INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
HEALTH SERVICE EXECUTIVE NORTH WEST
- AND -
(REPRESENTED BY IRISH NURSES ORGANISATION)
Chairman: Mr Duffy
Employer Member: Mr Grier
Worker Member: Mr Nash
1. Appeal Against Rights Commissioner's Recommendation Ir20628/04/Tb
2. The case before the Court is an appeal by the Union of Rights Commissioner's Recommendation Ir20628/04/Tb. The dispute concerns an employee of the Health Service Executive (HSE) Western Area who has been unable to return to work following an occupational injury received in a road traffic accident in 1999. The Union (on behalf of the worker) is claiming that the worker signed a form of indemnity which, it is claimed, stated that her wages would continue to be paid to her while absent on sick leave. Management's position is that sick pay entitlements were paid to the worker in compliance with the HSE's sick pay scheme in that she received full pay for six months followed by half pay for six months and pension rate of pay thereafter subject to review.
The dispute was referred to a Rights Commissioner who issued his Recommendation on 17th May, 2005 as follows:
" Is seems to me that the intention of the indemnity form is to ensure that the employer is reimbursed for any paymentmade to the employee during any absence arising from the accident and for which compensation might be paid.
Such absences are paid as sick leave and subject to sick leave rules which extend into the payment of pension rate of pay which in turn is subject to approval by the Department of Health and Children.
While the indemnity form signed by the claimant could have been worded more clearly and has since been clarified, it seems to me, that from an Industrial Relations point of view, the Health Board's position is not unreasonable.
I do not recommend in favour of the Union position.
On the 15th June, 2005 the Union appealed the Rights Commissioner's Recommendation in accordance with Section 13(9) of Industrial Relations
Act, 1969. A Labour Court hearing took place on the 15th September, 2006.
3. 1. The worker had an expectation that her full wages would be continued to be paid to her. This was explained to her by the Director of Nursing at the time that a "discharge of wages" would continue while she was absent on sick leave.
2. Management's position that pension rate of pay equates to wages is unsustainable as a pension rate of pay is derived specifically from contributions made by the employee during their period of service and therefore does not constitute wages.
4. 1. The worker was paid all entitlements under the sick pay scheme. Having exhausted six months full pay and six months half pay, the worker received pension rate of pay in line with the scheme. Payment of pension rate of pay is a short term benefit payable when a reasonable expectation exists that there will be a resumption of work. There is currently no such expectation in this case.
2. Management has acted in a fair and reasonable manner at all times in relation to this issue. It has been as generous as possible within the confines of the sick pay scheme and has made every effort to source suitable alternative employment for the worker.
The Court is satisfied that the Employer applied the sick pay scheme to the claimant in the manner agreed and as it is consistently applied to all employees. The indemnity form at issue in this case could not offset or supplant the terms of the scheme. Nor, in the Court's view could the indemnity be reasonable as construed as having such an effect.
In the circumstances the Court is satisfied that the conclusion of the Rights Commissioner is correct and his recommendation is affirmed.
The Union's claim is disallowed.
Signed on behalf of the Labour Court
4th October 2006______________________
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.