LCR12579

Subject:
Alleged failure of the Company to recognise its responsibilities to an employee who retired on medical grounds.

Recommendation:
6. Having given detailed consideration to the evidence presented
in this case, the Court is of the view that the claimant's
sick-leave record and medical history over many years was such as
to justify the Company seeking his retirement on ill-health
grounds. His record right up to the end of his employment gave no
indication of an improving situation nor was there a basis for
assuming that a transfer of work-location would effect a
transformation. In these circumstances, the claimant's request
for early retirement on grounds of ill-health simply obviated the
need for the Company to initiate such a process. Therefore the
Court does not recommend that he be re-employed.

It is clear to the Court from this case that the grounds for
ill-health retirement used by the RTE Pensions Fund may differ
from those accepted by the Permanent Health Insurance Scheme and
this can have significant consequences for the retiree. The
Company was aware of this situation and in its letter of the 12th
December, 1985 brought it to the notice of the claimant in a
somewhat oblique fashion. Although the Company met its obligation
to advise the claimant of the terms of his retirement, it seems to
the Court that having regard to the past circumstance of this case
some additional emphasis might have been placed on the conditions
governing the Permanent Health Insurance Scheme. Had such been
done, the expectations of the claimant of receiving a pension from
the scheme would certainly have been lessened. As matters stood,
he clearly assumed, albeit without adequate grounds, that he would
automatically qualify for the pension.

The Court regards this case as having many unusual elements which
make it unique. Therefore, while not ascribing any particular
responsibility to the Company, the Court nevertheless recommends
that the Company make the claimant an "ex-gratia" payment of
#3,000 solely on compassionate grounds.

Division: CHAIRMAN Mr Shiel Mr Walsh

Text of Document__________________________________________________________________

CD89330 RECOMMENDATION NO. LCR12579

INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 20(1)


PARTIES: RADIO TELEFIS EIREANN
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION



SUBJECT:
1. Alleged failure of the Company to recognise its
responsibilities to an employee who retired on medical grounds.

BACKGROUND:
2. The worker concerned was employed as a technician grade B at
the Company's Mount Leinster Transmitter from October, 1962 to
March, 1986, when he retired on health grounds. He has suffered
from a serious illness for many years (details supplied to the
Court) and following major surgery in 1985 he was advised by his
surgeon that a return to Mount Leinster would not be in his best
interest given its isolated location. He subsequently sought a
transfer to another location but this was turned down. Following
a meeting with Personnel in December, 1985, the claimant sought
details of the amounts due if he retired on health grounds. In a
letter dated the 12th December, the Company outlined details of
the money he would receive. As well as setting out the amounts
due under the provisions of the normal pension scheme the letter
also gave details of amounts available under the Salary
Protection Plan (subject to approval by Irish Life Insurance
assessors). On the basis of this information he opted to retire
on health grounds and proceeded to obtain the appropriate medical
certification (details supplied to the Court). He retired from
work on the 3rd March, 1986.

3. On the 9th July, 1986, the Irish Life Insurance Company,
having referred the case to its own medical assessment, advised
that the medical evidence supplied did not support a claim of
total disablement. Following several local level meetings the
Union requested the Company to submit an appeal on the claimant's
behalf (the Union had previously lodged appeals but had
encountered difficulties in having them dealt with - details
supplied to the Court). RTE lodged the appeal in January, 1989,
which was subsequently rejected. The Union then attempted to have
the matter referred to a Rights Commissioner or the Labour Court
but the Company was not agreeable. On the 9th May, 1989, the
Union referred the matter to the Labour Court under Section 20(1)
of the Industrial Relations, Act, 1969, agreeing beforehand to be
bound by the Court's recommendation. A Court hearing on the 20th
July, 1989, was adjourned and resumed on the 31st July.

UNION'S ARGUMENTS:
4. 1. The manner in which the Company dealt with both the
question of the claimant's illness and the operation of the
provisions of the salary protection plan have raised serious
questions about the attitude of Management to those members of
staff who may from time to time need some support.

2. Management dealt with the claimant's illness in a manner
that was nothing short of callous. He had 23 years service
but when he applied for a transfer to a ground job for medical
reasons (a transfer suggested and supported by his surgeon)
it was turned down, despite the fact that such jobs were
available in Waterford and Dublin.

3. From the letter of the 12th December, 1985, it is clear
that the income from the salary protection plan was in excess
of that which the normal pension plan would provide and this
had a major influence on his decision to apply for early
retirement. Management has argued that this was "subject to
the approval by Irish Life Insurance assessor". While this is
not contested by the claimant, his decision however was made
on the basis of the conversation that took place in December
with the Director of Personnel. For him to apply for early
retirement on the basis of the letter without the assurances
he maintains he had been given would be nothing short of
lunacy, particularly as he was to be retired before a decision
on the protection plan being effected was made.

4. The salary protection plan which has been in operation
within the Company for some years was introduced to give a
certain level of protection to the staff should they be faced
with the prospect of early retirement. In this case the plan
did not operate as it was designed. The decision by
Management to retire the claimant on ill health was done on
the basis of medical evidence, evidence which was monitored by
Management's own medical adviser.

5. The scheme is operated on an "opt-out" basis, namely if
one does not indicate that one does not wish to participate in
the scheme, deductions are automatically made from salary.
The claimant therefore felt that there would be no problem
once Management made the decision to retire him.

6. The decision to retire him was made on the basis of
medical evidence showing that he could not fulfil his duties
at the Mount Leinster Transmitter, not that he was unable to
perform duties and yet the Insurance company took the view
that the medical evidence did not warrant payments as he was
not disabled.

4. 7. The claimant is of the view that the failure of the
Company to grant him his transfer was wrong and therefore he
should return to work at a new location. This is compounded
by the failure of Management to ensure that the provisions of
the salary protection plan were effected prior to his
retirement.

COMPANY'S ARGUMENTS:
5. 1. The claimant proved to be a difficult and costly
employee throughout the 26 years of his employment. His
absence level averaged 71 days per year during the last 9
years leading up to ill-health retirement (details supplied to
the Court).

2. He had been given ample warnings and opportunity through
the years, to undergo appropriate treatment and to achieve an
acceptable standard of work performance and attendance.

3. The Company having considered these matters, concluded,
in late 1985, that he was unlikely to achieve that standard
and that his employment should be terminated. In the event he
applied for ill-health retirement under the RTE Superannuation
scheme and supplied medical evidence to the effect that he was
suffering from a severely damaged pancreas which would prevent
him from carrying out his normal duties.

4. The Company has acted with reason and concern at all
times in dealing with the claimant. In agreeing to allow him
to retire on the grounds of ill-health, the Company had to
take into account the degree of deterioration of skill and/or
health and the belief that continued working would accelerate
that deterioration, the hardship on the individual concerned
and the concern in regard to the safety and health of both he
and his colleagues on the Mount Leinster's location.

5. In facilitating him as regards ill health retirement the
Company was quite explicit in highlighting the fact that any
income under the Permanent Health Insurance scheme was subject
to the approval of the Irish Life Assessors. Management has
no function in the determination of this matter and he was
fully aware of this.

6. The Company has on all occasions treated the claimant in
a most fair and humane manner and strongly reject that it
failed to recognise its responsibilities to him.

RECOMMENDATION:

6. Having given detailed consideration to the evidence presented
in this case, the Court is of the view that the claimant's
sick-leave record and medical history over many years was such as
to justify the Company seeking his retirement on ill-health
grounds. His record right up to the end of his employment gave no
indication of an improving situation nor was there a basis for
assuming that a transfer of work-location would effect a
transformation. In these circumstances, the claimant's request
for early retirement on grounds of ill-health simply obviated the
need for the Company to initiate such a process. Therefore the
Court does not recommend that he be re-employed.

It is clear to the Court from this case that the grounds for
ill-health retirement used by the RTE Pensions Fund may differ
from those accepted by the Permanent Health Insurance Scheme and
this can have significant consequences for the retiree. The
Company was aware of this situation and in its letter of the 12th
December, 1985 brought it to the notice of the claimant in a
somewhat oblique fashion. Although the Company met its obligation
to advise the claimant of the terms of his retirement, it seems to
the Court that having regard to the past circumstance of this case
some additional emphasis might have been placed on the conditions
governing the Permanent Health Insurance Scheme. Had such been
done, the expectations of the claimant of receiving a pension from
the scheme would certainly have been lessened. As matters stood,
he clearly assumed, albeit without adequate grounds, that he would
automatically qualify for the pension.

The Court regards this case as having many unusual elements which
make it unique. Therefore, while not ascribing any particular
responsibility to the Company, the Court nevertheless recommends
that the Company make the claimant an "ex-gratia" payment of
#3,000 solely on compassionate grounds.
~


Signed on behalf of the Labour Court

Kevin Heffernan
28th September, 1989 ----------------
D.H./U.S. Chairman