FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : LIMERICK CITY COUNCIL - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner Recommendation No: r-089673-ir-10/MH
BACKGROUND:
2. This case concerns an appeal by the worker of Rights Commissioner Recommendation No: r-089673-ir-10/MH. The issue concerns a fire fighter who was absent on sick leave and was accused by a member of management of having been employed elsewhere during a period of such absence. The Union contends that management considered this to be an abuse of the sick pay scheme and sanctioned the worker by removing him from the sick pay scheme. The Union's position is that the accusation was never raised formally in compliance with the disciplinary procedures and that management acted outside of its own procedures by sanctioning the worker without affording him the opportunity to defend the allegation.The Union is seeking an appropriate level of compensation.
Management's position is that it did remove the worker from the sick pay scheme following the accusation that was put forward on the basis that the worker refused to attend for independenat medical assessment at the time. Management futher contends that it recognised its error and has repaid the worker his entitlements under the sick pay scheme but it views the claim for compensation to be wholly inappropriate.
The matter was referred to a Rights Commissioner for investigation. His findings and Recommendation issued on 10th August, 2010 as follows:
"I agree with the claimant that the exercise of managerial discretion must be seen to be reasonable inthe context of this or any other sick pay scheme taking into account management's responsibilityto protect the scheme from abuse.
In discharging that responsibility here management failed to take into account that the claimant had a right to protect his good name (againstthe under lying allegation of abuse of the scheme) and his right to remain a beneficiary ofthe scheme in the absence of such proof.
The matter of his attendance atthe show should have been addressed directly with himand in the absence of satisfactory explanation the matter should have been dealt with in the normal disciplinary way andthen and only then could the matter of his further membership of the scheme be addressed.
Having said that the claimant's refusal to attend for independent medical examination was equally unreasonable in all the circumstances. If he had done so Iwould have viewed his claim for compensation favourably.
I note that management has made good its error and recommend that this should be an end to the matter."
On the 7th September, 2010 the worker appealed the Rights Commissioner's Recommendation in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 22nd June, 2011.
The following is the Court's Decision:
DECISION:
The matter before the Court is an appeal by a worker against a Rights Commissioner’s Recommendation, which found against the worker’s claim that the City Council had incorrectly applied the sick pay scheme to him during his absence in September 2009.
The Union on behalf of the appellant submitted to the Court that while the City Council had made good payments which had been deducted when he was absent on four occasions, it sought compensation for the effects of the employer’s actions on the appellant.
Having considered the submissions of both sides the Court notes that the City Council has amended its approach for the future in order to incorporate an investigation stage into alleged abuses of the sick pay scheme.
In all the circumstances of this case the Court does not accept that there is merit in the appellant’s claim for compensation and accordingly upholds the Rights Commissioner’s Recommendation.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
19th July 2011______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.