ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000319

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 19/01/2016

Workplace Relations Commission Adjudication Officer: Ray Flaherty

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

At the Hearing the Complainant was represented by her Trade Union who made the following submission and representation on her behalf:

Background:

The Complainant has been employed as a Home Help by the Respondent since 2001. She has been on sick leave since 2010.

A long-running trade dispute existed between the Complainant's employer and her Trade Union concerning the non-implementation of a 2009 agreement for Home Helps. The most significant issues provided for by that agreement concerned provision of contracts of employment and compensation payments in respect of fluctuations in working hours.

The dispute was eventually resolved with the acceptance by all parties of the Labour Court Recommendations LCR 20312 and 20432. The Respondent accepted that there were enough Home Help hours in the system to ensure that contracts of all Home Helps are met and committed to honouring such contract. The parties agreed that each individual member of the Home Help staff should be guaranteed minimum annualised hours of work, to be assigned on the basis of 80% of the actual hours worked in the six month reference period between 1 October 2011 and 31 March 2012.

Argument:

The Complainant did not work during the six month reference period between 1 October 2011 and 31 March 2012. Nevertheless, she was one of the Home Helps affected by the non-implementation of the 2009 agreement, which dispute, the agreement, reached with the assistance of the Labour Court, was intended to resolve.

The Respondent's position, that the Complainant had not accrued entitlement to compensation, grossly elevates the significance of the reference period for assessment. It is the Complainant's position that there is no particular significance to this six-month period. It was set for the purposes of administrative convenience and clarity, not for the accrual of rights and entitlements.

It was contended by the Complainant's representative that neither parties to the original dispute nor the Labour Court took situations such as the Complainant's into account when reaching agreement. It was also contended that analogous situations, such as maternity during the reference period, were not taken into consideration either. Consequently, it is contended that it would be both unfair and not in accordance with the spirit of the agreement were the Complainant's illness to remove her from the possibility of compensation offered to resolve a dispute which did, after all, concern her.

In conclusion, the Complainant's representative stated that the agreed Labour Court recommendations must be read in the light of common sense and business efficacy.

Based on the above arguments, the Complainant's representative requested a recommendation that the Respondent would make a minimum compensation award of €2000 to the Complainant.

Respondent’s Submission and Presentation:

Introduction:

In response to the contention that the Complainant is being excluded from the application of the aforementioned Labour Court recommendations, the Respondent rejects the assertion that is excluded the Complainant but rather, suggests, that she had not established an entitlement to compensation under the terms of the Labour Court agreement.

Background:

The Respondent set out details in relation to the Complainant's employment, which included that she had commenced her role as a Home Help in January 2001, working 10 hours per week. The Complainant went on sick leave on 5 May 2010 and remains on sick leave to the present day, having exhausted her paid sick leave entitlement on 10 July 2010.

At a meeting with her line manager on 16 May 2013, the Complainant advised that she was still not ready to return to work.

The Respondent also set out in detail the elements of the Labour Court recommendation and, in particular, the binding recommendation set out in the letter of 16 September 2015.. The Respondent also set out details with regard to the compensation schemes available where Home Helps who were impacted by the new arrangements relating to annualised hours decided to opt out of the scheme.

Respondent's Position:

The Respondent stated that as the Complainant had been on sick leave since July 2010 she would not accrue entitlement to compensation as provided for in the above-mentioned Labour Court agreement.

The Respondent further stated that the reference period (1 October 2011 to 31 March 2012), as set down by the Labour Court, was different to the period used for negotiations and, in light of potential implications, it was agreed that, in limited circumstances a different reference period could be used where an employee was on unpaid sick leave within the Labour Court reference period and subsequently resumed duty. However, the Respondent pointed out that as the Complainant had not and, it appeared, will not be returning to work, this additional reference period did not apply.

The Respondent further stated that, notwithstanding the requirement for the Complainant to return to duty in order to determine the most beneficial 26 week work pattern, the Respondent had undertaken a preliminary assessment of the Complainant’s eligibility for compensation based on the 26 week period immediately prior to her period of unpaid sick leave. The Respondent presented the tabulated results of this exercise, which demonstrated that on the basis of the pattern of working hours in the period under assessment, the Complainant's net reduction in working hours did not satisfy the criteria for compensation as prescribed by the Labour Court.

In conclusion, the Respondent stated, that, as the Complainant clearly did not satisfy the criteria for compensation, her claaim in this regard should not be upheld.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Legislation involved and requirements of legislation:

This complaint was taken under Section 13 (3) (a) (i) of the Industrial Relations Act 1969

Decision:

Having carefully considered the detailed presentations made at the Hearing by both the Complainant's Trade Union representative and the Respondent, I am satisfied that the Complainant does not qualify for compensation in this regard as she does not satisfy the criteria laid down in the original Labour Court recommendation nor, indeed, under the additional reference periods considered by the Respondent.

Based on the above, I am satisfied that the Respondent assessed the Complainant's entitlement to compensation in a fair and appropriate manner in line with the terms of the Labour Court recommendation in this regard. Consequently, I find that the Respondent were wholly within their rights in reaching the conclusion that the Complainant had not established an entitlement to compensation.

However, I find there is merit in the position adopted by the Complainant's Trade Union representative that the Complainant was a member of the body of workers whose situation was sought to be rectified by the negotiations between the respective Trade Unions and the Respondent, which was subsequently encapsulated in the Labour Court recommendation in this regard and that, in the spirit of the agreement, she should be included in some way.

Consequently, I am of the view that in equity it would be reasonable that the Complainant might benefit in some way in this regard. Therefore, I recommend that an ex-gratia payment of €850 should be made to the Complainant, on a without prejudice basis, as a final resolution of her dispute with the respondent.

Dated: 14^th March 2016