Labour Court Database __________________________________________________________________________________ File Number: CD86599 Case Number: LCR10746 Section / Act: S67 Parties: BORD NA MONA - and - FWUI |
Claim for the reinstatement of a dismissed worker.
Recommendation:
5. In the light of the evidence presented, the Court recommends
that the claimant should be re-instated in a suitable position on
the 1st November, 1986, and be required to serve the standard
probationary period as from that date; the interim period as from
the date of his dismissal to be regarded as a period of suspension
without pay.
Division: Mr Fitzgerald Mr Heffernan Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD86599 THE LABOUR COURT LCR10746
CC86688 INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
RECOMMENDATION NO. 10746
Parties: BORD NA MONA
and
FEDERATED WORKERS UNION OF IRELAND
Subject:
1. Claim for the reinstatement of a dismissed worker.
Background:
2. The worker concerned was dismissed by letter dated the 25th
March, 1985 (effective from the 1st April, 1985), following a
Management view that there were irregularities in a sick pay claim
made by him. It was considered that he had been overpaid in
respect of sick leave as the doctor's certificate submitted by him,
dated the 31/1/84, was in fact a continuation certificate and not a
first one and that it appeared to have been altered to look as if
its was a first one. The Bord's sick pay provisions provide that
an employee on certified sick leave is paid at his/her personal
rate (i.e. job rate plus flexibility/service pay) less any
disability and pay-related benefit to which he is entitled in
respect of the period under the Social Welfare Acts. Since Social
Welfare does not pay benefit in respect of the first three days of
illness, no deduction is made in respect of those days. When
Management confronted him with the allegations regarding these
irregularities, the worker denied them. He subsequently refused to
sign a letter authorising Management to obtain information in
relation to his sick leave from the Department of Social Welfare,
saying that the matter was in the hands of his solicitor. On the
25th March, 1985, he was served with a notice of dismissal,
effective from the 1st April, 1985. On the 8th May, 1985, his
solicitor referred the case to the Employment Appeals Tribunal
under the Unfair Dismissals Act, 1977. The case was subsequently
withdrawn from the Employment Appeals Tribunal and on the 16th
April, 1986, the claimant's Union referred the case to the
conciliation service of the Labour Court. At a conciliation
conference, held on the 27th May, 1986, the Union claimed that the
worker had been unfairly dismissed and that he should be
reinstated. Management rejected this and as no agreement could be
reached the matter was referred to the Labour Court on the 22nd
July, 1986, for investigation and recommendation. A Court hearing
into the dispute took place on the 22nd September, 1986, the
earliest date suitable to the parties.
Union's arguments:
3. (a) The doctor's certificate submitted by the claimant
which Management claims was altered could not have been
altered by him as he never even saw the certificate.
It was given to him in an envelope by his doctor's
secretary and he in turn gave the envelope to a friend
to give to Management.
(b) The claimant was unaware that the document from the
Department of Social Welfare which he submitted to
Management had the top half missing.
(c) The reason he did not sign the document which the Board
had intended to send to Social Welfare enquiring about
his dealings with them was because of advice he
received from his solicitor. Any misunderstandings
that occurred could have been sorted out at a union
meeting that was arranged with Management in April,
1985.
(d) The claimant has never before been in trouble with
Management regarding his attendance and time-keeping
and it is therefore unacceptable that he should have
been dismissed for what amounts to a misunderstanding
of the sick pay scheme.
Bord's arguments:
4. (i) The first doctor's certificate produced by the claimant
at the end of the official strike at Lullymore was
dated the 31st December, 1984 (copy submitted to
Court). Even though this certificate had been altered
it was taken to be a first certificate and sick leave
was paid accordingly. Management assumed that his
absence for the period 12th November to 31st December,
1986 was due to the strike. Following a query made by
the claimant when he returned to work it was discovered
that he had been overpaid sick leave, owing to the fact
that the first certificate produced by him was in fact
a continuation certificate and not a first one. The
alteration to the certificate is obvious and could only
have been made in order that no deductions would be
made from the first three days of sick leave.
(ii) The claimant has consistently denied all the
allegations made against him and refused to sign a
letter authorising the Department of Social Welfare to
supply information on the benefits paid to Management.
Despite his denials, Management subsequently received
information from the Department of Social Welfare which
confirmed its view. He was given ample opportunity to
clarify the matter but never did and Management
therefore is of the opinion that he was fairly
dismissed.
RECOMMENDATION:
5. In the light of the evidence presented, the Court recommends
that the claimant should be re-instated in a suitable position on
the 1st November, 1986, and be required to serve the standard
probationary period as from that date; the interim period as from
the date of his dismissal to be regarded as a period of suspension
without pay.
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Signed on behalf of the Labour Court
Nicholas Fitzgerald
10th October,1986 -------------------
D.H./U. Deputy Chairman