FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : AN POST - AND - A WORKER (REPRESENTED BY CPSU) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Appeal of a Rights Commissioner's Recommendation R-063558-Ir-08/TB
BACKGROUND:
2. The worker concerned is employed as a Staff Officer in An Post's Human Resources Services (HR Services). As a result of changes agreed with the worker's union, new work practices were agreed in December, 2007. The Company proposed that work being performed by HR staff on behalf of non-Collection and Delivery (C&D) staff would be incorporated with the existing duties of HR Services staff. The Union voiced its concern over the workload involved including that of the worker concerned. On the 10th December, 2007, the worker left work due to what he perceived as the additional workload he would have to undertake. He attended his doctor who provided him with a certificate stating that he was unfit for work. The following day he was advised by management that he would be taken off the payroll. The worker appealed the decision. He attended the Company's doctor who recommended that he return to work and he did so on 24th December, 2007.
The worker visited the Occupational Health Adviser whilst at work on the 11th January, 2008, telling her he was still felt unwell and agitated about the work changes. On her advise he visited his own doctor who told him he was not fit to resume work and he informed his line manager of this. The worker claims that in February, 2008, he was threatened with disciplinary action by management for failure to provide a medical certificate and as a result he did not receive any sick leave payments. Subsequently medical certificates were sent to the Company and the worker stated that he did not know when he would be fit to return to work.
The worker was examined by a Company Medical Officer in May, 2008, and on receipt of his report the Chief Medical Officer stated that he was not fit to return to work. On the basis that steps were being taken to facilitate a return to work the worker was paid sick pay from a current date. He had 183 days' sick leave up to 31st October, 2008, and was placed on half pay effective from 1st November, 2008. He reached 365 days paid sick absence on 18th December, 2008, and at that stage he was placed on sick pay at pension rate. In the event the worker did not return to work and his case was referred to a Rights Commissioner whose recommendation was as follows:
"I am recommending that whatever the Claimant lost as result of being taken off sick pay should be restored to him. The Company should discuss and agree with him and the Union a managed, and if necessary, a phased return to work with no diminution of his grade or status. If the Claimant considers it desirable this can be to a new location and to different work than heretofore. Every effort should be made to reintegrate him back to normal working. As a gesture, and to bring closure, I am also recommending that the Company pay him €1,500 on a without prejudice basis.
For completeness I am not deciding in his favour under the Payment of Wages Act as I consider that the matter had its origins in an Industrial Relations matter and should be dealt with in that context".
The Employer appealed the 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 4th March, 2009.
UNION'S ARGUMENTS
3. 1. The worker has been treated in a grossly unfair manner by the Company. The adverse effect on him was to make someone who was already ill endure further stress and anxiety.
2. There was a five-month-long interruption to his salary by way of withholding sick-leave payments which only added to the problem for the worker. If he is not back in work by April, 2009, he will have no income as he will have exhausted his sick leave entitlement.
3. By repaying the worker all the sick-leave entitlements in dispute the Company has, in effect, acknowledged that he was ill during the period in question. The worker deserves compensation.
COMPANY'S ARGUMENTS:
4. 1. The Company rejects any accusation that it was unfair or vindictive in its dealings with the worker.
2. The work in question would have been split between a number of staff. The worker in question had been shown what was involved and there was on-site training.
3. There was a Productivity and Change allowance of 12.5% for co-operation with ongoing change, and all necessary supports were provided. The worker removed himself from the workplace as he was unwilling to co-operate with the agreed changes. Despite this the Company agreed to pay him sick pay for the entire time he was absent.
DECISION:
The matter before the Court concerns an appeal by the employer of a Rights Commissioner’s Recommendation which found in favour of the claimant andinter alia, recommended that he should be paid a sum of €1,500.00 on a without prejudice basis and as a gesture of goodwill to bring closure to the dispute. It was this aspect of the Recommendation which the employer appealed.
Having considered the oral and written submissions of both parties, the Court concurs with the findings and Recommendation of the Rights Commissioner.
Therefore, the Court rejects the employer’s appeal and upholds the Rights Commissioner’s Recommendation in full.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
16th March, 2009______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.