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2002

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AD0276

FULL RECOMMENDATION

CD/02/442
APPEAL DECISIONNO.AD0276
(IR7478/02/TB)
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969



PARTIES :
MARYFIELD NURSING HOME
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)

- AND -

A WORKER



DIVISION :

Chairman: Ms Jenkinson
Employer Member: Mr Carberry
Worker Member: Mr. Somers
SUBJECT:
1. Appeal against Rights Commissioner's Recommendation IR 7478/02/TB


BACKGROUND:

2. The employee has worked for the nursing home for twenty years. The dispute concerns a claim by the worker that since 1992 her hours of work have reduced and as a result so has her earnings. The worker claims that through an agreement with her then superior in 1992 she gave some of her hours to another employee. These hours were to revert back to her again but never did. The worker alleges that she did not get a fair hearing at the Rights Commissioners due to her ill health.

Management claims that they have no record of any arrangement made to "give back" any hours to the claimant. Her current hours (10 per week) are as agreed and accepted by the worker in April, 200.

The dispute was the subject of a Rights Commissioner's hearing which took place on the 14th June, 2002. The following is the Rights Commissioner's Recommendation:-
  • " The parties agreed that they would try and resolve this issue at local level and I recommend that they do so. All other issues in dispute should be dealt with separately."
WORKER'S ARGUMENTS:

3. 1. In view of the fact that the worker suffered an occupational back injury in1989, management should beable to facilitate the worker in obtaining suitable work without loss of earnings.2. The worker should not experience any further bullying or harassment from management or staff for having taken this stand for her just entitlements.3. All efforts at local level have failed to resolve this dispute. The worker has lost confidence in the local process and asks the Court to bring these matters to a successful resolution.4. The worker believes that she was not given a fair hearing at the Rights Commissioners due to her ill health.



MANAGEMENT'S ARGUMENTS:4. 1. There has been no unilateral reduction in the worker's hours of work. Since she began working in the reception area ten years ago her hours have varied in line with the requirements of management and with her own requests.2. All variations to the worker's attendance and hours of work are as accepted by the claimant in April, 2000.3. There is no record of any arrangement made in 1993 to "give back" any hours to the worker and this was not raised by the claimant prior to September, 2001, or in any of the subsequent discussions about hours of work when changes were agreed.


4. The claimant was given the facility to work up additional hours in the kitchen, an arrangement that suited her for 13 months. Her requests to work additional hours was further facilitated by suggesting that she move to the laundry. However, this was rejected by the claimant.











DECISION:

This is an appeal by the employee against Rights Commissioner recommendation number IR478/02/TB.

The Rights Commissioner in his recommendation stated, "the parties agreed that they would try and resolve this issue at local level and I recommend that they do so. All other issues in dispute should be dealt with separately". This was dated 8th July, 2002. On 12th August, 2002, this recommendation was appealed on the grounds that " the claimant has been ill and hospitalised and we have not had the opportunity to meet and discuss her case. However, she wishes to appeal the recommendation on the grounds that she was not given a fair hearing - due to her ill health and she was not able to make a full contribution to the evidence for her case".

After the lodging of the appeal, discussions took place at local level in accordance with the terms of the recommendation in an effort to resolve the issue. However, since the appeal was properly lodged with the Court, prior to these discussions, the Court in dealing with the appeal must disregard events which took place after the lodging of the appeal. The appeal was on the grounds that the employee was not given a fair hearing and she was not able to make a full contribution to the evidence for her case, due to her ill health.

On this basis, the Rights Commissioner's recommendation does not prevent the employee from making a full contribution in the subsequent local discussions.

Having considered the written and oral submissions made, the Court can see no reason to overturn the decision of the Rights Commissioner that the parties should try and resolve the issue at local level.

Accordingly, the Court upholds the Rights Commissioner's recommendation.










Signed on behalf of the Labour Court



Caroline Jenkinson
14th November, 2002______________________
LW/LWDeputy Chairman



NOTE

Enquiries concerning this Decision should be addressed to Larry Wisely, Court Secretary.




 
 
 
 
 
 
 
 
 

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