INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
TRALEE TOWN COUNCIL
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Ms Jenkinson
Employer Member: Mr Doherty
Worker Member: Mr Nash
1. Appeal against Rights Commissioner's Recommendation IR15411/03/MR.
2. The issue involves a claim by the Union on behalf of a worker, who was paid on a daily basis for each day he worked, plus church holidays and public holidays, Clause 5 of his contract also required him to be paid for “occasional school free days during school terms subject to a maximum of two consecutive free days”. The Council’s interpretation was that “two consecutive free days” as meaning the worker would not be paid for a Monday when the school was closed from Thursday to Monday. The Union did not accept that a Friday and a Monday could be regarded as “consecutive days” and that the worker should be paid for those days. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 31st May 2004, the Rights Commissioner issued his recommendation as follows:
- “In the circumstances, I recommend that the Union should accept the Council’s interpretation of Clause 5 of the claimants contract”
- a) Payment will be made for Church Holidays, Bank Holidays and occasional school free days during school terms subject to a maximum of two consecutive free days"
- b) Payment will not be made during school holidays or for any other period when the school is closed for more than two consecutive days for any other reason.
- On the 3rd June, 2004 the claimant appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969 on the grounds that the Rights Commissioner's interpretation is incorrect. A Labour Court hearing took place on the 7th December, 2004.
(The claimant was named in the Rights Commissioners recommendation)
3.1 The interpretation adopted by the Rights Commissioner was unreasonable.
2. The Union contends that consecutive days applies to two days only with respect to the working week i.e. Monday to Friday inclusive.
3. The payment of basic wages are specific to the work in week i.e. Monday to Friday.
TOWN COUNCIL'S ARGUMENTS:
4.1 The Council agrees with the Rights Commissioner's recommendation i.e. that the Council need not pay the worker for a Monday when the school was closed from Thursday to Monday.
2. The Council takes clause 5 to mean that more than two consecutive free days applied to a Thursday, Friday and a Monday situation as schools are closed Saturday and Sunday, making Thursday, Friday and Monday consecutive to one another. Thursday, Friday and Monday are part of the same period.
3. Should the school be closed on a Bank Holiday Monday, the previous Thursday and Friday are considered part of the same period.
4. It is the Council's policy to consider Thursday, Friday and Monday as consecutive days with regard to 'sick leave'. A medical certificate is required should an employee take sick leave on a Thursday, Friday and Monday. The Monday is taken as the third sick day in a row.
Having considered the views of the parties expressed in their oral and written submissions, the Court has considered the interpretation of the School Warden's terms and conditions of employment in Tralee Town Council where reference is made to "2 consecutive days"during school free periods. The Court takes the view that "2 consecutive days" in this context must be taken to mean "2 consecutive days" within the particular holiday period, excluding Saturdays and Sundays, which are not normal school days.
Therefore, the Court accepts management's interpretation of the clause and finds against the appellant's appeal.
The appeal is disallowed; the Court upholds the Rights Commissioner's recommendation.
The Court so decides.
Signed on behalf of the Labour Court
Enquiries concerning this Decision should be addressed to Jackie Byrne, Court Secretary.