FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : FRYMOUNT LIMITED (REPRESENTED BY WILLIAM FRY SOLICITORS) - AND - A WORKER (REPRESENTED BY DANIEL SPRING & COMPANY) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Compensation.
BACKGROUND:
2. The claim before the Court concerns an alleged breach of the Claimant’s contractual entitlements when the employer failed, refused and, or neglected to pay the Claimant sick pay.
The Claimant commenced employment with the Company on 8th November 2004. On 6th June 2006 she was absent on certified sick leave and returned to work for the month of September 2006. She was absent again from October 2006 until the present day. As she did not qualify under the terms of the Company’s pension scheme when she commenced her sick leave the company applied term (b) of the sick pay scheme and paid her three months’ full pay and three months’ half pay, with the appropriate social welfare offsets, under the sick pay scheme. Counsel on behalf of the Claimant claimed that she should have received repeated sick pay benefit for each of the holiday leave years since the commencement of her sick leave and accordingly sought compensation for those parts of the unpaid sick leave. The Company contended that she had received all her of sick pay entitlements in accordance with the scheme.
The Worker referred her case to the Labour Court on the 18th January, 2008, in accordance with Section 20(1) of the Industrial Relations Act, 1969. The Worker agreed to be bound by the Court's Recommendation. A Labour Court hearing took place on the 17th April, 2008.
WORKER'S ARGUMENTS:
3. 1. Because of alleged bullying and harrassment of the Claimant by a Company manager, the Claimant has been on continuous sick leave since September 2006.
2.The Claimant did not receive her correct sick leave entitlements.
3.The Company sought to apply retrospective changes to its sick leave scheme to the Claimant.
COMPANY'S ARGUMENTS:
4. 1.The Claimant received her correct sick leave entitlements.
2.The Claimant cannot continue to claim that she is on sick leave from a Company based in Dublin as she is now living in Cork.
3.Although she claims to be on sick leave, the Claimant has not submitted a medical certificate to the Employer since early 2007.
RECOMMENDATION:
The claim before the Court under section 20 (i) of the Industrial Relations Act, 1969 concerns an alleged breach of the claimant’s contractual entitlements when the employer failed, refused and or neglected to pay the claimant sick pay.
The Court has considered the oral and written submissions of both parties and examined the company’s sick pay scheme. The scheme states:
- “Payment of salary during absence through certified illness will be as follows:
(b)employees who are not members of the pension scheme and who have completed six months service with the Firm will receive full pay for a total period of three months of illness during each holiday year and half pay for the next three months during the same holiday year, subject to refunding to the Firm all social welfare benefits due during the first three months and half the social welfare benefits due during the next three months;”
The claimant commenced employment with the Company on 8th November 2004. On 6th June 2006 she was absent on certified sick leave and returned to work for the month of September 2006. She was absent again from October 2006 until the present day. As she did not qualify under the terms of the Company’s pension scheme when she commenced her sick leave the company applied the terms according to (b) and paid her three months’ full pay and three months’ half pay, with the appropriate social welfare offset. Counsel on behalf of the claimant claimed that she should have received sick pay benefit for each of the holiday leave years since the commencement of her sick leave and accordingly sought compensation for those parts of the unpaid sick leave. The employer contended that she had received all of her sick pay entitlements in accordance with the scheme.
The employer informed the Court that employees with two years’ service become eligible to join the pension scheme. Having examined the sick pay scheme, the Court is of the view that it was correctly applied to the claimant for her sick leave up to 7th November 2006 and thereafter, as she became eligible to join the pension scheme at that point, the terms of (a) should have been applicable in her case.
As the claimant has not been admitted to the Company’s pension scheme the Court recommends that she should now be considered for entry into the pension scheme under the normal rules applicable, and if admitted to the pension scheme accordingly, then the terms of (a) should be retrospectively applied to her from 8th November 2006.
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
13 May, 2008.______________________
JMcC.Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Jonathan McCabe, Court Secretary.