AD1578

SUBJECT:
1. Appeal of Rights Commissioner Recommendation No: r-147905-Ir-14/JOC


BACKGROUND:

2. This is an appeal by the employer of Rights Commissioner Recommendation No: r-147905-Ir-14/JOC. The issue concerns a claim for the regularisation of working hours and compensation in relation to loss of entitlements while on sick leave. The Union's position is that the worker continually worked hours in excess of her contractual hours which should have been regularised as requested by her. It is also seeking retrospective changes to the workers sick leave entitlements based on the actual hours worked and not the contractual hours prior to going on sick leave. Management accepts that the additional hours were worked continuously over a long period of time but were worked across many different areas of the service. It contends that it is unable to regularise the additional hours that were worked on the basis that no vacancies exist in any one area for the number of hours sought.

The matter was referred to a Rights Commissioner for investigation. A Recommendation issued on the 10th July 2015. The Rights Commissioner recommended that the worker's contractual hours be banded between 30-35 hours per week and her sick leave entitlements be amended accordingly.

On the 21st August 2015 the employer appealed the Rights Commissioner's Recommendation in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 20th October 2015


EMPLOYER'S ARGUMENT:

3 1 The Employer acknowledges the additional hours were continuously worked by the worker over a long period of time. However, the worker was aware that the additional hours were on an ad-hoc basis and were worked across many different areas on the service. Management are unable to regularise the additional hours sought as no suitable vacancy exists. The issue concerning the sick leave entitlements will be addressed and resolved.

UNION'S ARGUMENT:

4 1 The worker raised this issue repeatedly with management in relation to the regularisation of the additional hours and subsequently the reduced level of sick leave entitlements. The Department of Health Flexible Hours Agreement of 2001, which remains in operation, provides for the regularisation of such additional hours. The worker's claim to be given a contract for the total number of hours worked over such a long period is reasonable in all the circumstances and should be conceded.

DECISION:

The Court accepts that there are practical impediments to the full implementation of the Rights Commissioner’s recommendation at this time.

It is accepted that the employer is prepared to facilitate the Claimant with additional hours as they become available. In the Court’s opinion the employer should commit in principle to restoring the Claimant historic working pattern as the opportunity to do so becomes available. When that objective is achieved (in whole or in part) the parties should enter into discussions with a view to adjusting the Claimant’s contractual hours to reflect the reality of her work commitment.

It is further noted that the employer is prepared to adjust the Claimant’s sick pay entitlements to reflect the additional hours that she worked before going on sick leave.

The Rights Commissioner’s recommendation is amended in terms of this decision.

Signed on behalf of the Labour Court



Kevin Duffy
10th November 2015______________________
AHChairman



NOTE

Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.