant and the employer regarding the method of payment to be adopted for the Appellant. As the dispute could not be resolved the matter was referred to a Rights Commissioner for investigation and Recommendation. On the 29th November, 2006, the Rights Commissioner issued her Recommendation as follows:
- “Taking into account all of the conclusions above and the extensive circumstances which were detailed at the hearing I recommend
- The Claimant to be placed on half pay with effect from the 12th January 2006 and full pay with effect from the 8th September, 2006.
- The period of half pay to be treated as leave of absence and not to interfere in any way with the Claimant's entitlement to sick leave going forward. The Claimant to be on full pay for six weeks from the date of this recommendation. In that six week period the Claimant to make herself available to an independent medical referee to be nominated by the company, other than the Chief Medical Officer. The Claimant to be assessed by that referee.
- Eircom to provide the independent medical assessor with all of the medical reports on her file up to and including June 2006.
- The Claimant to provide to that medical assessor a current detailed medical report from her GP and her consultant.
- The Claimant to fully cooperate with the date for the medical assessment but to be given in any event no less than seven days notice of that appointment. Should the Claimant fail to attend for the medical referee the Claimant to be removed from the payroll with immediate effect.
- The Claimant to receive a copy of the medical report.
- In the event that the Claimant is adjudged by the independent medical assessor to be fit for work she will return to work on a date to be advised by Eircom - but with no undue delay. The Claimant to be allowed to carry forward her annual leave from 2006 into 2007. On the basis of this Recommendation the Claimant is to receive her full entitlement to annual leave in respect of 2006.
- In the event that the Claimant is adjudged unfit for work by the independent medical assessor then she is to be treated in accordance with the terms of the sick pay scheme with effect from seven days after the date of the medical report. If she wishes to avail of annual leave she must contact the Human Resources Department to seek their agreement to take annual leave rather than sick leave.
- This recommendation to be implemented only if accepted by both the Claimant and Eircom - and such confirmation to be sent in writing to each other".
On the 18th December, 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 20th March, 2007.
DECISION:
The Respondent submitted to the Court that the parties had on 27th February, 2007, entered into a full and final Heads of Settlement Agreement providing for a comprehensive full and final settlement of all outstanding matters, including all outstanding litigation, between the parties (with the sole exception of a possible personal injuries employer liability claim on the part of the Appellant against the Respondent) and that that Heads of Settlement Agreement had been signed by the Appellant and witnessed by her Solicitor on that date.
The Appellant both acknowledged and confirmed that a Heads of Settlement Agreement had been entered into by her with the Respondent on the terms submitted by the Respondent on that date, that she had signed the Heads of Settlement Agreement and that it was witnessed by her Solicitor but went on to claim that she had been pressurised into signing the Heads of Settlement Agreement and she had felt the following day that she should have got a better deal than that provided for under the Agreement with respect to her pension.
The Respondent further submitted that the Court did not have jurisdiction with respect to the Heads of Settlement Agreement in contention.
The Court has carefully considered both the written and oral submissions made to it by the parties and the original Heads of Settlement Agreement itself which was submitted to the Court by the Respondent after the hearing together with confirmation that the Heads of Settlement Agreement is the only document which pertains to the settlement.
The Court is accordingly satisfied that the Heads of Settlement Agreement document was entered into by the parties on the 27th February 2007, was signed by the Appellant and witnessed by her Solicitor on that date and that it constitutes a legal agreement between the parties. Consequently, therefore, the Court finds that it has no jurisdiction to hear the substantive appeal of the Appellant before it.
The Court further finds that jurisdiction with respect to the matters contended by the Appellant at the hearing lies elsewhere.
The Court so decides.
Signed on behalf of the Labour Court
Raymond McGee
21st_May, 2007______________________
JBDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jackie Byrne, Court Secretary.