FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : UNITED DRUG IRISH BUSINESS AND EMPLOYERS' CONFEDERATION - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Ms O'Donnell |
1. Appeal of Rights Commissioner's Recommendation R-155116-IR/JOC
BACKGROUND:
2. The case before the Court concerns the Worker's appeal of Rights Commissioner's Recommendation R-155116-IR/JOC. It is the Worker's claim that he was treated in an inequitable manner by his Employer as a result of his exclusion from the Employer's sick pay scheme following a road traffic accident not related to the workplace. The Employer rejects the Worker's claim, arguing that in line with its sick pay policy it exercised its discretion and took the decision to not apply the sick pay scheme to the Worker. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 29th September 2015, the Rights Commissioner issued his recommendation as follows:
"I find that management has the right to use its own discretion when paying an employee on the sick pay scheme.
I find that the claimant did suffer an injury outside of the workplace which is clearly only covered under the scheme at the discretion of the management.
Based on the evidence as submitted I'm making the following recommendation:
I am upholding of the respondents position".
UNION'S ARGUMENTS:
3. 1. The Union contends that the sick pay scheme should have been applied to the Worker for the full duration of his absence period.
2. The Union asserts that accidents outside of the workplace other than those stipulated in the policy must be covered by the sick pay scheme.
3. The Union on behalf of its member is seeking compensation for the underpayment of sick pay and furthermore for the loss of pay as a result of attendance at Industrial Relations proceedings.
EMPLOYER'S ARGUMENTS:
4. 1. The Employer contends that is not custom and practice to apply its sick pay scheme to employees injured through accidents outside of the workplace.
2. The Employer maintains that it exercised its discretion when taking the decision to remove the Worker from the sick pay scheme.
3. The Employer asserts that it acted appropriately and in line with its own policies at all times.
RECOMMENDATION:
In this case the Court has, in effect, been called upon to interpret a provision in the Company’s Employee Handbook in relation to the granting of paid sick leave. The provision in question was agreed between the parties and it is accepted that it is incorporated in the Claimant’s conditions of employment.
The provision in issue provides as follows: -
- “The scheme is intended to assist employees where genuine illness occurs.
However, absence caused by injury outside of work will not be covered by the scheme such as hazardous or sporting injuries, self-inflicted injuries, cosmetic surgery and alcohol or substance abuse related absences will not be covered by the scheme. Normal insurance exclusions will apply, however under extenuating circumstances the company may cover an employee on the sick pay scheme at the discretion of management and on an individual case by case basis”
In interpreting the provision at issue the Court has employed the normal principle of construction that where general words used in an exclusion (in this case “absence caused by injury outside of work will not be covered by the scheme)are followed by particular words (in this case “such as hazardous or sporting injuries, self-inflicted injuries, cosmetic surgery and alcohol or substance abuse related absences”)the particularwords limit and explain the general words.
On that basis the Court is satisfied that when read as a whole the passage in issue excludes from the scope of the scheme absences caused by injury outside work of a broadly similar nature to those referred to in the examples given, that is to say, from hazardous or sporting injuries, self-inflicted injuries, cosmetic surgery and alcohol or substance abuse related absences. The injuries suffered by the Claimant do not come within this type of category.
The Court was also informed that the passage in dispute was drafted by the company. In drafting and putting forward this passage the company had a responsibility to express its intentions clearly. In these circumstances, and where the words used are capable of more than one viable interpretation, any ambiguity in the language used should be resolved in favour of the other party.
It is the decision of the Court that the Claimant should be paid in respect of the absence in dispute in accordance with the terms of the sick pay scheme.
Signed on behalf of the Labour Court
Kevin Duffy
11th January 2016______________________
SCChairman
NOTE
Enquiries concerning this Recommendation should be addressed to Sharon Cahill, Court Secretary.