Labour Court Database __________________________________________________________________________________ File Number: CD89480 Case Number: LCR12476 Section / Act: S67 Parties: HOWMEDICA LTD - and - IRISH TRANSPORT AND GENERAL WORKERS UNION |
The reinstatement of one dismissed worker.
Recommendation:
5. A contract of employment places an obligation on the employee
to attend for work at the agreed times and if absent on sick
leave, to take all appropriate steps to regain fitness for work as
quickly as possible. Foreign holidays and lengthy air-flights, to
say the least, are questionable recuperative measures and it is
the Courts view that the employee acted improperly by taking such
a holiday without informing and having the agreement of the
company.
The Court also considers that it was wrong of the employee to
submit for sick pay purposes a medical certificate which stated
that he had been medically examined in Limerick when in fact he
was abroad on the day in question.
These actions of the employee were serious breaches of the
standards required in the employee/employer relationship and left
him liable to serious disciplinary action by the company.
However, the Court is of the view that dismissal is too severe a
penalty. Accordingly the Court recommends that,
- the employee be re-instated in his job as from 16th
August, 1989.
- that the period from 15th May - 15th August be regarded
as a period of suspension without pay.
- that the employee be issued a final written warning as
to his future behaviour and performance.
Division: CHAIRMAN Mr Collins Mr Devine
Text of Document__________________________________________________________________
CD89480 RECOMMENDATION NO. LCR12476
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 67
PARTIES: HOWMEDICA LTD
and
IRISH TRANSPORT AND GENERAL WORKERS UNION
SUBJECT:
1. The reinstatement of one dismissed worker.
BACKGROUND:
2. The worker concerned with this claim has been employed with
the company for seventeen years. In recent years he has worked a
blasting machine in the Hand Finish Department. On 4th May, 1989
the worker reported unfit for work due to a back injury he had
sustained while playing soccer. A medical certificate to this
effect was submitted for a period of one week from 4th May, 1989.
A further medical certificate certifying the worker as unfit for
work was received on 11th May, 1989. The worker had attended a
specialist at Limerick Regional Hospital. On 12th May, 1989, the
worker contacted his Personnel Department indicating that he would
be on sick leave for three to four weeks and querying the
possibility of arranging to have his tax rebate forwarded to his
bank. On 17th May, 1989, the company activated its sick pay
cheque arising from the Social Welfare certificate dated 11th May,
1989. In the week commencing 22nd May, 1989 it became known to
the company that the worker was in the Canary Islands. A third
medical certificate was delivered to the company on behalf of the
worker on 22nd May, 1989. The worker had not signed this
certificate. The company in confirming that the worker was in the
Canary Islands arranged to have two management representatives
attend at the airport on May 28th 1989. The worker was seen
disembarking from the plane that had arrived from the Canary
Islands. He did not report for work on Monday 29th May, 1989 but
attended for an interview with the Personnel Director that
afternoon. The worker was accompanied by a shop steward and was
advised that the entire matter of his holidaying in the Canary
Islands while on sick leave and being in receipt of monies from
sick pay schemes would be discussed before his position with the
company would be decided upon. At a meeting on 30th May, 1989,
attended by Union representatives, the worker was advised that the
company had decided to terminate his employment. This decision
was formally conveyed to the worker in a letter dated 30th May,
1989. Following a further meeting between the union and company
the dispute was referred to the Labour Court and a conciliation
conference took place on 21st June, 1989. No agreement was
reached and the union requested a Labour Court hearing. The
company agreed and the Court investigated the dispute in Limerick
on 11th July, 1989.
UNION'S ARGUMENTS:
3. 1. The company dismissed the worker on 30th May, 1989 by
process of a letter. They should have met with the Union
prior to that and formally inform them of the disciplinary
action decided. This would have given an opportunity to argue
for a mitigation of the decision prior to its implementation.
In the past, the company have always been willing, even when
an employee was dismissed, to give a second chance. This
worker is being singled out for harsh treatment and is being
made an example of.
2. The main point which comes across in the company's
letter of dismissal dated 30th May is the fact that the worker
left the country while on sick leave and that he intended to
abuse the sick pay schemes. The company did not question the
certificate of back injury and the worker did inform the
company that according to his doctor he would be absent from
work for a number of weeks. Rule seven of the sick pay scheme
states "an employee shall not engage in any remunerative
employment while in receipt of sick pay" - other than this the
scheme does not ban any particular activity. It is understood
that an individual would not act in a manner to impede his
recovery.
3. The sick pay scheme is jointly funded by employees and
the company. A committee of three workers and one management
are responsible for operating it. The worker fulfilled the
rules of the scheme, in that he was validly certified as unfit
for work. If it was felt that the scheme was abused there is
redress under the rules and this would have been the
appropriate forum at which the matter should first be
discussed.
4. The worker and his fellow-workers believe that the
penalty meted out is far too severe and is influenced by
matters other than the facts of the case. Continued refusal
to mitigate the sentence will lead to serious industrial
relations problems.
5. The effects of a dismissal are extremely serious for the
person concerned. Already his wife and family have suffered
considerably. It is quite possible he will never be employed
again, particularly with a dismissal on his record.
6. It is recognised that the company have a right to defend
its view point and honour but they have over reacted in this
instance.
COMPANY'S ARGUMENTS:
4. 1. It is clear that the worker was well aware of practice
and procedure in relation to an employee's wish to take
vacation outside the Company's normal summer shutdown period.
It is not unusual for some employees for personal and domestic
reasons to request to be allowed holidays outside this period.
This year seventeen members of the union have made holiday
arrangements outside of the plant shutdown.
2. The worker did indicate to the company on 12th May, 1989
that he would be out of work for three to four weeks. This
statement, together with the injury as described in the
medical certificate made it clear to the company that the
worker was justified in being out of work. To learn
subsequently that he was prepared to undertake an exhausting
and extensive air-flight to a holiday island and at the same
time make no effort to advise the company of his plans, is
unacceptable to the company or to any employment situation.
3. The worker was in receipt of payments from the relevant
sick pay schemes. The circumstances of the submission of the
third certificate on 22nd May gave the company considerable
cause for concern. The worker had not signed the certificate.
It is the company's view that this medical certificate was an
attempt to indicate that the worker was still in the country
and attending the hospital for treatment. The worker
conducted this affair in a pre-planned and deceptive way.
4. The company is very concerned at the worker's contention
that he did nothing wrong by going on vacation while on sick
leave. No business could operate on the basis that employees
would extend their sick pay period or use it to take holidays
with no communication with the employer.
5. The worker made no effort to contact the company either
from the Canaries or on his arrival back in the country. On
the day after his arrival home he cashed the company's sick
pay cheque. Later that afternoon, at an interview with the
Personnel Director, the worker stated that he had been in the
hospital getting a medical certificate. He did not produce
the certificate at the interview but stated that he had left
home without it and would arrange to have it delivered to the
company that afternoon. To date no certificate has been
received.
RECOMMENDATION:
5. A contract of employment places an obligation on the employee
to attend for work at the agreed times and if absent on sick
leave, to take all appropriate steps to regain fitness for work as
quickly as possible. Foreign holidays and lengthy air-flights, to
say the least, are questionable recuperative measures and it is
the Courts view that the employee acted improperly by taking such
a holiday without informing and having the agreement of the
company.
The Court also considers that it was wrong of the employee to
submit for sick pay purposes a medical certificate which stated
that he had been medically examined in Limerick when in fact he
was abroad on the day in question.
These actions of the employee were serious breaches of the
standards required in the employee/employer relationship and left
him liable to serious disciplinary action by the company.
However, the Court is of the view that dismissal is too severe a
penalty. Accordingly the Court recommends that,
- the employee be re-instated in his job as from 16th
August, 1989.
- that the period from 15th May - 15th August be regarded
as a period of suspension without pay.
- that the employee be issued a final written warning as
to his future behaviour and performance.
~
Signed on behalf of the Labour Court
Kevin Heffernan
20th July, 1989 ----------------
A.McG/U.S. Chairman