FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : FOCUS IRELAND (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Recommendation r-111494-ir-11/EH.
BACKGROUND:
2. This dispute arose from the Worker’s alleged entitlement to sick pay in excess of the four weeks’ sick pay which she was entitled to receive in a given year. This matter was referred to a Rights Commissioner for investigation and recommendation. On the 6th December, 2011 the Rights Commissioner issued the following Recommendation:-
- “ I recommend that a contribution of €1,750 should be made to (the Worker) in full and final settlement of this dispute.”
On the 12th January, 2012 the Employer 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 17th April, 2012.
3. 1.In advance of hospitalisation for a major medical procedure the Worker informed the Employer that she could be out for longer than the weeks for which she would ordinarily be entitled to paid sick leave.
2.A financial sponsor of the Worker’s employment agreed to continue to fund the Worker's position during her absence and informed the Employer’s Financial Director of this.
3.The Worker believed that she would be paid for the duration of her absence as the Employer’s sick pay policy provided for flexibility in its treatment of Workers.
EMPLOYER'S ARGUMENTS:
4. 1.The Employer strove to show fairness to all staff in its pay policy even if another entity was willing to fund part of the Worker’s post for weeks beyond those set out in the Employer’s own policy.
2.Other staff members could allege unfair treatment in favour of a manager or even gender discrimination if the Employer were to diverge from its own policy for the Worker especially as flexibility had only been shown towards low-paid Workers.
3.The Worker did not invoke the Employer’s grievance procedure in furtherance of her complaint.
DECISION:
This is an appeal by the Employer of a Rights Commissioner’s Recommendation which found in favour of the Claimant and in the unique circumstances of the case recommended that a contribution of €1,750 should be paid to her in full and final settlement. The dispute concerned the Organisation’s application of sick pay to the Claimant for the period of her absence in excess of the four weeks’ sick pay provided under the terms of the policy.
IBEC on behalf of Management submitted to the Court that the Rights Commissioner’s Recommendation could set a dangerous precedent in the organisation and provided details for the Court of sick absences in the past two years where there were no incidents of payments in excess of the terms of the scheme applied to any member of staff.
The Union, on behalf of the Claimant, submitted that the Claimant had a reasonable expectation of payment beyond the four weeks provided following a meeting she had with the Director of Finance prior to taking the sick leave. At that meeting the Claimant informed the Director that the funding authority for her position was prepared to fund her position for the period of her sick absences (approximately 6 weeks) and that the Director had told her to take as much time as she needed to return to work.
The organisation’s sick pay policy applicable at the relevant time contained a provision relating to“consideration for payment beyond the maximum allowable, i.e. 4 weeks, will be solely at the discretion of the Agency and must be signed off by a Director…”This aspect of the policy states that“payment for sick absence in this case will not be considered as setting a precedent”.The Union submitted that such a situation had occurred in the past and cited a recent case where payment had been made in excess of the four weeks. Management stated that such cases were very rare and only applied to low paid categories in exceptional circumstances and in the recent case referred to payment had been made in error.
The Court was informed that the sick pay policy has since been amended, and the discretionary clause has been excluded from the scheme.
In all the circumstances of this case the Court is satisfied that following the meeting with the Director of Finance it was reasonable for the Claimant to hold the view that the discretionary provision which applied in the scheme at that time would be applied in her case and accordingly concurs with the findings of the Rights Commissioner and upholds his Recommendation. The employer’s appeal fails.
The Court notes that the normal industrial relations procedures were not adhered to in this case and the claim was referred directly to the Rights Commissioner without the Union availing of the opportunity to engage in local discussions before considering such a referral, which was contrary to the existing grievance procedure.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
8th May, 2012______________________
COFDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Colm O'Flaherty, Court Secretary.