INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
EASTERN HEALTH BOARD
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Ms Owens
Employer Member: Mr Pierce
Worker Member: Mr O'Neill
1. Appeal against Rights Commissioner's Recommendation 1179/97 concerning loss of earnings.
2. The worker concerned commenced employment with the Eastern Community Works in February, 1993, as a home care attendant. She resigned in 1994 and was re-employed in January, 1996. She worked approximately 20 hours per week.
In February, 1997, she became ill and was hospitalised. In June, 1997 she was certified fit to return to work. Management referred her for assessment to the Eastern Health Board's Occupational Health Department and it advised that she was fit for light duties. As the worker was not fit to carry out her full range of duties she was not allowed to return to work. Subsequently her sick leave entitlement (12 weeks) expired.
Discussions subsequently took place with a view to arranging suitable employment within the Eastern Health Board. This resulted in a job offer in September, 1997 which was later withdrawn. In November, 1997, a new job offer was made and the worker commenced this employment with the Eastern Health Board in January, 1998.
The dispute before the Court concerns the Union's claim on behalf of the worker for loss of earnings. Management rejects the claim. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 30th of March, 1998 the Rights Commissioner recommended as follows:-
"Full payment of the loss should be made to the worker. Such payment
ought to be made under the terms of the sick pay scheme, or if this is no
longer possible by compensation directly from the employer.
This payment to be made no later than 30th May, 1998."
The worker was named in the recommendation.
The Rights Commissioner's recommendation was appealed by the Board to the Labour Court on the 7th of May, 1998 under Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 26th of June, 1998.
3. 1. During the period when alternative employment was being sought the Board acted unfairly in refusing to extend the worker's sick pay in accordance with the provisions of the scheme.
2. The worker had a serious illness which necessitated a major operation. In such circumstances in the past, it was normal for the Board to extend the sick pay scheme.
4. 1. In June, 1997, the worker indicated to her Supervisor that she was advised by her doctors to return to work on a part-time basis on light duties. In view of the serious nature of the illness suffered, the Supervisor sought clarification from the Board's Occupational Health Department as to whether she would be capable of performing the duties required of her post. The advice of the Board's Occupational Health Department was that she would benefit from being assigned lighter duties and avoiding heavy lifting tasks. Unfortunately the nature of the worker's duties could not facilitate this request.
2. Having regard to the difficult situation, discussions subsequently took place with the worker with a view to arranging more suitable employment within the Eastern Health Board. As a result of these discussions she was offered a full-time post of porter in the Killinarden Health Centre. She commenced this employment on the 12th of December, 1997 on a higher rate of pay.
3. The Company wishes to appeal the Rights Commissioner's recommendation with regard to the granting of an extension of the sick pay scheme. The conditions of her contract of employment were applied to her appropriately with regard to entitlement to payment during sick leave. The Company was conscious of the difficult circumstances and subsequently secured full-time employment for her with the Eastern Health Board.
Having considered the submissions, the Court is of the view that the Rights Commissioner's recommendation should be upheld on the basis that the compensation will be for loss of earnings equal to 24 weeks' net pay.
The Court so decides.
Signed on behalf of the Labour Court
20th July, 1998______________________
Enquiries concerning this Decision should be addressed to Fran Brennan, Court Secretary.