FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : OTIS ELEVATOR IRELAND LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY TECHNICAL, ENGINEERING AND ELECTRICAL UNION) DIVISION : Chairman: Mr Hayes Employer Member: Ms Doyle Worker Member: Ms Ni Mhurchu |
1. Appeal Of Recommendation Of A Rights Commissioner R-092261-Ir-10
BACKGROUND:
2. The issue before the Court concerns an appeal of a Rights Commissioner's Recommendation No. R-092261-IR-10 by the Union on behalf of its member. The worker concerned began his employment with the Company in January, 1980 with responsibilities for the service and maintenance of lifts. Due to an injury, the worker commenced sick leave in October, 2009. He received nine weeks paid sick leave in 2009 as per his entitlement under the Company Sick pay scheme as defined in the Company/Union Agreement of 2006. He continued to be absent on sick leave into 2010 but did not receive any further sick pay. It is the Union's contention that the worker is also entitled to nine weeks paid sick leave in the calendar year of 2010 commencing on the 1st January, 2010. The Company's position is that the sick pay scheme's objective is to compensate for loss of earnings for up to nine weeks of a period of absence and that a worker must return to work before they can have a further entitlement to sick pay.
The matter was referred to a Rights Commissioner for investigation and recommendation. The Rights Commissioner issued her Recommendation on the 4th April 2011 as follows:
"The Agreement of 2006 and its appendices is an agreement between the Company Otis Ireland Ltd and the TEEU. The Agreement and its appendix are registered in the Register of Employment Agreements by the Labour Court, under Section 27 of the Industrial Relations Act, 1946. Section 19 of the Agreement provides for a review every five years. This review is scheduled to take place in 2011 provided written notification is given.
Accordingly the presentation of an individual complaint to the Rights Commission Service is not the appropriate vehicle to deal with an interpretation of this agreement. Accordingly I do not find for the Claimant."
On the 9th May, 2011, the Worker appealed the Rights Commissioner's 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 13th September 2011.
UNION'S ARGUMENTS:
3. 1 The Company failed to honour its commitments under the Company/Union agreement by not implementing his 9 weeks sick pay due to him from January 2010. He is entitled to these nine weeks as per the meaning of the key sentences under Section 11.1 of the Agreement.
2 It is not stated in the Agreement that a worker must return to work before receiving any further sick pay entitlement following the exhaustion of a nine week period in one calendar year.
COMPANY'S ARGUMENTS:
4. 1 The sick leave year begins on 1st January each year. This does not provide for nine weeks sick leave to be taken every year. The objective of the sick leave scheme is to compensate for loss of earnings for up to nine weeks of a period of absence.
2 Custom and practice within the Company clearly suggests that since the introduction of the Agreement, it has always been required that an employee return to work first before they have any further entitlement to sick pay.
DECISION:
The Court has carefully considered the submissions of both parties in this case. The matter falls to be dealt with under Section 13(9) of the 1990 Act. The Court notes it was not referred under Section 33(1) of the 1946 Act.
Observations of the Court
Prolonged periods of illness can give rise to intense feelings of both personal and financial insecurity and consequently the Court takes the view that workers are entitled to know with certainty their entitlements under the terms of any sick pay scheme in operation in their employment. The sick pay scheme in this case is so drafted as to make such certainty impossible where a continuous period of sickness straddles two calendar years. The Court accordingly recommends that the parties redraft the wording of the scheme to more accurately reflect their true intentions so as to enable sick workers understand precisely their entitlements during such periods of prolonged illness.
Decision
With regard to the issue specific appeal before it, the Court finds that the appellant voluntarily terminated his employment on the basis of an agreed severance package. The Court takes the view that, in keeping with normal industrial relations practice, all outstanding industrial claims in process were compromised between the parties as part of the severance settlement. The Court finds no grounds for departing from that practice in this case.
Accordingly the Court rejects the appeal and decides accordingly.
Signed on behalf of the Labour Court
Brendan Hayes
10th October, 2011______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to David P Noonan, Court Secretary.