FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : IARNROD EIREANN - AND - ANTHONY LEADER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Mr O'Neill |
1. Appealing Against A Rights Commissioner's Decision R-085517-Ft-09/Tb
BACKGROUND:
2. This is an appeal submitted by the Employer of Rights Commissioner’s Decision No: R-085517-FT-09/TB. The case was referred to the Labour Court on the 3rd June, 2010 in accordance with Section 15(1) of the Protection of Employees (Fixed Term Work) Act, 2003. A Labour Court hearing took place on 25th November, 2010.
DETERMINATION:
This is an appeal by Iarnrod Eireann (hereafter referred to as the Respondent) against the decision of a Rights Commissioner in a complaint by Anthony Leader (hereafter the Claimant) in a complaint under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act).
The Claimant is employed by the Respondent as a crossing keeper since September 2005 on a series of fixed-term contracts. The Claimant sought a declaration that his fixed-term contract became one of indefinite duration by operation of s.9 of the Act. The Claimant also claimed that the Respondent contravened s.6 of the Act in refusing to afford the Claimant the benefit of a welfare scheme available to comparable permanent employees. This scheme provides for payments to employees during absence from work due to illness. It also provides free access to a GP.
The Rights Commissioner held that the Claimant was entitled to a contract of indefinite duration by operation of s.9 of the Act. He also held that the Respondent contravened s.6 of the Act in excluding the Claimant from its welfare scheme. The Respondent was directed to provide the Claimant with a contract of indefinite duration. The Claimant was awarded compensation in the amount of €5,000 for the contravention of s.6 of the Act which the Rights Commissioner found to have occurred.
The Respondent granted the Claimant a contract of indefinite duration in accordance with the decision of the Rights Commissioner. The Respondent also accepted that the exclusion of the Claimant from the benefits of the welfare scheme contravened s.6(1) of the Act. However, the Respondent appealed to the Court against the quantum of the award made by the Rights Commissioner.
Position of the parties
In advancing its appeal the Respondent contended that the Claimant had not suffered any financial loss in consequence of not being included in the welfare scheme. It was pointed out that the Claimant was not absent through illness at any time while employed on a fixed-term contract and could not have accrued any entitlement to the benefits of the scheme in that period.
The Claimant accepted that he was not absent through illness in the relevant period. He did claim, however, that he had visited his GP in the period and met the costs involved from his own resources. It was pointed out on his behalf that had he been included in the scheme he would have qualified for free medical consultations for himself and his immediate family
Conclusions of the Court
The Claimant was undoubtedly entitled to the benefits of the welfare scheme if the circumstances had occurred in which the benefits of the scheme accrue. Since the Claimant was not absent from work because of illness the question of accruing an entitlement to sickness benefit simply did not arise.
The Claimant told the Court that he did visit his GP in the relevant period. By being excluded from the GP service provided by the scheme the Claimant suffered a loss equal to the consultation fees which he paid to his GP.
Section 14(3) of the Act provides that a complaint cannot be entertained in respect of an act (or omission) which occurred in the six months before the claim was presented. The Claimant presented his complaint in October 2009. He is therefore entitled to recover from the Respondent the costs incurred by him or his family in consulting his GP in the six-month period prior to the presentation of his complaint to the Rights Commissioner.
Determination
The Court was told that employees are required to make a contribution of €100 per year in order to participate in the welfare scheme. The Claimant should make the appropriate contribution to the scheme for the six month period cognisable by his claim. The Respondent should then reimburse him in an amount equal to the vouched consultations fees which he expended in that period.
The Rights Commissioner decision is varied accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
10th December, 2010______________________
DNChairman
NOTE
Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.