FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEALTH SERVICE EXECUTIVE - SOUTH - AND - A WORKER (REPRESENTED BY INMO) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Recommendation ir-101666/10/MR
BACKGROUND:
2. The Claimant was a permanent Public Health Nurse in the North Lee area of Co. Cork In 2008 whilst attending a patient she suffered an injury at work and was forced to go on sick leave until December of the same year. On the advice of the Occupational Health Department she embarked on a reduced working week engaged in light duties in the Eye Clinic. The Claimant is seeking to recoup monies that she lost due to what she claims to have been an administrative error by Management. Management have denied the claim on the basis that the move to a three day week was at the behest of the Claimant.
The issue involves a claim by a Worker. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 25th January, 2012 the Rights Commissioner issued his Recommendation as follows:
"I also note that the Claimant returned to work on an agreed basis in December 2008, working initially 2 days per week and with a change of work location. Given that this agreed basis had been under discussion for some time and that it followed the submission by the Claimant some months previously of a formal request to decrease her working hours to 3 days per week, I have concluded that it would not be reasonable for me to recommend any concession on this claim.... this claim fails."
On the 1st February, 2012 the Worker appealed the Rights Commissioners 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 1st March, 2013.
UNION'S ARGUMENTS:
3. 1. The Worker was wrongfully compelled by management to sign an application for a reduction in hours in order to accommodate her return to work after a period of sick leave in 2008.
2. The Worker expressed her willingness to return to work, Management could have devised a scheme to allow a phased return to work while gradually increasing the number of working hours over a reasonable period of time.
MANAGEMENT'S ARGUMENTS:
4. 1. The Claimant was fully supported during her period of sick leave and in facilitating a return to work in the post of Public Health Nurse including her placement in a clinic setting.
2. Management is satisfied that the provisions of the nationally agreed sick leave scheme had been implemented in full and that the claimant had no been treated less favourably than any other staff member.
DECISION:
This is an appeal by the Claimant of a Rights Commissioner’s Recommendation which found against the Claimant’s claim for sick-pay on her return to a shorter working week, having been on sick leave from May to December 2008. This situation occurred when the Claimant returned to work in December 2008 on a two day per week basis, having previously worked on a four day per week basis. The Union’s claim was that on her return, rather than be accommodated with a rehabilitative return, HSE Management had required the Claimant to complete a flexi-time form in order to be entitled to avail of the shorter working week. The Union argued that HSE Management was in breach of the terms of Circular 10/71 governing sick-pay and it sought retrospection and compensation for the breach.
HSE Management disputed the contention stating that it had fully honoured the terms of its sick-pay scheme. It stated that the issue had been discussed with the Claimant following an Occupational Health Physician’s recommendation that she should return to part-time work. Management stated that it agreed to facilitate the Claimant through the utilisation of annual leave and a reduced working week under the flexible working time arrangement scheme.
Having considered all aspects of the appeal of the Rights Commissioner's Recommendation, the Court concurs with the findings and Recommendation of the Right’s Commissioner and upholds his Recommendation.
Accordingly, the Claimant’s appeal is dismissed.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
27th March, 2013______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.