FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DAUGHTERS OF CHARITY (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY INMO) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioner Recommendation No: r-088820-ir-09/TB
BACKGROUND:
2. This case concerns an appeal by the Union of Rights Commissioner Recommendation No: r-088820-ir-09/TB. The issue concerns whether a worker while on sick leave accrues annual leave during the absence. In the instant case, the worker was absent on a serious physical assault scheme and a dispute has arisen in relation to the annual leave entitlement. The employer's position is that the worker was not entitled to accrue annual leave as she was on an enhanced scheme which differs from the regular sick pay scheme. The Union's position is that irrespective of which sick pay scheme is in operation, the worker remains entitled to accrue annual leave for the period in question.
The dispute was referred to a Rights Commissioner for investigation. His Recommendation issued on the 8th June, 2010 and did not find in favour of the Union's claim on the basis that there was no clear evidence submitted that absence resulting of a physical assault was comparable to absence arising from sick leave.
On the 8th July 2010, the Union appealed the Rights Commissioner's Decision to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 16th March, 2011.
UNION'S ARGUMENTS:
3 1 The worker is incorrectly classed as a member of the Private Health Service. The worker is subject to the Public Service Pension levy and recent reductions in pay and is, therefore, properly classed as an employee of the Public Health Service.
2 It is well settled that annual leave entitlements accrue while a worker is out on certified sick leave, irrespective of which scheme is provided by the employer.
MANAGEMENT'S ARGUMENTS:
4 1 It is not accepted that the worker is an employee of the Public Health Service. As there is no statutory entitlement to Sick Pay in the private sector, the provisions of the Sick Pay Scheme it operates are correctly applied by management.
2 Concession of this claim would effectively confer an unfair advantage on the worker as she would accrue annual leave while absent from work in addition to the additional benefits on the Serious Physical Assault Scheme.
DECISION:
The claimant's conditions of employment are determined by reference to the conditions applicable to nurses in the general public health service. Moreover, the claimant is subject to the public service pension levy and was subject to reductions in her pay pursuant to the Finical Emergency Measures in the Public Service (No.2) Act 2009. She is, therefore properly classifiable as a public servant.
It is an established condition of employment in the Public Health Service that employees accrue an entitlement to annual leave while on paid sick leave. It seems clear that the serious physical assault scheme in issue in this case is, in effect, sick leave. The Court cannot see any reasonable basis upon which leave under the serious physical assault scheme should be treated differently from the general sick pay scheme. Furthermore the uncontested evidence before the Court is that the scheme is operated in the way argued for by the Union.
In these circumstances the Court decides that the Union's claim should be conceded. the appeal is allowed and the Rights Commissioners recommendation is varied accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
4th April 2011______________________
AHChairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.