FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : LUFTHANSA TECHNIC AIRMOTIVE IRELAND - AND - ULICK DALY (REPRESENTED BY TECHNICAL, ENGINEERING AND ELECTRICAL UNION) DIVISION : Chairman: Mr McGee Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal against a Rights Commissioner's Decision r-059326-wt-07/JW
BACKGROUND:
2. This case concerns a mechanic who has worked for the Company since 1987 and is based in Rathcoole Co. Dublin. He claimed for the reinstatement of a Public Holiday as a consequence of him being off work on sick leave on 17th March, 2007, as provided for by the Organisation of Working Time Act, 1997.
The matter was referred to a Rights Commissioner for his consideration, he issued his Decision on the 26 August, 2008 as follows:
" I find that the Complainant has a valid complaint. He is to receive either an additional day's annual leave or a day's pay."
The Employer appealed the Rights Commissioner’s Decision to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997, (the Act) on the 8th October, 2008.
` The Court heard the appeal on the 11th December, 2008.The following is the Court's Determination:-
DETERMINATION:
The Union has alleged that the Company, in paying for the public holiday, offset part of the Claimant’s general entitlement to sick pay under the collective agreement covering sick pay, between the Company and the Union and, therefore, the Company has not discharged its statutory obligation to the Claimant in respect of the Public Holiday (17th March 2007) which occurred while the Claimant was on sick leave.
In support of its case, the Union quoted Labour Court Determination DWT0611- (Thermo-King v Amicus).
In the Thermo-King case, the Court decided that the entitlement of that Claimant in respect of Public Holidays was subsumed within the Company’s sick pay scheme and that the Claimant had not, therefore, benefited in respect of Public Holidays and that this constituted a breach of Section 21(1) of the Act.
In the instant case, however, the arrangement operated by the Company must be distinguished from that in the Thermo-King case in that, under the scheme which operates, an employee’s sick leave entitlement is neither subsumed within nor offset by the occurrence of a Public Holiday during a period of sick leave. Also, the Company has always applied the sick leave scheme in this manner over a long number of years.
The Court, therefore, does not agree that there has been a breach of Section 21 of the Act, and allows the appeal and sets aside the Decision of the Rights Commissioner.
The Court so decides.
Signed on behalf of the Labour Court
Raymond McGee
9th January, 2009______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.