Labour Court Database __________________________________________________________________________________ File Number: CD87741 Case Number: LCR11624 Section / Act: S20(1) Parties: IARNROD EIREANN - and - AMALGAMATED ENGINEERING UNION |
Dispute regarding the alleged unfair dismissal of a worker.
Recommendation:
6. The Court has considered the submissions made by the parties.
Because of the claimant's unavailability for work over long
periods the Court has concluded that the Company's ultimate
decision to dismiss him was not unfair. The Court, accordingly,
does not recommend concession of the Union's claim.
Division: Mr Fitzgerald Mr Shiel Mr O'Murchu
Text of Document__________________________________________________________________
CD87741 RECOMMENDATION NO. LCR11624
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 20(1)
PARTIES: IARNROD EIREANN
and
AMALGAMATED ENGINEERING UNION
SUBJECT:
1. Dispute regarding the alleged unfair dismissal of a worker.
BACKGROUND:
2. The worker concerned is 47 years old and was initially
employed on the 1st September, 1969. On the 20th January, 1984,
he received a written warning concerning his attendance record
over the previous five years (1979 to 1983). The Company allege
that he was also verbally warned from time to time between 1975
and 1983. In February, 1985, he received a further written
warning (details supplied to the Court) and when he returned to
work he was interviewed by his Superintendent and the contents of
the letter were discussed with him. On the 18th February, 1986,
he received a final written warning (the company claim that he
received this in the presence of his trade union representative
but the official concerned has no recollection of this). From the
18th February, 1986, to the 23rd September, 1986, he was absent on
five occasions (38 days certified sick leave) and he was formally
charged by the Diesel Shops' Superintendent with "persistent bad
attendance, despite various warnings". This charge was appealed
on the 9th October but the appeal failed and on the 13th October
he was issued with eight weeks' notice of dismissal. This was
also appealed and his case was heard on the 29th October by the
Manager, Rail Workshops. The claimant's union representative
objected to this member of Management hearing the case as he was
an immediate supervisor of the claimant and was therefore unlikely
to conduct an impartial appeal. The Company rejected this and
having heard the case the Manager, Rail Workshops upheld the
notice of dismissal. An ad misericordiam appeal was lodged by the
Union on the 25th November and was heard by Chief Mechanical
Engineer on the 3rd December, 1986. The claimant was advised on
the 5th December that his dismissal notice was to stand and his
employment was terminated on the 8th December, 1986.
3. In April, 1987, the claimant's case was referred to the Labour
Court under Section 20(1) of the Industrial Relations Act, 1969.
However, before the Court investigated the dispute, the case was
withdrawn and referred to the Employment Appeals Tribunal. On the
31st August, 1987, the case was considered and the Tribunal
determined that it was unable to hear the case as the claimant's
application had been received late. On the same date, the Union
submitted the case to the conciliation service of the Labour
Court. As Management declined to attend a conciliation
conference, the case was referred to the Labour Court under
Section 20(1) of the industrial Relations Act, 1969, on the 2nd
October, the Union agreeing beforehand to accept the Court's
recommendation. A Court hearing was held on the 27th November,
1987 - the earliest date suitable to all parties.
UNION'S ARGUMENTS:
4. 1. In 1972, the claimant was involved in a serious motor
accident when a C.I.E. bus crashed into the rear of his car.
He sustained some serious injuries and was out of work for a
total of fourteen months. He attended hospital regularly
during this period and returned to work on the advice and
recommendation of the Company's Chief Medical Officer. An
out-of-Court settlement was agreed between the parties in
respect of the accident which, among other things, included
an understanding that he would be employed on a continuing
basis into the future.
2. The Union contends that the appeals system as operated by
the Company denies natural justice. It objected to the
Manager, Rail Workshops, hearing the claimant's appeal as he
was an immediate supervisor and may not therefore be in a
position to conduct an impartial hearing. Furthermore, at a
meeting subsequent to the first appeal, he was present when
the Assistant Chief Mechanical Engineer made a statement to
the effect that "employees would be dismissed on bad
attendance records, regardless of medical certificates".
This seriously undermined his ability to be objective and
impartial when hearing an appeal.
3. The claimant repeatedly sought an interview with the
Company's Chief Medical Officer but this was denied, despite
this being allowed in similar circumstances with other
employees. When he eventually did gain access to the Chief
Medical Officer's office he was interviewed by an assistant
who was not familiar with his case. The Union considers this
most unsatisfactory.
4. The Company has been known to have a caring attitude
towards its employees. Such a departure in this case is
unexplainable and unacceptable. Early retirement with
diminished pension, travel concession and medical facilities
have all been denied in this case.
COMPANY'S ARGUMENTS:
5. 1. The Union has laid great emphasis on the effects of the
claimant's car accident vis-a-vis his attendance record. The
Company would like to point out that prior to this accident,
the worker concerned already had a poor attendance record.
He was appointed to the regular staff on the 10th January,
1971. Between the date of his appointment and the 7th
February, 1972 (56 weeks) he had a total of 28 weeks' absence
on medically certified illness. The Medical Department and
the Solicitors and Claims Department have confirmed that no
assurance was given to him pertaining to any future illness
and that it was contrary to the policy of these departments
to make such statements or offers. The Personnel Officer
gave no such assurance. He was certified fit and resumed
duty on the 8th October, 1973. For a period following his
resumption he was afforded the normal consideration shown to
an employee resuming after a long illness. By the 20th
December, 1973, he was performing all duties allotted to him
at the same standard as prior to his accident. In March,
1974, he applied and was restored to the overtime roster.
2. While not all of his absences were covered by medical
certificates the majority were. The point at issue is
however his obvious inability to provide a satisfactory level
of attendance. It is Company policy to adopt a caring
approach to individual employees who are ill and who have
medical problems. However, there is an onus on Management to
ensure that the operating departments are provided with
services essential to the efficient performance of their
functions so as to maintain passenger and freight services.
3. The absence of employees from work irrespective of the
reasons creates difficulties in maintaining a reliable
service. High levels of absence add considerably to costs
and in the existing financial position of the Company and the
intense competition from private operators, expenditure must
be contained in the interests of future employment. The
Company considers that he had been dealt with in a most
reasonable manner and has been afforded every opportunity to
improve his level of attendance.
4. If a worker's employment is terminated because he cannot
give good and regular attendance, it is not an unfair
dismissal even if he was genuinely ill. This position has
been upheld by the Employment Appeals Tribunal and the Labour
Court (details supplied).
5. In the letters of warning to the claimant it was pointed
out that the services of the Medical Department were
available to help him in every possible way. It was not
until October, 1986, that he availed of this facility. The
written opinion of the Medical Department which was not
favourable to him was available to the Chief Mechanical
Engineer at the Ad Misericordiam Appeal. The Company's
Medical Department confirmed that some of his complaints
existed prior to the bus accident and that on the basis of
certificates submitted by him it was unlikely that he would
ever give satisfactory service.
6. There is a provision in the Company's Welfare Scheme that
when an employee has been in receipt of sickness benefit for
a period of 26 cumulative weeks he is retired on pension. On
17th September, 1985, he received the standard advice in
writing that he had exhausted 21 of the 26 cumulative weeks.
He was also given a copy of the relevant section of the
Welfare Scheme and offered a meeting so that his position
might be explained to him. He did not request a meeting and
resumed work on 19th September, 1985. Over the next six
months he lost no days through illness. By achieving six
consecutive months without certified illness he removed
himself from the danger of being retired on ill-health (once
a member of the scheme achieves six months attendance, clear
of illness, all previous illness is disregarded for Welfare
Scheme purposes). Once clear of the danger of being retired
on ill-health the improvement in attendance was not
sustained. Over the following six months, March to September
1986, (when he was charged under the Disciplinary procedure)
he lost 38 days, all but one being certified.
7. The Union has claimed that a Shop Notice dated the 25th
October, 1985, threatened disciplinary action for
non-certified absences only. The Shop Notice referred to
draws attention to four regulations regarding absences from
work due to illness and other causes. The notice as first
issued in 1974 and has been repeated at regular intervals
since then because it has been found that when a notice is
several years old people regard it as no longer operative.
The first two paragraphs of the notice repeat the provisions
of the Welfare Scheme. The third paragraph indicates the
procedure to be adopted in seeking special leave without pay.
The fourth paragraph reminds staff that absence from duty
without permission renders an employee liable for
disciplinary action. The part of this paragraph in
parenthesis indicated that annual leave, authorised special
leave and certified illness are not regarded as absences
from duty without permission. It is clear that this document
is solely concerned with outlining the basic procedure to be
followed by employees in respect of the various categories of
absence and in defining what constitutes absence without
leave. It does not purport to deal with the position
concerning high levels of absence from work.
8. By any standard the claimant's attendance at work over a
long period was unacceptable. The Company submits that it
did not act unfairly or with undue haste in dismissing him
from the Company's service on the grounds of persistent bad
attendance. He was given ample warning and every opportunity
to improve his level of attendance. At no stage did he give
an assurance that he would improve or try to improve. In
processing the matter through the Disciplinary Machinery he
was afforded the normal procedures for representation and
consideration of his case and the safeguard of review by
higher management.
RECOMMENDATION:
6. The Court has considered the submissions made by the parties.
Because of the claimant's unavailability for work over long
periods the Court has concluded that the Company's ultimate
decision to dismiss him was not unfair. The Court, accordingly,
does not recommend concession of the Union's claim.
~
Signed on behalf of the Labour Court
11th January, 1988 Nicholas Fitzgerald
D.H./P.W. Deputy Chairman