FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 32, INDUSTRIAL RELATIONS ACT, 1946 PARTIES : NEW LOOK RETAILERS LTD - AND - MANDATE DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Alleged breach of the Registered Employment Agreement (Dublin & Dun Laoghaire Drapery, Footwear And Allied Trades) Variation Order, 2006.
BACKGROUND:
2. The Union made a complaint to the Labour Court, on 26 October 2011, that the Employer is in breach of the above-mentioned Registered Agreement.
DECISION:
This is a complaint by the Mandate, O’Lehane House, 9 Cavendish Row, Dublin 1 (“the Union) alleging a breach of the Dublin and Dun Laoghaire Drapery, Footwear and Allied Trades Registered Employment Agreement (“the REA”) by New Look Retailers (Ireland) Limited, New Look, Liffey Valley Shopping Centre, Dublin 22 with registered address at 3 Burlington Road, Dublin 4 (“the Company”) made pursuant to section 32 of the Industrial Relations Act 1946, as amended.
The Union's Case
The Union stated that the Company is in breach of Section 9 of the REA in failing to provide Ms Mary Andrews, 31 Corbally Avenue, Saggart, Co. Dublin with sick pay scheme in respect of the period of her absence from 11thJuly until 30thJuly 2011 in accordance with the terms of the REA. Ms Andrews commenced employment with the Company in 2006.
The Union stated that the Company’s sick pay scheme provides: -
- 'The sick pay year runs from January,to December, regardless of an individual's service year. These sick pay provisions are only intended to apply to "odd days" sickness, not exceeding 2 days at a time.If you are sick for 3 days or more consecutive days, then you will get a medical certificate and claim state benefit. Sick pay entitlement not used during the year cannot be carried forward and is lost. The exception to this is for employees with five years continuous service, who can claim any unused sick pay entitlement from the previous two years, for one period of two days consecutive absence'.
The Union submitted that in accordance with the REA sick pay is normally paid from day one of the absence, with no waiting days attached. Furthermore, there is no allowance for any company to stop sick-pay
for absences of more than two days, as in the present case.The Company failed in their obligations to pay Ms Andrews her sick pay entitlement inaccordance with the provisions set out under Clause 9 of theREAwhich statesthe following;
- '9. SICK PAY PROVISIONS
(a) Employees entering into the employment of the Employer after 29th August 2003 will have entitlement to sick pay as follows:
There will be no entitlement to pay for any employee in the first twelve months of employment.
On attainment of twelve months service, employees covered by this Agreement who are absent from work due to illness shall receive in respect of such day’s absence, payment equal to one day’s pay, subject to a maximum of:
Eight days where service attained is between 12 months and 18 months.
Twelve days where service attained is in excess of 18 months
Part-time employees will be entitled to the benefit as outlined above on a pro-rata basis.
(b) Payment will be reduced by the amount equivalent to the amount that is received by such employees by way of disability benefit. A doctor’s certificate must be produced on the fourth consecutive day of absence.
(c) Employees with five years continuous employment with the same employer may claim in respect of any one period of continuous illness the unused sick leave entitlement of the previous two eligible years as set out in Clause (a).
(d) Paragraphs (b) and (c) above apply to employees in both category (a.1) and (a.2) above'.
Further, the Union submitted that the Company was also in breach of REA’s provision which provides for an extended sick pay allowance to apply carried over from the previous twoyears, where an employee has five years continuous service with the same employer. The Company policy states that"employees with five years continuous service can claim any unused sick pay entitlement from the previous two years for one period of two days consecutive absence".The Union held that this was an inaccurateinterpretation of the statutory provision. It submitted that the allowance to carry forward unused sick leave entitlement from the previous two years was designedto reward employees for their length of service and assist employees financially where they had a longer term absences of more than twelve days.
Ms Andrews, who has had more than five years’ service with the Company, confirmed for the Court that she had had no absences in 2010 and consequently was entitled to “claim in respect of anyone period of continuous illness, the unused sick leave entitlement of the previous two eligible years”in accordance with the provisions of the REA. The Union submitted that Ms Andrew was entitled to an outstanding payment of €195.50 in respect of the period from 11th– 30thJuly 2011, and sought a Court Order in that amount.
The Company’s Case
By correspondence dated 23rdNovember 2011 the Company, represented by Eugene F. Collins Solicitors, notified the Court of its intention to defend the Union’s claim; however no one appeared before the Court to put forward the Company’s position.
The Court’s Findings
Having reviewed the terms of Clause 9 of the REA, the Court is not satisfied that that the Company’s sick pay scheme is in compliance with the terms of Clause 9 of the Registered Agreement in all respects.
The Court finds that the Company’s sick pay scheme is in breach of the Registered Agreement in only allowing payment for up to twodays absence at a timeand in restricting unused sick pay entitlement from the previous two years, for those employees with five years continuous service, to one period of two days consecutive absence.
Accordingly, the Court orders the Company to amend its sick pay scheme to reflect the benefits as provided for by the Registered Agreement.
The Court, by virtue of the powers conferred on it by Section 32 of the Industrial Relations Act, 1946 hereby directs New Look Retailers (Ireland) Limited to comply with the Employment Agreement as varied and to ensure that its Sick Pay Scheme shall be in conformity with the terms of the Agreement by taking the actions outlined above. The Court also directs New Look Retailers (Ireland) Limited to pay Ms Andrews the sum of €195.50 in respect of outstanding sick pay due in accordance with the provision of Clause 9 of the REA.
Signed on behalf of the Labour Court
Caroline Jenkinson
15th May, 2012______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Colm O'Flaherty, Court Secretary.