FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : UNITED DRUG (WHOLESALE) LTD - AND - A WORKER DIVISION : Chairman: Mr Haugh Employer Member: Ms Cryan Worker Member: Ms O'Donnell |
1. Appeal Of Rights Commissioner Recommendation No R-157693-IR-15/EH.
BACKGROUND:
2. This dispute concerns the Worker's claim that he was not paid his full sick pay entitlement under the Employer's Sick Pay Scheme Policy. This dispute was referred to a Rights Commissioner for investigation and recommendation. On the 14th January, 2016 the Rights Commissioner issued the following Recommendation:-
- "I recommend that this claim should fail."
On the 17th February, 2016 the Employee 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 30th of March, 2016.
UNION'S ARGUMENTS:
3. 1. The Worker received payment in 2013 as per the rules of the Sick Pay Policy, therefore should be entitled to receive it for 2014.
2. If the 2013 payment was made in error, the Employer had numerous opportunities to notify the Worker of the error. However they did not mention the error until the Worker decided to lodge the claim to the Rights Commissioner in July 2015.
EMPLOYER'S ARGUMENTS:
4. 1. Under the Sick Pay Scheme it clearly states that no benefit will be available for absence due to injury at work resulting from a deliberate failure to observe the safety practices, procedures or customs and practice within the company. The Worker has admitted that he decided to not use a ladder, which led to his injury.
2. The payment for 2013 was provided to the Worker in error. The Worker should not have been entitled to any form of payment for the accident.
DECISION:
This is the Worker’s (hereafter ‘the Appellant’) appeal from a recommendation of the Rights Commissioner dated 14 January 2016. The notice of appeal was received by the Court on 17 February 2016. A hearing of the Court took place on 30 March 2016.
The subject of the dispute relates to a claim for sick pay under the Respondent’s sick pay scheme. This scheme provides for a graduated entitlement to paid sick leave based on a worker’s length of service with the employer, subject to certain conditions. The Appellant had accrued almost 12 years’ continuous service at the time that his sick leave commenced. Accordingly, he could have benefitted from up to 10 working weeks paid sick leave “in any one year” under the scheme in circumstances where he met the relevant qualifying criteria.
Facts
The Appellant has been employed as a warehouse operative at the Respondent’s facility in Citywest, Dublin 24 since 4 February 2002. It is accepted that he has completed extensive health and safety/manual handling training relevant to his job. Nevertheless, by his own admission, on 23 October 2013 he failed to use a ladder when attempting to access a box on a high shelf. Instead, he stood on a protection barrier at the base of an upright pillar to gain access. He fell backwards when doing so and caused an injury to his knee which necessitated hospital treatment and surgery. He remained on certified sick leave until 31 October 2014.
The Appellant received payment under the Respondent’s sick pay scheme for the period 1 November 2013 to 3 January 2014. Although he continued to be on certified sick leave, the payments under the sick pay scheme were discontinued at that point. He received no further payment under the scheme in respect of his absence in 2014.
Although the Appellant returned to work on 3 November 2014, he delayed until 16 July 2015 to raise a formal grievance via his Union in relation to the fact that he had not received any payment under the Respondent’s sick pay scheme in respect of the period 4 January 2014 to 31 October 2014. The grievance was not upheld. The panel which heard it found that – having regard to paragraph 4.3 of the Respondent’s sick pay scheme - the Appellant should not have been paid any sick pay at all as the accident that resulted in his prolonged absence from work was due to his own negligence. In the course of the grievance the Appellant made an express admission that he had made “a bad error of judgement” when he failed to locate and use a ladder to gain access to an item on the shelves.
The Respondent’s sick pay scheme, at paragraph 4.3 provides:
- “No benefit will be payable for absence due to injury at work resulting from the deliberate failure to observe the safety practices, procedures or custom and practice within the company.”
- “Finally, you believe you acted in line with the sick pay policy and therefore you should have been paid for your absence. The appeal panel finds as follows. We, the panel believe that you should never have been paid for any period of absence which was caused by your own actions.
Your injury was caused as a result of you not observing good practices and deliberately failing to observe safety practices in the Warehouse. Your payment in 2013 was done so in error. It wasn’t done as a gesture of goodwill or at the discretion of your manager.”
Union Submission to the Court
The nub of the Union’s submission to the Court is that the fact that the Respondent paid sick pay to the Appellant in 2013 amounts to an acceptance on the Respondent’s part that the Appellant was eligible for sick pay under the scheme and that he should have, therefore, continued to benefit under the scheme in 2014. The Union calculates the amount due to the Appellant as €2,958.70.
The Respondent’s Submission to the Court
The Respondent relies principally on clause 4.3 of the sick pay scheme, quoted above. It submits that the Appellant had no entitlement to receive payment under the scheme in circumstances where the injury that necessitated his absence from work was caused by his own negligence and failure to adhere to established health and safety procedures. The Respondent is not seeking repayment of the payment made to the Appellant in error in 2013.
Recommendation
Having considered the parties detailed written and verbal submissions, the Court can find no basis on which to disturb the Rights Commissioner’s recommendation. That recommendation stands and the appeal fails.
The Court so recommends.
Signed on behalf of the Labour Court
Alan Haugh
1st April 2016______________________
JKDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jason Kennedy, Court Secretary.