INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
ABS PUMPS LTD
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Ms Jenkinson
Employer Member: Mr Doherty
Worker Member: Mr O'Neill
1. Appeal against Rights Commissioner's Recommendation IR17467/03/TB.
2. All employees of the Company are paid for Public Holidays in accordance with the Organisation of Working Time Act. The Company sick pay scheme is run separately to that of entitlements for Public Holidays . Both schemes are fully adhered to. However, it had been custom and practice within the Company whereby an employee who is out ill when a Public Holiday falls receives a day off with pay when they return to work.
In January 2002 the HR office discovered that employees were erroneously receiving an additional day off if they fell sick on the week of a Public Holiday as well as being compensated for the day. The HR office informed the shop stewards that this practice would no longer be carried out. The Company did not try to recoup these overpayments but as a gesture, anyone who had fallen sick on a Public Holiday prior to January 2002, was given the extra day off.
The worker concerned was on sick leave at the end of October, 2002 and again at Easter, 2003. On both occasions he lost his Public Holiday.
The issue was referred to a Rights Commissioner for investigation and recommendation. His Recommendation which issued on the 1st June, 2005, was as follows:-
"I recommend that if the practice of a day off on return to work is to be maintained then the day of the public holiday should be treated as a day of sick leave.
In the meantime the claimant should be granted the day claimed by the Union on his behalf."
The Company appealed the recommendation to the Labour Court on the 10th June, 2005, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 21st October, 2005.
3. 1. The Rights Commissioner's Recommendation means that the Company has to treat employees who fall sick on the week of a public holiday more favourably than that of other employees. The Company cannot live with this Recommendation.
2. The Company sees it as rewarding an employee while out of work on sick leave.
3. To agree to this Recommendation will have far reaching effects for the Company, notably the cost factor.
4. 1. It is custom and practice that employees have always received an additional day off in lieu of a Public Holiday.
2. It is wrong to withdraw the benefit of a Public Holiday from an employee who is ill through no fault of their own.
3. The Company withdrew a practice which was clearly operating within the Company before and subsequent to the introduction of the Sick Pay Scheme in 1997.
The appeal before the Court was made on behalf of the Company who appealed the Rights Commissioner's Recommendation. It stated that the practice of allowing a day off in lieu of a Public Holiday, for those absent through illness on the day of the Public Holiday, was an erroneous practice and the Company discontinued the practice from November 2002. The Union held that the practice has been in place for over 20 years. The Union sought reinstatement of the practice and on behalf of a named worker sought one Public Holiday from Easter 2003.
The Court notes that the Company do not contest that this practice has been a long established practice.
Having considered the views of the parties expressed in their oral and written submissions, the Court accepts that it has been the custom and practice for a very considerable period of time to provide a day off in lieu of a Public Holiday for those absent through illness on the day of the Public Holiday. The Court recommends that the Company should uphold this practice until such time as an agreement is concluded between the parties to change it, utilising the normal industrial relations procedures. To that extent the Court varies the Rights Commissioner's Recommendation.
Additionally, the Court upholds the Rights Commissioner's Recommendation that the named worker should be granted the day claimed by the Union on his behalf.
The Court so decides.
Signed on behalf of the Labour Court
15th November, 2005______________________
Enquiries concerning this Decision should be addressed to Madelon Geoghegan, Court Secretary.