Labour Court Database __________________________________________________________________________________ File Number: CD89169 Case Number: AD8946 Section / Act: S13(9) Parties: LAPPLE (IRELAND) LIMITED - and - IRISH TRANSPORT AND GENERAL WORKERS' UNION |
Appeal by the Union against Rights Commissioner's Recommendation No. ST 558/88 concerning the payment of sickness benefit to a worker.
Recommendation:
5. The Court having considered the submissions made by the
parties, decides that the Rights Commissioner's Recommendation be
upheld and that all the medical papers in this case should be
referred to a third doctor as recommended by the Rights
Commissioner. This doctor's opinion should be conclusive in the
matter and be accepted by both parties.
The Court so decides.
Division: Mr Fitzgerald Mr Shiel Mr Devine
Text of Document__________________________________________________________________
CD89169 APPEAL DECISION NO. AD4689
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: LAPPLE (IRELAND) LIMITED
(REPRESENTED BY THE FEDERATED UNION OF EMPLOYERS)
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
SUBJECT:
1. Appeal by the Union against Rights Commissioner's
Recommendation No. ST 558/88 concerning the payment of sickness
benefit to a worker.
BACKGROUND:
2. The worker concerned is a press operator at the Company's
plant in Carlow and on the 7th November, 1988 submitted a doctor's
certificate to the Company stating that he was suffering from
anaemia. On the 17th November, the worker was examined by the
Company doctor who certified the employee fit for work and
recommended a return to work on 21st November, 1988. The worker
returned to his own doctor who certified him unfit for work (due
to anaemia and debility) for a further week as from 21st November,
1988. The Company then indicated that it was making no further
sick payments to the worker and advised him that if he did not
return to work he would liable for dismissal. The employee
returned to work on 29th November, 1988. The Union claims that
the Company was in breach of clause 10 of the Sickness and
Accident Benefit Scheme, which stipulates that, in the event of a
dispute, a third doctor, whose opinion will be final, can be
appointed to resolve disputes of a medical nature. The Company
states that this procedure was not necessary as their doctor
conducted a clinical test for anaemia and therefore there was no
need for examination by a third doctor. The Company also stated
that the employee's sick record was double the factory average.
Local discussions failed to resolve the issue and the dispute was
referred to a Rights Commissioner for investigation and
recommendation on the 10th January, 1989. On the 16th January,
1989 the Rights Commissioner issued his recommendation as follows:
"The Company doctor's assertion that the claimants examination
did not include a blood count at any stage was strongly
denied by the Union side. In my view the claimants previous
sickness record which is running since 1984 consistently at
double the factory average, at 10%, has contributed largely
to this dispute.
The medics have disagreed, and it seems to me that only one
of their number can effectively adjudicate on the matter.
Given the claimant's previous record, I cannot in equity
recommend payment to him, even though it is quite clear that
the Company is technically in breach of clause 10. In the
circumstances, I recommend that the medical papers be
submitted to a third doctor whose opinion should be
conclusive in the matter."
The Union rejected the Rights Commissioner's recommendation and on
the 20th February, 1989 appealed it to the Labour Court under
Section 13(9) of the Industrial Relations Act, 1969. A Court
hearing was held on the 24th May, 1989.
UNION'S ARGUMENTS:
3. 1. The worker was certified unfit for work by his family
doctor. The Company requested him to attend their doctor and
he complied with this request. The Company doctor stated that
the employee was fit to resume work. The worker's own doctor
subsequently declared him unfit for work.
2. Clause 10 of the Sickness and Accident Benefit Scheme
deals very clearly and exactly with such a situation and it
was specifically included in the Scheme to cater for such a
disagreement as has arisen in this instance.
3. The Company had the option to avail of the facility under
the Scheme to determine whether or not sick pay should
continue to be paid. To cease payment before using the agreed
procedure is totally unacceptable.
4. The worker concerned is owed approximately one week's
benefit. The Union is claiming this payment and is seeking an
undertaking from the Company that Clause 10 will be referred
to in the event of doubt about the continuation of sickness
benefit payment.
COMPANY'S ARGUMENTS:
4. 1. Details of the employee's medical history have been
supplied to the Court. His medical absence during the period
1984 to 1988 represents 10% against a factory average of 5%.
The original sick cert submitted by the worker stated that he
suffered from anaemia. When examined by the Company doctor
ten days later the worker volunteered the information that a
blood count had not been part of his own doctor's examination,
and consented to a blood count on the day. The result of the
test showed that his haemoglobin level was 16.2. g/dl. The
Company doctor asserted that this result indicated that the
worker was not anaemic.
2. The Company doctor did not challenge the possibility that
the worker had previously suffered from anaemia but made the
point that his treatment had worked very quickly and
recommended a return to work. The worker however returned to
his own doctor and a further sickness certificate was
submitted to the Company. Management concluded that the
Company doctor's clinic test for anaemia gave a definite
result and could not be termed an opinion and in the light of
this conclusion they informed the worker that no further
payments would be made to him from the sick pay fund.
3. The Company contends that clause 10 (as it relates to a
third referral) does not apply because the clinical test
carried out by the Company doctor is the standard test for
anaemia. Only the Company's doctor carried out such a test
and therefore there was no clash of opinion on the result of
the test. Management concluded that the worker was fit to
resume work and no evidence was offered to contradict the
clinical test undertaken by the Company doctor.
DECISION:
5. The Court having considered the submissions made by the
parties, decides that the Rights Commissioner's Recommendation be
upheld and that all the medical papers in this case should be
referred to a third doctor as recommended by the Rights
Commissioner. This doctor's opinion should be conclusive in the
matter and be accepted by both parties.
The Court so decides.
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Signed on behalf of the Labour Court
Kevin Heffernan
__________________________
P.P. Nicholas Fitzgerald
15th June, 1989. Deputy Chairman
T.O'D./J.C.