AD8790

Labour Court Database __________________________________________________________________________________ File Number: CD87712 Case Number: AD8790 Section / Act: S13(9) Parties: IRISH BISCUITS LTD - and - B.F.W.A.U.

Subject:
Appeal against Rights Commissioner's Recommendation ST172/87 concerning a worker's refusal to transfer to lighter duties and his subsequent retirement.

Recommendation:
7. The Court sees no reason to amend the Rights Commissioner's
Recommendation and so decides that it should stand. However,
having regard to the circumstances of the case should the worker
concerned apply for light work - as defined by the Company, within
four weeks of the issue of this decision, the Court suggests that
the Company give favourable consideration to his application.

Division: Mr O'Connell Mr Heffernan Ms Ni Mhurchu

Text of Document__________________________________________________________________

CD87712 THE LABOUR COURT AD9087
SECTION 13(9) INDUSTRIAL RELATIONS ACT, 1969
APPEAL DECISION NO. 90 OF 1987


Parties: IRISH BISCUITS LIMITED

and

THE BAKERY AND FOOD WORKERS' AMALGAMATED UNION


Subject:

1. Appeal against Rights Commissioner's Recommendation ST172/87
concerning a worker's refusal to transfer to lighter duties and
his subsequent retirement.

Background:

2. This appeal concerns a worker who was employed as a driver in
the Company's transport department. The worker was absent from
work since August, 1983 as a result of a serious heart complaint
which he had developed in March, 1982. He was not able to resume
work as a driver with the Company.

3. The Union sought to have the worker assigned to light work.
The Company was willing to provide light work and made an offer
accordingly. The worker wanted the Company to specify exactly
what this light work would entail. The Company was unable to be
anymore specific and no agreement was reached concerning the
worker's schedule of work.


Subsequently the Company state that the worker agreed to avail of
early retirement pension terms in a telephone conversation between
the worker and the Company's personnel manager. The worker denied
that he ever made such an agreement or that in fact he ever made
the call. When the Company wrote to the worker confirming the
position the worker returned his pension cheque and denied he had
left the Company's employment.

4. No agreement was reached through local negotiations and the
matter was referred for investigation to a Rights Commissioner who
on 20th July, 1987 issued his recommendation as follows:

I am satisfied on the evidence submitted that the
claimant frustrated his contract of service by his
refusal to undertake light work. It was further
frustrated by his inability on medical grounds to
resume his work as a driver. I accept as a fact that
he sought early retirement and was granted same. He
should now accept receipt of the cheques he returned to
the Company and I so recommend.

On 21st September, 1987 the Union appealed against that
recommendation to the Labour Court under Section 13(9) of the
Industrial Relations Act, 1969. The Court heard the appeal on
23rd October, 1987.

Union's arguments:

5. (i) The worker believed that if the Company did not specify
what the light work would be, he could be asked to do
any work in the warehouse. This was why he did not
accept the Company's offer of light work.




(ii) The Union believes that an ex-gratia payment plus the
workers pension could resolve this matter.

Company's arguments:

6. (a) The worker cannot drive vans because of his medical
condition and refuses to take a light-work opportunity
made available to him.

(b) The Company has tolerated a 'limbo' situation since
August, 1983. It was not prepared to allow the
situation to continue whereby the worker remained
nominally an employee but did not attend work.

(c) The Rights Commissioner investigated the matter fully
and found that the worker had frustrated his contract
in his refusal to take light work and in his inability
to resume work as a driver and that he had accepted
retirement.


DECISION:

7. The Court sees no reason to amend the Rights Commissioner's
Recommendation and so decides that it should stand. However,
having regard to the circumstances of the case should the worker
concerned apply for light work - as defined by the Company, within
four weeks of the issue of this decision, the Court suggests that
the Company give favourable consideration to his application.
~

Signed on behalf of the Labour Court

John O'Connell
_______________________
Deputy Chairman
9th November, 1987.
T.O'M/J.C.