Labour Court Database __________________________________________________________________________________ File Number: CD87705 Case Number: AD8786 Section / Act: S13(9) Parties: IRISH RAIL - and - MR. SEAN DONOVAN |
Appeal, by the worker, against Rights Commissioner's Recommendation CW84/87 concerning unfair dismissal.
Recommendation:
7. The Court is of the opinion that the Rights Commissioner's
Recommendation was correct and should therefore stand.
The Court so decides.
Division: Mr O'Connell Mr McHenry Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD87705 THE LABOUR COURT AD8687
SECTION 13(9)
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
APPEAL DECISION NO. 86 OF 1987
Parties: IRISH RAIL
and
A WORKER
Subject:
1. Appeal, by the worker, against Rights Commissioner's
Recommendation CW84/87 concerning unfair dismissal.
Background:
2. The appeal concerns a worker who took early retirement from
the Company in February, 1985. The worker had been employed as a
coachmaker since November, 1969. He also had early service as a
coachmaker with the Company in the period from 1938 to 1955. When
the worker was re-employed in 1969 he was refused entry to the
pension scheme as he had refused to join it during his earlier
period of employment. The worker had an accident at work in 1970.
In March, 1971 he was medically advised that he should not be
assigned to high, heavy or hazardous work. At the time he retired
in February, 1985 the worker was 63 years and he had exhausted his
sick leave entitlement under the C.I.E. welfare scheme. Under
Section 4 of the welfare scheme for regular wages staff the
Company gave the worker three options. These were:
(1) to retire immediately on ill-health,
(2) to accept 72 cumulative weeks approximately of extended
sickness leave with sickness benefit payment,
(3) to accept 13 cumulative weeks of extended sickness
leave without payment.
On 4th March, 1985 the worker selected option No. 1 and retired on
ill-health. The worker was retired with effect from 28th
February, 1985 and paid a lump gratuity of #2380.50 to which he
was entitled under option 1. The worker claimed that he was
effectively forced to retire and that his forced retirement was
unfair because his situation was not one of sickness but rather an
occupational injury. The Company rejected the claim.
4. No agreement was reached through local negotiations and the
matter was referred to a Rights Commissioner who having
investigated the dispute, issued his recommendation on 21st
August, 1987. This recommendation was that the worker accept that
no unfair dismissal took place in his case and that the Company
acted correctly. On 31st August, 1987 the worker appealed that
recommendation to the Labour Court in accordance with Section
13(9) of the Industrial Relations Act, 1969. The Court heard the
appeal on 16th October, 1987.
Union's arguments:
5. (i) The worker's employment was ended or procured wrongly
as the Company's refusal to admit him to the pension
scheme at 48 years of age, in what was a new contract
of employment, placed him in a vulnerable position in
Section 4 of the welfare scheme.
(ii) The worker's absence was directly caused by the
Company's negligence in the matter of faulty equipment,
and his absence was through occupational injury, not
sickness in the sense that Section 4 implied.
(iii) The worker received a serious injury for which no
damages were paid by the Company, and he was
constructively dismissed two years before normal
retirement age - thereby incurring further serious loss
of earnings. The worker estimates that his losses to
age 65 - including his loss of pay and overtime
occasioned by his injury since 1972 is somewhere in the
region of #20,000.
(iv) The Court will note that proceedings through civil
process for damages for the accident are Statute
barred, and therefore on the grounds of natural
justice, the worker should be compensated adequately by
the Company.
Company's arguments:
6. (a) The Company operates both a superannuation scheme and a
welfare scheme for regular wages staff. The worker
declined to join the superannuation scheme but became a
member of the C.I.E. welfare scheme for regular wages
staff. He was excused from heavy, hazardous and high
work from March, 1971 until his retirement in 1985
because he claimed that due to an injury at work he was
unable to perform the heavier duties of his grade. The
Company believes the worker was fully conversant with
the provisions of the welfare scheme particularly with
Section 4 which concerns early retirement benefit.
(b) The provisions of Section 4 of the welfare scheme for
regular wages staff are uniformly and universally
applied throughout C.I.E. When the worker reached 26
weeks of cumulative sickness leave, it was an automatic
requirement under the terms of the scheme that he be
requested to select one of the three benefits; and if
he failed to exercise his option that he be deemed to
have selected benefit no. 3. The worker selected
option no. 1 which was in fact a voluntary option for
immediate retirement on ill-health.
(c) The worker was fully aware of the provisions of the
welfare scheme as they applied to him, and that his
requests for information on the terms of voluntary
severance shows that he had been for a number of years
weighing up the retirement opportunities available to
him. When he signed form WPS 10 and selected benefit
no. 1 on the 4th March, 1985 he was fully informed and
aware of what he was doing.
(d) The worker claims the cause of his retirement on
ill-health was an accident at work. In the period from
11th April, 1983 to 28th February, 1985 the worker was
absent from work due to illness on seven separate
occasions and in each case the absence was recorded as
ordinary sickness. In any event if the absences had
been due to occupational injury the exact same terms of
the Company's welfare scheme would have applied to the
worker as were applied.
(e) When the worker was appointed to the regular staff in
November, 1970 the matter of his inclusion in the
pension scheme was referred to the administrator of the
pension scheme. A ruling was given that because of his
previous refusal to join the scheme the worker was
precluded from joining.
(f) The worker's situation is different from that of
another worker who received an ex-gratia payment of
#1,500 as he had an entitlement to a lump sum payment
on retirement under the voluntary scheme. That lump
sum would have been far greater than #1,500. There was
never any question of employees receiving two lump sum
gratuities from the Company.
(g) The first indication the Company had of the worker's
contention of unfair dismissal was the notification of
the Rights Commissioner's investigation.
DECISION:
7. The Court is of the opinion that the Rights Commissioner's
Recommendation was correct and should therefore stand.
The Court so decides.
~
Signed on behalf of the Labour Court
John O'Connell
__________________________
3rd November, 1987. Deputy Chairman
T.O'M/J.C.