FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DUBLIN CITY COUNCIL - AND - A WORKER (REPRESENTED BY STEPHEN O'CONNOR, B.L., INSTRUCTED BY SEAN COSTELLO & COMPANY SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Recommendation R-119709-IR/12/JT.
BACKGROUND:
2. The case before the Court concerns the Worker's appeal of Rights Commissioner's Recommendation R-119709-IR/12/JT. The dispute relates specifically to the Worker's claim for retrospective application of the Dublin Fire Brigade Accident Sick Pay Scheme which remunerates workers with basic pay and allowances and medical expenses during periods of sick leave as a result of accidents. During a period of time in 2011, the Employer took the decision to disallow the Worker access to the Scheme. It is the Worker's claim that she has been treated in an inequitable manner by her Employer following its refusal to apply the Scheme to her during the period in question. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 8th August, 2012, the Rights Commissioner issued his Recommendation as follows:
"In regard to the non-payment of the ASL, the Respondents are within their rights to make such a decision. I accept their decision in this case as reasonable and fair.
I do not find the Claimant's case in this regard as well founded and it fails".
On the 11th September 2012, 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 11th December, 2012. A further hearing took place on 24th March, 2015.
WORKER'S ARGUMENTS:
3. 1. The Worker suffered a significant financial loss as a result of the Employer's refusal to apply the terms of the Accident Sick Pay Scheme to her.
2. The Worker previously enjoyed the benefits of the Scheme during separate periods of absence from the workplace.
3. It is the Worker's claim that the absence period in question is resulting from the same underlying injury and accordingly the Scheme should be applied to her.
EMPLOYER'S ARGUMENTS:
4. 1. The Employer contends that the Scheme is a benefit and is not a contractual entitlement.
2. The Employer maintains that every individual case is assessed on its own merits. In this instance the Employer took the decision not to extend the Scheme to the Worker.
3. The Employer asserts that the Worker was treated fairly and equitably throughout her absences from the workplace.
DECISION:
Preliminary Issue
Management sought an adjournment of the hearing of the appeal when it came up for hearing before the Court in 2012 on the basis that the Claimant was also pursuing a personal injuries claim before the Personal Injuries Assessment Board. The case was adjourned to allow these proceedings to be completed before the Court could hear the industrial relations case on the claim for monies under the Dublin Fire Brigade Accident Sick Pay Scheme. This adjournment was granted.
A week prior to the reprogrammed hearing due to be heard on 24thMarch 2015, Management again sought an adjournment of the appeal hearing on the basis that it was unsure of the legal status of the personal injuries claim.
Counsel for the Claimant informed the Court that all proceedings initiated before the Personal Injuries Assessment Board had ceased, no claim was pursued as such proceedings were statue barred and therefore confirmed that that matter was at an end. He informed the Court that confirmation of the cessation of the personal injuries proceedings had been confirmed in writing to Management a few days prior to the Court hearing. Management confirmed receipt of this notification and indicated that it no longer required an adjournment.
The Appeal
This is an appeal by an employee against a Rights Commissioner’s Recommendation which found against her claim for Accident Sick Pay and medical expenses under the Dublin Fire Brigade Accident Sick Pay Scheme (the Scheme).
The Claimant has been employed as a Fire Fighter by Dublin Fire Brigade since May 2006. Following an accident at work in 2008, the Claimant received payment of basic pay plus allowances and medical expenses under the Scheme for a number of absences which occurred in the period up to October 2010. The Claimant was deemed fit to return to her duties on two occasions, 9thSeptember 2008 and 25thJune 2010. Management stated that on both occasions when she was assigned to return to her operational duties she had a flare-up of her injuries and accordingly was assigned lighter duties.
The appeal before the Court concerns a claim to be covered by the Scheme for an absence which occurred in the period from 16thJuly 2011 to 18thOctober 2011.
Management stated that due to the Claimant’s absenteeism levels and her inability to provide a regular and efficient service to the Dublin Fire Brigade, it reviewed her entitlement to further benefit under the Scheme and informed her on 7thSeptember 2011 that she would be referred to a Consultant in accordance with its Scheme and, based on the outcome of that medical examination, a decision would be made on the payment of benefit under the Scheme.
Accordingly, the Claimant was medically assessed over two days, 28thand 29thSeptember 2011, a “Functional Capacity Evaluation” was carried out and she was deemed fully fit to carry out all the duties of a Fire Fighter. The Report found that she was fit for the physical demands of her job and was fit to return to full-time regular duties.
The Court notes that the Scheme provides as follows:-
- “All payments as a result of Accident sick [leave] will be paid with immediate effect and reviewed following investigation. Where an investigation deems Accident Sick Pay is not warranted, payment will be recouped. In the event of an appeal, payment of Accident Sick [Pay] will be suspended and any decision on recoupment will be made having regard to the final outcome of the appeal.”
Management received the Consultant’s Report of the Functional Capacity Evaluation on 12thOctober 2011, however, at that point the decision had already been taken not to provide the Claimant with the benefits covered by the Scheme. On that basis the Court finds that Management was in breach of the Scheme as it provides for immediate payment with the possibility of recouping benefits paid in the event that it was not warranted in the first place. The investigation carried out in accordance with the Scheme found that the Claimant who had not worked since 16thJuly 2011 was deemed fully fit to carry out her duties. In those circumstances, the Court is of the view that, based on the results of the assessment and in accordance with the Scheme, Management would have been entitled to recoup any monies paid. Accordingly, the Court finds that the claim is moot.
Therefore, albeit it for different reasons, the Court upholds the Rights Commissioner’s Recommendation and the appeal fails.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
30th March 2015______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.