Labour Court Database __________________________________________________________________________________ File Number: CD/87/742 Case Number: AD8796 Section / Act: S13(9) Parties: IRISH RAIL - and - ITGWU |
Appeal by the Union against Rights Commissioner's Recommendation No. CW132/86, concerning alleged discrimination against a worker.
Recommendation:
5. The Court is satisfied that the Rights Commissioner's
recommendation is fair and the Court does not find any grounds for
altering it.
The Court therefore does not uphold the appeal from the Union and
so decides.
Division: Ms Owens Mr Shiel Mr Walsh
Text of Document__________________________________________________________________
CD87742 APPEAL DECISION NO. AD9687
INDUSTRIAL RELATIONS ACT, 1969
SECTION 13(9)
PARTIES: IRISH RAIL
AND
IRISH TRANSPORT AND GENERAL WORKERS' UNION
SUBJECT:
1. Appeal by the Union against Rights Commissioner's
Recommendation No. CW132/86, concerning alleged discrimination
against a worker.
BACKGROUND:
2. The worker concerned has been employed by the Company since
17th February, 1961. He is presently employed as an engineering
operative group 1 in the rail stores which is part of the
materials managers section. In 1985 following a period of illness
the worker was examined by the Company's medical officer.
Following the examination the doctor certified the worker fit for
work but recommended that in view of his medical condition he be
assigned to lighter duties. As a result the worker was
transferred to the stationary stores. During the course of 1985
and 1986, the Union in correspondence and at meetings claimed that
the worker should be moved to other work in the stores. The
Company contended that as the work in the stationery stores had no
adverse effect on his health he should remain there. The matter
was referred to a Rights Commissioner for investigation and
recommendation. A hearing took place on 19th September, 1986 and
the following recommendation was issued dated 23rd October, 1986:-
" I recommend that the worker accepts that the Company is not
discriminating against him in the disputed areas of work
location, access to overtime, and relief duties. I recommend
that the Company might reconsider him for appropriate relief
duties subject to regular attendance."
The Union appealed this recommendation on 29th September, 1987, to
the Labour Court. The Union did not appeal earlier because it was
considered that some form of settlement could be reached with the
Company. The appeal was heard by the Court on 30th October, 1987.
UNION'S ARGUMENTS:
3. 1. The Company discriminates against the worker in 3 areas,
work location, access to overtime and relief duties.
2. Work location:- It is accepted that as a stores
operative that the worker can be placed in any location in the
stores, however his placement in that location was
unneccessary and was motivated for entirely different reasons
than those given to the Rights Commissioner.
3. 3. Access to overtime:- The Rights Commissioner issued his
recommendation in the belief that the worker would be
unreliable in availing of overtime because of his attendance
record. However in the 12 months preceding the Rights
Commissioner's hearing the worker's attendance record had
improved greatly and indeed since the hearing it has continued
in that vein. The worker therefore has re-established himself
as a reliable worker and should therefore be restored to his
normal fair share of overtime. The Company have not done
this.
4. Relief duties:- The worker was the established relief
foreman on a seniority basis for many years to the point of
being almost full-time in the role. Following a dispute in
1983 this position became less frequent. The Company hold the
view that it was the worker's attendance record which dictated
their approach. However since the worker's attendance record
improved he has not been used as relief foreman.
5. Since the issue of the Rights Commissioner's
recommendation the worker has applied on two occasions for the
advertised position of foreman. He was unsuccessful on both
occasions. Given his previous experience as relief foreman
and the improvement in his attendance record it can only be
concluded that the worker is being discriminated against and
that this is somewhat related to the 1983 dispute.
COMPANY'S ARGUMENTS:
4. 1. The worker was transferred to the stationary stores
because the Company doctor certified that he was fit for work
on light duties only. That this was a correct decision is
borne out by the fact that his attendance record has improved
considerably since his transfer there.
2. The worker was refused overtime in other areas of the
stores, again on medical advice. However if overtime arises
in his own area he is given an opportunity to work it.
Similarly the position of foreman entails a lot of walking and
climbing and it is the Company's view that this position would
exacerbate his medical condition.
3. The Company have not discriminated against the worker
concerned. It has acted in his best interest in view of his
medical condition and the Company do not intend to allocate
the worker any duties which may aggravate that condition.
4. The Company's medical officer has visited the worker's
work location and indicated that the duties he is performing
are suitable.
DECISION:
5. The Court is satisfied that the Rights Commissioner's
recommendation is fair and the Court does not find any grounds for
altering it.
The Court therefore does not uphold the appeal from the Union and
so decides.
~
Signed on behalf of the Labour Court.
Evelyn Owens
__10th___December,___1987. ___________________
M. D. / M. F. Deputy Chairman