Labour Court Database __________________________________________________________________________________ File Number: CD88579 Case Number: LCR12118 Section / Act: S67 Parties: AER LINGUS - and - IRISH TRANSPORT AND GENERAL WORKERS' UNION |
Claim by the Union on behalf of a worker, concerning his employment at Shannon Airport.
Recommendation:
7. The Court finds that the Company's decision to terminate the
claimants right to re-employment was based on his medical history
in 1983 and 1984, and was not unfair. On investigation of the
case it was clear to the Court that the basis of trust which would
be essential to any future employment relationship is now
incapable of being established. The Court does not therefore
recommend concession of the Union's claim.
The Court has some misgivings about the way in which subsequent
applications for re-employment were handled and recommends that he
accepts #1,000 in full and final settlement of all claims on the
Company.
Division: CHAIRMAN Mr Collins Mr Walsh
Text of Document__________________________________________________________________
CD88579 RECOMMENDATION NO. LCR12118
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 67
PARTIES: AER LINGUS
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
SUBJECT:
1. Claim by the Union on behalf of a worker, concerning his
employment at Shannon Airport.
BACKGROUND:
2. The Company employs a number of temporary operatives at
Shannon Airport every summer. These operatives are recruited on
the basis of seniority accumulated over previous years, and
appointed to permanent posts as and when they arise. The worker
here concerned was recruited in 1976. He was recalled each year
up to and including 1983, but became ill on 8th July, 1983. He
had not recovered sufficiently to return to work by the end of the
season and was subsequently released on 28th October, 1983. In
April, 1984, the Company referred the worker for medical
examination by the Company's Chief Medical Officer (C.M.O.),
before deciding whether to employ him for the 1984 season. The
worker was turned down on medical grounds. In 1985, the worker
again applied for a temporary position but was informed by
management in Shannon that the C.M.O. considered that his
condition had not changed and had decided not to examine him.
3. On 16th February, 1988, the matter was referred to the
conciliation service of the Labour Court. At a conciliation
conference on 6th April, 1988, the Company indicated that it was
prepared to offer the worker a temporary position for the 1988
season, subject to medical examination and to offer him a
permanent post subject to satisfactory performance during the
season. Following his medical examination the worker alleged that
the C.M.O. had made statements to him which indicated that
management at Shannon had been responsible for keeping him out of
a job. When the allegation came to the attention of management
the offer of employment was withdrawn on the basis that management
believed the C.M.O. would not have made such a statement. At a
further conciliation conference held on 29th June, 1988, the offer
of employment was again made by the Company, with further
conditions:-
(a) that the worker acknowledge that an accident in 1978 in
which he was involved was attributable to a medical
condition and not faulty equipment as the worker was
contending,
(b) that he acknowledge that the Company's unwillingness to
employ him since 1984, was based solely on the C.M.O.'s
report, that he was unfit.
(c) that he would be employed on a temporary basis in 1988
and 1989, this would be regarded as a probationary period
and that subject to satisfactory performance and a
medical examination at the end of the 1989 season, he
would then be offered a permanent job; and
(d) that he would be assimilated onto the new general
operatives' scale, with credit for previous service.
4. These conditions were unacceptable to the worker who could not
remember what had happened ten years ago. He also felt that he
should be re-employed at the old rates and conditions of
employment with his accumulated seniority. A further conciliation
conference was held on 5th July, 1988, but no agreement could be
reached. On 22nd July, 1988, the dispute was referred to the
Labour Court for investigation and recommendation. The Court
investigated the matter on 21st September, 1988, in Limerick.
Subsequent to the Court hearing the Court met, in confidence, with
the Company's C.M.O..
UNION'S ARGUMENTS:
5. 1. When the worker went sick in July, 1983, he was second on
the seniority list. Since then approximately 30 temporary
staff have been appointed to permanent positions. The reasons
given by the C.M.O. in May, 1984, for not recommending his
re-employment seems to be more concerned with administration
problems in Shannon rather than medical ones. The C.M.O.'s
function is to examine people from a medical point of view and
not to interpret a Company/Union Agreement on the procedure
for appointments to permanent positions.
2. The C.M.O. stated by letter on 24th May, 1984, (copy
provided to the Court), that it would be prudent to omit the
worker for the summer of 1984. Management at Shannon claim
that the C.M.O. refused to examine the worker in 1985. This
is contrary to the Company/Union Agreement. If the C.M.O. had
refused to perform his duties then the worker should have been
sent to an alternative doctor.