Labour Court Database __________________________________________________________________________________ File Number: CD86802 Case Number: LCR10858 Section / Act: S67 Parties: TARA MINES - and - ITGWU |
Dismissal of a worker.
Recommendation:
7. In relation to this case, the Court is satisfied that the
Company acted within the house agreement and in postponing for so
long the decision regarding his dismissal showed a genuine concern
for the claimant and an understanding of the unusual features of
his injury. The Court accepts that at the time of dismissal, the
likely date of the claimant's medical clearance for return to work
was still uncertain and that his absence at that stage was of
significantly longer duration than had applied in any other case
of dismissal on medical grounds.
The claimant's misfortune in relation to his injury was
exacerbated by the fact that had his medical consultant been in a
position to assure the Company that he would be fit for work in
early July, as transpired, it is likely that the Company would not
have processed his dismissal.
The Court is of the view that it would be in keeping with the
Company's earlier stance in the case if on compassionate grounds
they were to offer him re-employment on a probationary basis. The
Court would not regard such a course as a precedent for other
cases. The Court so recommends.
The Court does not recommend concession of the Union's claim for
compensation for loss of earnings.
Division: Mr Fitzgerald Mr Heffernan Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD86802 THE LABOUR COURT LCR10858
CC861340 INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
RECOMMENDATION NO. 10858
PARTIES: TARA MINES LIMITED
(Represented by the Federated Union of Employers)
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
Subject:
1. Dismissal of a worker.
Background:
2. The Company is involved in the mining of ore and employs
approximately 985 workers at its mine in Navan Co. Meath. The
worker concerned was first employed by the Company in June, 1978,
on a temporary basis and was offered permanent employment as an
underground labourer in September, 1979, and in 1980 he attained
the status of miner.
3. In July, 1984 the worker sustained an injury to his leg while
playing football and was hospitalised as a result. The company
extended the normal time that it allows for return to work to
twenty-two months during which time the worker continued to submit
medical certificates, including a certificate from a specialist,
indicating that he was medically unfit to resume work. Throughout
this period a Company's representative spoke to the worker on a
number of occasions in an effort to establish a date for a likely
return to work (details of the medical certificates received from
the worker and of meetings between the worker and the Company's
representative during the period in question were supplied to the
Court).
4. At a meeting between the Company's personnel manager and the
worker on 4th April, 1986, the personnel manager indicated to the
worker that a final medical review would be arranged for Friday
5th May, 1986, when a final decision would be made. The review
was postponed to 13th May, 1986, on which date the worker
presented another medical certificate from his own doctor
indicating that he would be unfit to work for a further 4 weeks.
On the 14th May, 1986, following the company doctor's report, the
worker's employment with the Company was terminated.
5. On the 4th July, 1986, the worker was declared medically fit
to return to work by his specialist and the Union on his behalf
served a claim on the Company for his reinstatement, with
appropriate retrospection to 4th July, 1986, contending that he
was unfairly dismissed. The Company rejected the claim and as no
agreement could be reached at local level the matter was referred,
on 8th August, 1986, to the conciliation service of the Labour
Court. Following a conciliation conference, which was held on
17th October, 1986, (an earlier date was unsuitable to the
parties) at which no agreement was reached, the matter was
referred to the Labour Court for investigation and recommendation.
The Court investigated the dispute on 25th November, 1986, in
Navan. (A letter Recommendation issued to the parties on 8th
December, 1986 - Recommendation No. 10858A/L refers).
Union's arguments:
5. (i) Arising from his accident the worker has experienced
great pain and suffering. It has also resulted in the
loss to him of a high level of earnings and his living
accommodation which he was financially unable to
maintain. However, the greatest loss of all is his
job for which he went to great lengths to prepare
himself and from which to make a career (details
supplied to the Court). The decision by the Company
to dismiss the worker has meant, in effect, that if he
is to continue with his career he will have to
emigrate to do so.
(ii) The worker was a good employee of the Company who not
alone carried out his work as a miner, but also played
a very significant role in the area of industrial
relations in the Company. In early 1982, the worker
became chairman of the Union's mine section committee
and gave much of his spare time to this role. The
Union and Company clearly benefited from his dedicated
efforts in this area.
(iii) From an early date, it was known to the Company that
the worker would be medically fit to resume work, but
when this time was within sight the Company dismissed
him. The position left vacant by the Company's
decision has not been filled, although the Company has
filled a permanent position in another area since the
worker's dismissal.
(iv) Throughout his illness the worker made it clear to the
Company that he was anxious to return to work while on
crutches with his leg in plaster if a suitable
position in these circumstances could be provided.
However, the Company advised him that no such suitable
work was available.
(v) Given the background of this case and taking all the
circumstances into consideration, the worker was
unfairly dismissed by the Company. Therefore, the
worker should be re-instated to his former position
with appropriate compensation for loss of wages since
the 4th July, 1986; the date the worker was declared
medically fit to resume work.
Company's arguments:
6. (a) Despite an unsatisfactory attendance record during his
period of employment with the Company (details
supplied to the Court) the worker received greater
consideration than that afforded to any other employee
since the commencement of operations. It is customary
that, after the lapse of a full 12 months on sickness
or injury related absence, a final medical review of
an individual's status is conducted. Following that
review a decision is taken, and unless there is an
immediate prospect of an early return to work, the
individual's employment is terminated. In the
worker's case the Company extended this period for a
further 6 months, and even at that point, further
extended the time limit for another 3 months, a total
of 22 months in all. At that stage, in May, 1986, the
Company could obtain no firm indication from the
Company medical adviser, as to when the worker would
be in a position to return to work. It is
unreasonable to expect that any company must keep an
individual's position open, given these circumstances.
(b) Since early 1986, due to the depressed state of metal
prices, an embargo on recruitment is in force, and
resignations or terminations are not being replaced.
(c) The Company is going through a critical period. Its
package of remuneration and benefits provides high
earnings and good employment for its employees. In
return, management needs employees in whom they have
confidence that they will attend for work regularly
and consistently. In the case of the worker,
management would have no confidence in him as an
employee.
(d) Over the last number of years a considerable number of
employees have had their employment terminated in
similar circumstances to the worker, but after a much
shorter period of total absences, the longest being 15
months.
(e) To afford in all cases of long term sick absences, a
period of 22 months would set an extremely damaging
precedent.
(f) The re-instatement of the worker would totally
undermine the Company's ability to deal with cases of
long term absence from work. In all the circumstances
therefore, the Union's claim must be rejected.
RECOMMENDATION:
7. In relation to this case, the Court is satisfied that the
Company acted within the house agreement and in postponing for so
long the decision regarding his dismissal showed a genuine concern
for the claimant and an understanding of the unusual features of
his injury. The Court accepts that at the time of dismissal, the
likely date of the claimant's medical clearance for return to work
was still uncertain and that his absence at that stage was of
significantly longer duration than had applied in any other case
of dismissal on medical grounds.
The claimant's misfortune in relation to his injury was
exacerbated by the fact that had his medical consultant been in a
position to assure the Company that he would be fit for work in
early July, as transpired, it is likely that the Company would not
have processed his dismissal.
The Court is of the view that it would be in keeping with the
Company's earlier stance in the case if on compassionate grounds
they were to offer him re-employment on a probationary basis. The
Court would not regard such a course as a precedent for other
cases. The Court so recommends.
The Court does not recommend concession of the Union's claim for
compensation for loss of earnings.
~
Signed on behalf of the Labour Court
18th December, 1986 Nicholas Fitzgerald
T.McC./P.W. Deputy Chairman