Labour Court Database __________________________________________________________________________________ File Number: CD88581 Case Number: LCR12012 Section / Act: S20(1) Parties: W & T AVERY LIMITED - and - MANUFACTURING SCIENCE FINANCE |
Claim by the Union on behalf of a worker for compensation for alleged unfair dismissal.
Recommendation:
5. The Court does not recommend concession of this claim.
Division: Mr O'Connell Mr Shiel Mr Devine
Text of Document__________________________________________________________________
CD88581 RECOMMENDATION NO. LCR12012
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 20(1)
PARTIES: W & T AVERY LIMITED
(REPRESENTED BY THE FEDERATED UNION OF EMPLOYERS)
and
MANUFACTURING SCIENCE FINANCE
SUBJECT:
1. Claim by the Union on behalf of a worker for compensation for
alleged unfair dismissal.
BACKGROUND:
2. The worker concerned was employed by the Company for more than
21 years as a scale-maker. In January, 1986, he was involved in
an accident which seriously damaged his left hand. He was the
only person working on a three ton dormant platform when the
accident occurred. As a result of the accident he was unable to
continue work as a scale-maker. On 19th June, 1987, he was
advised by the Company that his employment was being terminated
without notice for being in receipt of sick pay benefit under the
Company Sick Pay Scheme whilst working on a coal round from his
home address, without offering his services to the Company. On
the 25th June, 1987, the Union referred the matter to a Rights
Commissioner on the basis that the worker was unfairly dismissed.
The Rights Commissioner made a recommendation for compensation.
The Company appealed the Rights Commissioner's recommendation to
the Employment Appeals Tribunal who set aside the compensation
awarded but made no finding on the issue of the fairness of the
dismissal (EAT Determination UD720/87). On 14th July, 1988, the
Union referred the issue to the Labour Court for investigation and
recommendation under Section 20(1) of the Industrial Relations
Act, 1969. Prior to a Court hearing on 25th August, 1988, the
Company presented a written submission to the Court and advised
that they would not be in attendance. The Union agreed to be
bound by the Court's recommendation.
UNION'S ARGUMENTS:
3. 1. The injury sustained by the worker concerned is permanent
and will not permit him to return to work as a scale-maker.
There is no alternative but to seek compensation for the loss
of his job.
2. He has worked for over 21 years with the Company. When he
was dismissed he was not replaced. The Union believes that
the Company had in fact created the redundancy of one worker
at no cost. At the time of his dismissal he was not in
receipt of any benefit from the Company's Sick Pay Scheme. In
fact he had not been in receipt of any benefit from the Scheme
for over three months.
3. After 21 years' service the total money due to him from
the pension scheme is a lump sum of #1,500. In the
circumstances the Union believes it would be appropriate to
award compensation on the basis of three weeks' pay per year
of service plus suitable compensation for pension.
COMPANY'S ARGUMENTS:
4. 1. The worker's claim has already been rejected by the
Employment Appeals Tribunal. It was open to the worker to
appeal the Tribunal's Determination to the Circuit Court. He
elected not to do this.
2. During the latter part of his employment, he had a pattern
of prolonged absences from work through illness. During the
period of his most recent absence it was decided that Company
representatives would visit his home to ascertain the state of
his health and his anticipated date for returning to work. A
coal lorry was seen outside his home with the worker's family
name on the side. The worker was then observed driving this
lorry with another person, believed to be his son, to a house
in Saggart. The worker and his son proceeded to carry bags of
coal into the house. The worker then issued a receipt to the
owner of the house.
3. The worker was asked by the Company on 17th June, 1987,
about his involvement with the coal business being run from
his home. He replied it was his son's business and that he
was a director but took no active part in it and received no
income. The Company on 19th June, 1987, presented the worker
with evidence of his physical involvement in the business
during normal working hours whilst he was registered by his
doctor as sick and unable to do work. The worker said that he
was able to drive a vehicle and carry out work using his right
hand. The Company then advised the worker that his employment
was being terminated.
RECOMMENDATION:
5. The Court does not recommend concession of this claim.
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Signed on behalf of the Labour Court
John O'Connell
________________________
5th September, 1988 Deputy Chairman.
B.O'N./J.C