FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : ST JAMES'S HOSPITAL - AND - A WORKER (REPRESENTED BY IRISH MEDICAL ORGANISATION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal of a Rights Commissioner's Recommendation R-058811-IR-07/JT.
BACKGROUND:
2. The Worker, who has been employed continuously in the Irish health service since 1995, was employed as a non-consultant hospital doctor by the Employer on two successive fixed-term contracts from 1st July 2006 to 30th June 2007. On 1st June 2007, the Worker was diagnosed with a serious illness and took sick leave while undergoing treatment. On 13th August 2007, the Worker was informed that the Employer would no longer pay him while on sick leave as his contract had ended. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 24th September, 2008 the Rights Commissioner issued the following Recommendation:-
- “I have considered the submissions and arguments put forward by both parties. I note that the HSE employer’s agency appears to be taking a contradictory position according to the evidence submitted by both parties. I further note that the principle of paying employees after their contract is ended has been established in the case of Maternity Leave for NCHD’s. I further note that the claimants representative organisation (IMO) is prepared to accept the red circling of the situation and that the claimant has had 13 years service in the Irish Medical Service.
I have considered all of the above and decided that the claimant should be paid his sick pay of 6 months full pay and 6 months half pay beyond the end of his contract. This does not in any shape or form set a precedent and cannot be used as such and is exclusive to the claimant”.
- “I have considered the submissions and arguments put forward by both parties. I note that the HSE employer’s agency appears to be taking a contradictory position according to the evidence submitted by both parties. I further note that the principle of paying employees after their contract is ended has been established in the case of Maternity Leave for NCHD’s. I further note that the claimants representative organisation (IMO) is prepared to accept the red circling of the situation and that the claimant has had 13 years service in the Irish Medical Service.
3. 1. The Employer had no obligation to pay the Worker sick pay after the end of his fixed term contract.
2. There is no national sick pay scheme for doctors other than for those in training.
3. Concession of this claim would have both local and national ramifications for all health service staff.
UNION'S ARGUMENTS
4. 1. Prior to the discovery of this serious illness the Worker had never taken sick leave during his 13 years service in the Irish health service.
2. The Employer has been able to treat the Worker in an unfair manner due to the system of employingnon-consultant hospital doctors on six-month contracts.
3.The Union is aware of a number of non-consultant hospital doctors who have been paid sick pay in similar circumstances.
DECISION:
The claim before the Court is an appeal by St. James’s Hospital of a Rights Commissioner’s Recommendation, which found in favour of the Claimant and recommended that the Claimant should be paid sick pay of 6 months full pay and 6 months' half-pay beyond the end of his contract, on a red-circled basis.
The Court has carefully considered the written and oral submissions of both parties.
The Court notes that the Claimant’s contract with the Hospital expired on 30th June 2007 and that he did not seek to renew the contract nor had he applied for any positions either in the Hospital or in the Irish health system post that date. Furthermore, the Court notes that he was covered by the sick pay scheme while he was in employment with the Hospital and that payment ceased on the termination of his contract.
The Court accepts that from 1st July 2007 the Hospital had no further contractual obligation to the Claimant. It does not accept the Union’s contention that as he had been employed in various Hospitals in the Irish health system for a period of approximately 12 years, and as he had not exhausted his sick pay entitlements, he should therefore be entitled to continuing sick pay beyond the termination date of his last contract.
Neither does the Court accept that a comparison can be made with pregnant employees whose contracts are extended during periods of “protective leave” in accordance with maternity legislation.
The Court accepts that the Hospital gave serious consideration to his application to be treated as an unique case; however, it does not accept that he was given any commitments in that regard.
For all of the above reasons, the Court upholds the Hospital’s appeal and does not uphold the Rights Commissioner’s Recommendation.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
9th February, 2009______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jonathan McCabe, Court Secretary.