Labour Court Database __________________________________________________________________________________ File Number: CD89514 Case Number: LCR12513 Section / Act: S20(1) Parties: IRISH SUGAR COMPANY LIMITED - and - IRISH TRANSPORT AND GENERAL WORKERS' UNION |
Dispute concerning the dismissal of a worker.
Recommendation:
The normal employer/employee relationship assumes regular
attendance of the employee at work while making allowance for
occasional sick absence. It does not envisage recurring absences
of significant duration arising from some inherent ailment.
In the eight years from 1980, with the exception of 1981, the
claimant has been absent from work for a number of weeks each year
because of back-trouble. In aggregate he has been absent from
work for almost 2 years of that eight years or 25% of normal
working time. This is an abnormally high level of absence
deriving as it does with annual regularity from one ailment.
In the periods between absences, the claimant has been fit for work
and has carried out his normal duties. The medical evidence now
available suggests that he may be fit for work again but does not
give a confident prognosis that his long-term pattern of recurring
difficulty will change.In the circumstances,the Court does not
consider that the Company has acted in a presipitative or
unreasonable manner. Accordingly, the Court does not uphold the
Union's request for re-instatement of the claimant.
Division: CHAIRMAN Mr Collins Mr Devine
Text of Document__________________________________________________________________
CD89514 RECOMMENDATION NO. LCR12513
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 20(1)
PARTIES: IRISH SUGAR COMPANY LIMITED
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
SUBJECT:
1. Dispute concerning the dismissal of a worker.
BACKGROUND:
2. The worker concerned, who was employed as a general operative,
had a long series of absences, beginning in 1980, due to problems
involving his back (details supplied to the Court). Following an
incident at work in May, 1985, in which he injured his back, he
instituted a compensation claim against the Company which resulted
in an out-of-Court settlement in December, 1988 (details supplied
to the Court). In January, 1989, the Company informed the Union
that on the basis of a statement made by the claimant's solicitor
during the compensation claim (in a letter dated 2nd December,
1988, the solicitor had stated "he is permanently partially
disabled and by reason thereof he is impaired in his ability to
engage in his pre-accident occupations") and because it considered
him no longer able to carry out the duties of a general operative
it would be terminating his employment in one week. Following
local level discussions it was agreed to seek a further medical
specialist's report. Upon receipt of this report the Company
terminated his employment by letter of the 16th March claiming
that the report failed to give adequate specific assurances in
regard to the claimant's future medical condition. The Union
rejected this and following further direct discussions the
following agreement emerged on the 22nd March:-
"The Company is claiming that the claimant has been dismissed
effective from 16th March, 1989. The Union is disputing this
and considers that at best he is suspended from that date.
In the meantime both sides agree that he is to be assessed by
the Company doctor as to his fitness for work with the
Company. If the doctor sees fit he will seek specialist
opinion, nominating three specialists and the worker may
select from them. In the event that he is passed fit for
work as far as the Company is concerned he will be eligible
for re-instatement but on his return to work the Company will
be raising disciplinary procedures."
The claimant duly attended the Company doctor and was subsequently
referred to a specialist of his choice. Upon receipt of this
report the Company went ahead and terminated his employment on the
grounds that it failed to pass him fit for the full range of
duties. The Union interpreted the report differently and referred
the matter to the conciliation service of the Labour Court. A
conciliation conference on the 9th June failed to resolve the
dispute. As the Company was not agreeable to having the matter
referred to the Court, the Union referred the dispute under
Section 20(1) of the Industrial Relations Act, 1969, agreeing to
be bound the Court's recommendation. A Court hearing was held on
the 28th July, 1989.
Note: Both sides submitted a comprehensive list of doctors' and
specialists' reports on the claimant.
UNION'S ARGUMENTS:
3. 1. From December, 1988, (the time his compensation claim was
settled) until his dismissal in March, 1989, the claimant was
carrying out the full range of work required of a general
operative, having received his final fitness certificate from
the Company doctor. At the time his solicitor made the
statement regarding his disability the Company made no
reference to it and seemed satisfied to allow him to continue
to do his usual work.
2. The specialist's report, dated 14th March, 1989, clearly
states that it is reasonable to allow him to continue working
as a general operative for the Company. Furthermore, this
specialist was aware of the claimant's medical history as he
had attended him before.
3. The final specialist's report dated 21st April, 1989,
gives the opinion of a guarded long term prognosis. This
supports other opinions that he is presently fit for his usual
duties (details supplied to the Court).
4. At the conciliation conference on the 9th June the Company
raised the issue of the claimant's absenteeism record since
1982. The Union objects strongly to this as the issue is
medical fitness and nothing else. In this regard three
specialists who have treated him say he is fit for work and
the Company doctor gave the final certificate for his
resumption of work. Furthermore, two referee doctors from the
Department of Social Welfare have twice certified him fit for
work and it is social welfare's view that he is fully fit for
work.
COMPANY'S ARGUMENTS:
4. 1. The Company cannot be expected to ignore the long history
of back problems affecting the claimant's availability for
work and suitability for a job as a general operative.
Neither can it ignore the medical history and series of
reports and comment on future prognosis contained therein.
2. The reports by the two specialists made in March and
April, 1989, both confirm that he is incapable of carrying out
the full range of duties which form the role of a general
operative without being a danger to himself and others. The
normal range of work undertaken by general operatives is
widespread and the duties are quite varied with a significant
amount of heavy manual duties. The Company does not have
permanent light work and due to the wideranging variations in
workload anyone unable to perform the full range of duties
would not be suitable for employment.
3. The Company considers its action in dismissing the worker
to be more than reasonable in this case.
RECOMMENDATION:
5. The normal employer/employee relationship assumes regular
attendance of the employee at work while making allowance for
occasional sick absence. It does not envisage recurring absences
of significant duration arising from some inherent ailment.
In the eight years from 1980, with the exception of 1981, the
claimant has been absent from work for a number of weeks each year
because of back-trouble. In aggregate he has been absent from
work for almost 2 years of that eight years or 25% of normal
working time. This is an abnormally high level of absence
deriving as it does with annual regularity from one ailment.
In the periods between absences, the claimant has been fit for work
and has carried out his normal duties. The medical evidence now
available suggests that he may be fit for work again but does not
give a confident prognosis that his long-term pattern of recurring
difficulty will change.In the circumstances,the Court does not
consider that the Company has acted in a presipitative or
unreasonable manner. Accordingly, the Court does not uphold the
Union's request for re-instatement of the claimant.
~
Signed on behalf of the Labour Court
Kevin Heffernan
-----------------
15th August,1989 Chairman.
D.H./J.C.