FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE SOUTH, WATERFORD REGIONAL HOSPITAL (REPRESENTED BY HSE SOUTH) - AND - A WORKER (REPRESENTED BY PSYCHIATRIC NURSES' ASSOCIATION OF IRELAND) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr O'Neill |
1. Appeal of Recommendation of a Rights Commissioner r-068814-ir-08/JOC
BACKGROUND:
2. The case concerns a Staff Nurse employed at the Waterford Regional Hospital since 1991. Issues arose regarding her non-attendance at her place of work due to an ongoing medical reason which has caused her to lose 194 days over the past four years.
The matter was referred to a Rights Commissioner for investigation and recommendation. On the 8th June, 2009, the Rights Commissioner issued his Recommendation as follows:
(a) The claimant is put back on the sick pay scheme with effect from the 1st January '09
(b) That any loss suffered by the claimant from the 1st January '09 is reimbursed to her.
(c) Both parties work together to provide assistance to the claimant to help her overcome her health issues.
On the 17th July, 2009 the Employer appealed 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 28th April, 2010.
UNION'S ARGUMENTS:
3. 1. Despite the absence of any misconduct the Disciplinary Procedure was invoked by Management, they ignored the Worker's right of appeal and then refused to accept the Recommendations of the Rights Commissioner.
2. The Worker must be put back on the Sick Pay Scheme and reimbursed with any loss suffered. Her work pattern ought to be tweaked in line with the Occupational Health Department's Recommendations.
COMPANY'S ARGUMENTS:
4. 1. The Worker was treated the same as everybody else who has a level of absenteeism due to sick leave which warrants concern on the part of the Employer. She was progressed fairly in accordance with the Managing Attendance Policy.
2. Despite counselling there was no improvement in her attendance, the decision was taken by Management to progress the issue through the Disciplinary Procedure, a nationally agreed document.
DECISION:
This is an appeal by HSE West of a Rights Commissioner’s Recommendation, which found in favour of the Union’s claim that HSE had inappropriately applied the disciplinary procedure due to the level of her absenteeism.
Having considered the oral and written submissions of both parties the Court is of the view that the Managing Attendance policy was correctly applied in this case due to the Employee’s level of absenteeism. The Court is of the view that the disciplinary action invoked against the Employee was applied in accordance with that policy.
Accordingly, the Court overturns the Recommendation of the Rights Commissioner and upholds the Employer’s appeal.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
19th May, 2010______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.