Labour Court Database __________________________________________________________________________________ File Number: CD87411 Case Number: LCR11306 Section / Act: S20(1) Parties: DUBLIN CORPORATION - and - MR. CHARLES O'DONOGHUE |
Claim, by a worker, concerning alleged unfair dismissal.
Recommendation:
7. The Court, having considered the submissions made by the
parties, is of the view that the claimant was not unfairly treated
or dismissed. The Court accordingly does not recommend concession
of the claim.
Division: Mr Fitzgerald Mr Collins Mr Devine
Text of Document__________________________________________________________________
CD87411 THE LABOUR COURT LCR11306
Section 20(1) INDUSTRIAL RELATIONS ACT 1969
RECOMMENDATION NO. 11306
PARTIES: DUBLIN CORPORATION
and
A WORKER
Subject:
1. Claim, by a worker, concerning alleged unfair dismissal.
Background:
2. The worker concerned was employed by the Corporation as a
probationary labourer for two brief periods. During his first
period of employment from 23rd June, 1980, to 29th August, 1980,
he was attached to the Cleaning Section. After he was paid off at
the end of his holiday work, his name was retained on the list of
persons suitable for re-employment. On 8th June, 1981, he was
re-employed in the Sewers Section and was given training to enable
him to act as a substitute Shift Attendant at the East Road
Pumping Station.
3. On a number of occasions the worker was late arriving for work
and twice failed to arrive at all. On 8th July, 1981, after a
conversation with the supervisor he left the station and did not
return. On 22nd July, 1981, the worker had an interview in the
Personnel Department and a further interview on 31st July, 1981,
at which he was accompanied by a representative of his Union. As
a result of the second interview it was decided that the worker's
departure on 8th July, 1981, would be regarded as a routine pay
off due to the unavailability of suitable employment and that his
name would be retained on the list of persons suitable for
re-employment. However, in the event of employment being
available, he would first be required to undergo a medical
examination to determine if there were any medical factors which
would affect his ability to render regular and efficient service.
The worker was requested to attend for a medical examination on
13th July, 1982, but he declined to do so. Subsequently, on 8th
March, 1983, the worker informed the Corporation that he was
willing to undergo a medical examination. This took place on 12th
April, 1983.
4. Following consideration of the medical referee's report the
Corporation concluded that it could not offer the worker
employment and advised him accordingly. The worker alleging
unfair dismissal, referred the matter in September, 1986, to a
Rights Commissioner for investigation. The Corporation declined
to be party to such an investigation after such a long interval.
In May, 1987, the worker referred the matter to the Labour Court
for investigation and recommendation under Section 20(1) of the
Industrial Relations Act, 1969. A Court hearing was held on 19th
June, 1987.
Worker's arguments:
5. (a) The Corporation has indicated that when the worker
declined to attend a medical examination on 13th July,
1982, he did so in an ungracious manner. The worker
has apologised for this and for walking out of the
station on 8th July, 1981. These were events that
occurred because the worker felt that he was being
treated unfairly by the Corporation.
(b) The medical examination undertaken by the worker on
12th April, 1983, did not relate to his physical
ability to work. The examination was only concerned
with considering his personality, hobbies, etc. The
worker feels that this type of examination is not
sufficient to judge his ability to do the job, and as
a result is willing to undergo a further medical
examination.
Corporation's arguments:
6. (i) The Corporation submits that the worker was not
unfairly dismissed or treated unfairly in any way.
His employment record during his brief period of
probationary employment in 1981 was quite
unsatisfactory. He abandoned his employment on 8th
July 1981. He agreed that the ending of his
employment in 1981 would be treated as a routine end
of holiday work pay off. He accepted that
re-employment would depend on his undergoing a medical
examination to establish medical fitness and on
employment being available. His refusal to submit to
a medical examination in 1982 in the context of the
case history should have ruled out further
consideration of his re-employment, but the
Corporation gave him a further chance in 1983 and
would have employed him if the Medical Report had
indicated even a reasonable prospect of his being able
to function in a routine capacity with a reasonable
level of efficiency and without undue disharmony.
(ii) Having regard to its grim financial situation, the
Corporation's efforts are devoted to avoiding, if at
all possible, the disemployment of its existing
workforce. Of necessity all recruitment of general
operatives has been suspended indefinitely. Even if
he was regarded as suitable for employment there are
no vacancies for which he could be considered.
RECOMMENDATION:
7. The Court, having considered the submissions made by the
parties, is of the view that the claimant was not unfairly treated
or dismissed. The Court accordingly does not recommend concession
of the claim.
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Signed on behalf of the Labour Court
9th July, 1987 Nicholas Fitzgerald
B.O'N./P.W. Deputy Chairman