FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TESCO IRELAND LIMITED - AND - A WORKER (REPRESENTED BY MANDATE) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal of Recommendation of a Rights Commissioner r-068075-ir-08/JW.
BACKGROUND:
2. The Worker is employed by Tesco at their store in Tallaght. She alleges that her employer failed to pay her sick leave entitlement in relation to the protection afforded to her under Section 22(1) of the Maternity Protection Act, 1994.
The issue involves a claim by a Worker. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 5th January, 2009, the Rights Commissioner issued his Recommendation as follows:
"The Company has honoured in full the terms of the sick leave scheme, and continues to do so. While the Claimant was on maternity leave the employer complied fully with the terms of the Maternity Protection Act 1994 and has not breached Section 22(1) of the Act in relation to the Claimant.
The Employer did not affect any right of the Claimant in the manner and context in which they applied the Company sick pay scheme to the Claimant. I find that the complaint is not well-founded".
On the 11th February, 2009, the Worker appealed the Rights Commissioners 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 7th May, 2009.
UNION'S ARGUMENTS:
3. 1. From 1st to the 14th January 2008 the Worker remained on maternity leave and was therefore covered by the protection outlined in Section 22(1) of the Maternity Protection Act 1994 and deemed to be not absent from work.
2. There can be only one interpretation of the Act and that is that the Worker for all intents and purposes was present from 1st January until 14th January 2008. From 14th January to 12th March 2008 she was absent due to her taking her accrued public holiday and annual leave entitlements and therefore was entitled to her sick pay.
COMPANY'S ARGUMENTS:
4. 1. The sick pay scheme runs from January to December. When a worker is on long term unpaid sick leave they must return to work in the new calendar year in order to qualify for sick leave in that year, as per the rules of the scheme.
2. The Worker was not paid the eight weeks' sick pay in 2008 as she had not actually returned to work during 2008.
DECISION:
The matter before the Court is an appeal by the Worker of a Rights Commissioner’s Recommendation, under the Industrial Relations Act, 1969, which did not find in her favour.
The Worker had availed of her full paid sick leave entitlement (eight weeks') in 2007, before the commencement of her maternity leave on 14th July 2007. Before the Rights Commissioner she claimed that she was entitled to a further eight weeks' paid sick leave entitlement in the following sick leave (calendar) year on the expiry of her maternity leave on 14th January 2008, after which she availed of her outstanding public holiday and annual leave entitlements, which in turn expired on 12th March 2008.
As the employee had exhausted her sick leave entitlement for 2007 prior to the commencement of her maternity leave, the Company stated that the rules of the scheme require her to return to work before she can become entitled to a fresh entitlement of eight weeks' paid sick leave.
Having examined the oral and written submissions of both parties, the Court accepts that the rules of the scheme require the Worker to be in attendance at work in a further sick leave year before a fresh entitlement to paid sick leave can arise.
Therefore, the Court dismisses the appeal and upholds the Rights Commissioner’s Recommendation.
Footnote
For the avoidance of any doubt the Court has not issued a decision under the Maternity Protection Acts, 1994 and 2004. The Court has no jurisdiction under those Acts.
Signed on behalf of the Labour Court
Caroline Jenkinson
27th May, 2009______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.