FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : SUPERQUINN - AND - A WORKER (REPRESENTED BY MANDATE) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Appeal Of A Rights Commissioner's Recommendation R-059085-Ir-07/Joc
BACKGROUND:
2. The Worker concerned has been employed by the Company since 1982. It is the Union's case that in 2006 the Worker had a total leave entitlement of 28 days. For a period of time between August, 2006 and March, 2007 the worker was absent on sick leave. In September, 2007 the Company informed the Worker that her holiday entitlement was reduced to 9 days for the year due to her absence on sick leave exceeding 26 weeks for the year. The Company's position is that a sick pay scheme is provided for all employees. As part of the scheme no holiday entitlement is deducted for the first 26 weeks of absence on long term sick leave. If that absence should continue beyond 26 weeks, holiday entitlement is calculated based on 8% of hours worked in the leave year. The Union argue that this is not an accurate reflection of the method agreed between the parties and that it contradicts correspondence form the Company.
The matter was referred to a Rights Commissioner for investigation and recommendation. On the 23rd June, 2008 the Rights Commissioner issued his recommendation as follows:
"I find the scheme is of benefit to staff however some confusion has arisen regarding the application of the scheme in how it should be applied to an employee who has been absent from work longer than the 6 months. The additional documentation submitted by the parties following the hearing showed the respondent applied the policy to 38 Staff members who had returned to work following an absence of greater than 26 Weeks. However the Union stated the policy was not applied on a general basis.
I uphold the respondent's interpretation of the agreement."
On the 21st July, 2008 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 3rd September, 2008
UNION'S ARGUMENTS:
3. 1 In correspondence dated September, 2007 the Company sets outs its position that because the worker was absent for more than 26 weeks, her leave entitlement was reduced by nine days for that year. This is contrary to the agreed practice within the Company. The position of the Union is not at all unreasonable as the maximum annual leave that anyone could accrue is for that 26 week period they were absent, beyond that reduction would take place accordingly.
2 The matter at hand concerns the company maintaining a position on how sick leave should be offset against accrual of annual leave and we believe that the Company's position is fundamentally unfair.
COMPANY'S ARGUMENTS:
4. 1 The Company has been consistent in its application of the sick leave policy. The terms and conditions surrounding sickness absence from work in the Company are in excess of those pertaining in the retail sector and there are no grounds for improvement.
2 Concession of this claim on behalf of an individual colleague would have significant knock-on implications across the business adding substantial extra cost to an already expensive sick pay scheme.
DECISION:
The Union, on behalf of the worker, submitted an appeal of the Rights Commissioner’s Recommendation. The matter at the heart of the dispute concerns the interpretation of the Company’s sick pay scheme and the accrual of annual leave during periods of sick absence.
Having examined the oral and written submissions the Court is of the view that there is a definite lack of clarity on the situation, which applies regarding the calculation of annual leave where a worker has had a sick absence in excess of 26 weeks. While there is written documentation on the situation, which applies on the accrual of annual leave for absences up to 26 weeks, there is a lacuna on the position in excess of 26 weeks.
However, despite this lack of clarity, the evidence suggests that a consistent approach has applied over the years whereby workers with long term absences in excess of 26 weeks, do not accrue annual leave during the period of their absence. On the basis of that evidence, the Court concurs with the findings of the Rights Commissioner and consequently upholds his Recommendation. The worker’s appeal fails. The Court so decides.
Furthermore, the Court recommends that the policy should be clarified to ensure there is no ambiguity over the application of the scheme for the future.
Signed on behalf of the Labour Court
Caroline Jenkinson
22nd September, 2008______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to David P Noonan, Court Secretary.