LCR22538

FULL RECOMMENDATION

SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969

PARTIES :

IRISH RAIL

- AND -

A WORKER
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)

DIVISION :

SUBJECT:

1.Appeal of Adjudication Officer Decision No(s) ADJ-00032443 CA-00042963-002.

BACKGROUND:

2.This dispute concerns the Worker's claim that his terms and conditions were eroded and the allocation of a new role which is he believes is unsuitable.This dispute was referred to the Workplace Relations Commissioner for investigation and recommendation. On 26 July 2021 the Adjudication Officerdecided that the claim was not well founded.

On 2 September 2021, the Employee appealed the Adjudication Officer’s Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969.

A Labour Court hearing took place in a virtual setting on 14 January 2022.

DECISION:

The matter before the Court is an appeal of an Adjudication Officer’s decision in a claim by the worker that during a period of illness of six months in 2019 / 2020 he should have received ‘average pay’. He contends that his illness was related to an accident at work and that, in accordance with the arrangements in place in the employment, the Director of HR should have exercised his or her discretion to award him average pay during his absence. He contends that the reason he did not receive average pay was that the CMO failed to attend a monthly meeting to explain how his injury was work related.

The employer submits that where an employee is injured in a workplace related accident the payment of average earnings is only approved by the Director of HR following consideration of the advice of the CMO and a review of all available evidence. In all other cases the worker is paid another form of sick pay in accordance with the agreements in place in the employment and this is what happened to this worker. In the case of this worker the Director of HR did not exercise his or her discretion to award average pay because the CMO concluded that his injury could not be attributed to a specific accident in the workplace.

The Court notes the parties’ acceptance at the hearing that the award of average pay is a discretionary decision of the Director of HR. The Court also notes the employer’s submission that the CMO did give advice on this matter and that this advice did not support the contention that the worker’s absence could be attributed to a specific workplace accident.

In all of the circumstances of the operation of the scheme, the Court concludes that it has not been provided with a basis to recommend that the decision of the Director of HR should be set aside. The Court therefore does not recommend concession of the worker’s claim.

The Court so decides.

NOTE

Enquiries concerning this Decision should be addressed to Therese Hickey, Court Secretary.