FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : HSE WEST (REPRESENTED BY HSE) - AND - FIONA DERMODY (REPRESENTED BY IRISH NURSES ORGAINISATION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Appeal against a Rights Commissioner's Decision R-079080-Wt-09/POB
BACKGROUND:
2. The issue before the Court concerns an appeal of a Rights Commissioner's Decision No. R-079080-WT-09/POB. It is the Unions claim that Employer is in breach of the Organisation of Working Time Act, 1997 by not allowing its member to benefit in respect of 3 public holidays from December, 2008 to January, 2008 when she was absent from work on certified sick leave. The Employer's position is that it acted in accordance with Section 21(1) of the Act.
The Rights Commissioner's decision issued on 10th November, 2009, in which he found in favour of the Worker.
The Employer appealed the Rights Commissioner's decision to the Labour Court on the 20th November, 2009, in accordance with Section 28(1) of the Organisation of Working time Act, 1997.
A Labour Court hearing took place on the 29th March, 2011.
DETERMINATION:
Background
This is an appeal by the HSE West against the Decision of a Rights Commissioner in a claim by INMO, on behalf of Ms Fiona Dermody alleging a contravention of s.21 of the Organisation of Working Time Act 1997 (the Act) by the HSE in relation to the granting of a benefit in respect to Public Holidays.
In this Determination Ms Dermody is referred to as the Claimant and the HSE is referred to as the Respondent.
Facts
The facts of this case is similar to those of a number of other cases considered by the Court concerning the granting of a day off with pay in respect to a Public Holiday where the employee concerned is on sick-leave at the time the Public Holiday occurs (see Determination DWT0611 Thermo King and Pat Kenny, Determination DWT0884, HSE West and Alison Meehan and Determination DWT0914, Leitrim County Council and Alan Martin).
The Claimant is a nurse employed by the Respondent at the Mid Western Regional Hospital in Limerick. She was on certified sick leave from 23rd December 2008 until 4th January 2009. Under the Respondent’s sick pay scheme she was entitled to her full pay while so absent from work. During this period of absence three public holidays occurred, namely Christmas Day, St Stephens Day and New Years Day. The payment which the Claimant received in respect of these Public Holidays was treated by the Respondent as discharging its obligation under s.21 of the Act and those days were not offset against her total entitlement to sick pay under the scheme.
The Court was told that following the Determination of the Court in Thermo King and Pat Kenny a circular issued from the HES- EA advising that where an employee is absent on sick leave on a day which is a public holiday payment for the day should not be deducted from the employee's total entitlement to sick leave. In pursuance of that instruction the Respondent paid the Claimant for the days in issue and treated those payments as discharging its statutory obligation to afford her a paid day off on each of the days in question.
The INMO referred a complaint to a Rights Commissioner alleging that the Respondent had contravened s.21 of the Act in the manner in which it purported to fulfil its obligation under that section. The Rights Commissioner found for the Claimant. the Respondent appealed against that finding to this Court.
Position of the Parties
The Respondent contends that it was entitled to choose the mode of compliance with s.21 of the Act by affording the Claimant one of the benefits specified in subsection (1) of that Section, which includes a paid day off on the day in which a public holiday occurs. The days in question were not recorded as days of sick leave and on that basis the Respondent contends that the case can be distinguished from that decided by the Court in Thermo King. The Respondent further submitted that the granting of sick leave under the relevant scheme is discretionary and it is entitled no to grant sick leave on a Public Holiday within the terms of the scheme
The INMO contend that the Claimant had a contractual entitlement to a days pay in respect of every day on which she was certified as unfit for work due to illness. The Union contends that the terms of the sick pay scheme are set out in Circular 10/71 from the then Department of Health and that this Circular expressly provides that every day occurring during a period of absence on sick leave is to be regarded as part of that period. The INMO further submitted that the Claimant is encompassed by the provisions of s.60 of the Health Act 2004. This Section provides that on the establishment of the Respondent employees transferred from the former Health Boards cannot be brought to less favourable conditions of employment other than by a collective agreement concluded with a trade union.
Conclusions of the Court
In the earlier cases previously referred to in this Determination the Court held that The clear import of s.21 of the Ac is that where an employee is contractually entitled to a paid day off on a day which is a public holiday the granting of that day off with pay cannot subsume the employee’s statutory entitlement in respect of the public holiday. It is accepted by the Respondent that the terms of Circular 10/71 are incorporated in the Claimant’s contract of employment. Section 9(iii)(e) of that Circular provides: -
"every day occurring within a continuous period of sick leave shall be reckoned as part of such leave"
The meaning to be ascribed to this provision could not be clearer. The three days in issue in this case were part of a continuous period of sick leave running from 23rd December 2008 until 4th January 2009. In accordance with Section 9(iii)(e) of Circular 10/71 these days must be reckoned as part of the period of sick leave in respect of which the Claimant had a contractual entitlement to her normal pay independent from the provisions of s.21 of the Act. Moreover, the Claimant comes within the ambit of s.60 of the Health Act 2004 and it is not open to the Respondent to change her contractual terms of employment other than by way of a collective agreement.
The Court was told that there are ongoing discussions between the Respondent and the trade unions representing its staff on the on the question of entitlements in respect to Public Holidays occurring during sick leave but that agreement has not yet been reached on that question.
The Court also considered the Respondent’s submission that the granting of sick leave is discretionary under the terms of Circular 10/71. It is accepted that this discretion has only ever been exercised to withhold sick pay for disciplinary or related reasons. It is clear from the scheme as a whole that it was not intended to have any wider application. It is equally clear that the Respondent’s discretion could not be exercised so as to introduce a general departure from the clear provisions of Section 9(iii)(e) of the Circular by excluding certain days, falling within a continuous period of sick leave, from the scope of the scheme.
For all of these reasons the Court is satisfied that the Decision of the Rights Commissioner is correct. Accordingly the appeal is disallowed and the Decision of the Rights Commissioner is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
18th April, 2011______________________
DNChairman
NOTE
Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.