FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : WORK ACCESS LIMITED (REPRESENTED BY O'MALLEY & SEXTON SOLICITORS) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner Recommendation No: r-89242-ir/10/MR
BACKGROUND:
2. This case concerns an appeal by the Union of Rights Commissioner Recommendation No: r-89242-ir/10/MR. The issue relates to the Sick Pay policy of the employer and the worker's entitlement to the provisions of the policy. The worker had a prolonged period of sick leave in 2007 and a subsequent Rights Commissioner's Recommendation (r-70474/08/MR) recommended that future periods of sick leave would be viewed sympathetically by the employer if the difficulties in qualifying for payments under the sick pay policy occurred as a result of the absence that occurred in 2007. The worker has had subsequent sick leave absences and her entitlement to paid sick leave under the policy has ceased. Management contends that it assisted the worker in mitigating her loss of earnings while absent on sick leave by allowing her to take 8 days paid annual leave instead. It furhter contends that it does not have and cannot seek additional funding to resolve the dispute The Union is seeking that the Rights Commissioner's Recomendation be implemented or that the 8 days annual leave be returned to the worker.
Ths issue was referred to a Rights Commissioner for investigation. His Recommendation issued on the 14th September, 2010 and recommended that the parties commit themselves to accepting the terms of the earlier recommendation and that management continue to make available all previous options offered to the worker with regard to working back hours not worked. The Rights Commissioner also recommended that the workers record remain as recorded and that the worker be paid €1,000 as a good will gesture and in recognition of her attempt to comply with her contractual responsibilities. The Recommendation was to be accepted by both parteis as in full and final settlement of the issues in dispute.
On the 19th October 2010, the Union 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 16th November, 2011 the earliest date suitable to the parties.
UNION'S ARGUMENTS:
3. 1. Management has not acted in good faith or in line with the spirit of the previous Rights Commissioner's recommendation. The worker was not paid for sick leave but was allowed to use annual leave instead. This should not have been done as it is a clear breach of the Organisation of Working Time Act,1997.
2. The worker made every effort to comply with her contractual responsibilities at a time of great personal difficulties. This was recognised by the Rights Commissioner in his recommendation. Management is well aware of this but has chosen not to accept the Recommendations of the Rights Commissioner, which in the circumstances is totally unacceptable
MANAGEMENT'S ARGUMENTS:
4 1 Management made every effort to assist the worker while on sick leave. The worker was given her options of working back the hours or taking annual leave to help ameliorate the financial loss of unpaid sick leave.
2 The organisation is FÁS funded and any changes to terms and conditions of employment need approval which in the current economic climate will not be forthcoming.
DECISION:
Having considered the submissions of the parties the Court can see no basis upon which it could allow the Union's appeal.
Accordingly the appeal is disallowed and the recommendation of the Right's Commissioner is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
30th November 2011______________________
AHChairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.