FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : BALLINA TOWN COUNCIL - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr McGee Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal Against Rights Commissioner's Recommendation R-047701-Ir-06/Jf
BACKGROUND:
2. The Union's claim is that Management refused to recognise that one of its members had an accident while at work. As a consequence of this the worker concerned was unable to obtain benefit from the Department of Social and Family Affairs. In August 2005, the worker reported to the Assistant Town Foreman that he had injured himself the previous day while at work. As a result of the pain, the worker visited his doctor and the A & E Department of the local hospital. He subsequently called to the office of the Town Clerk and requested that a form be signed authorising pay from the Department of Social and family Affairs. The town clerk informed him that she was not in a position to sign the form as having investigated the matter, nobody actually witnessed the accident. The matter was referred to the Rights Commissioner for investigation and recommendation. On the 16th July, 2007 the Rights Commissioner issued his Recommendation as follows:
"Having considered the submission made by both parties, accepting the concern raised by SIPTU in relation to the precedent it might be set where an accident may occur but have no witnesses. I recommend that both parties enter into discussions in relation to the health and safety policy and procedures on reporting accidents.
I further note that the respondent did not seek independent medical advice with regard to the claimant which they would have been entitled to do. I also further note that there was no medical report from the A&E Unit of the local hospital, if there was it would have substantiated the claimants injury.
Having considered the facts of this case, on balance of probability I do not find the claim well founded and therefore the claim falls."
On the 29th August, 2007 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 25th November, 2008
UNION'S ARGUMENTS:
3. 1 It is unacceptable that Management was not in a position to sign a claim form as nobody witnessed the accident. Such a precedent would have far reaching implications not only throughout the county but nationally as well.
2 Management also stated in a letter that the worker was not entitled to be paid by the Council as he had availed of all his sick leave for the year previous to the accident. The Council's sick pay scheme provides for consideration for an extension to sick leave up to a maximum of 6 months in any year.
3 Management failed to participate positively with the Rights Commissioner's Recommendation to deal with concerns regarding the establishment of precedent. The core issue of accidents not witnessed being dismissed still remains.
COMPANY'S ARGUMENTS:
4. 1 Management has no evidence that this alleged incident occurred during the normal working day. The worker's colleagues who would have been working alongside him at the time have no recollection of any incident concerning the worker.
2 On the social welfare Injury Benefit Application form submitted to this office, the section to be completed by the medical certifier was not completed.
3 The Council Sick Pay Scheme allows an employee sick pay for a period of not more than 12 weeks in any period of 12 months commencing on the first day of absence, provided there is a reasonable prospect of returning to work. An employee may be allowed a maximum of 7 days uncertified sick pay in a calendar year subject to not having availed of the 12 weeks. As the worker concerned had already availed of the 12 weeks in 2005, and had exceeded that on a previous occaison in 2002, he was not entitled to uncertified sick pay for 2005.
DECISION:
The Court, having heard the arguments in this case, dismisses the appeal and confirms the Rights Commissioners Recommendation, emphasising to the parties the urgency of developing a protocol for dealing with situations in which accidents occur where there are no witnesses.
The court so decides.
Signed on behalf of the Labour Court
Raymond McGee
10th December, 2008______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to David P Noonan, Court Secretary.