Labour Court Database __________________________________________________________________________________ File Number: CD90143 Case Number: LCR12889 Section / Act: S20(1) Parties: JEWISH HOME OF IRELAND - and - IRISH NURSES ORGANISATION |
Claim by the Organisation concerning the alleged unfair dismissal of a nurse.
Recommendation:
5. The Court having taken account of the submissions oral and
written and the views of the employer as in the submission
supplied finds that the complainant was unfairly treated in the
manner in which her employment was terminated.
In the circumstances the Court recommends that she be compensated
by payment of an ex gratia amount of #500.00.
Division: CHAIRMAN Mr Brennan Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD90143 RECOMMENDATION NO. LCR12889
INDUSTRIAL RELATIONS ACT 1946 TO 1976
SECTION 20(1)
PARTIES: JEWISH HOME OF IRELAND
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
AND
IRISH NURSES ORGANISATION
SUBJECT:
1. Claim by the Organisation concerning the alleged unfair
dismissal of a nurse.
BACKGROUND:
2. The Home is a private nursing home which houses approximately
35 patients, mainly heavily dependent geriatric patients. It is
staffed by a number of nurses, supported by untrained aides. The
nurse concerned was employed by the Home on 31st March, 1989. Her
letter of appointment indicated that the position was to be of a
permanent, long term nature. The nurse went on certified sick
leave suffering from back pain, attributed to the heavy lifting
required in the job. The sick leave period covered eight weeks
from 26th November, 1989, to 22nd January, 1990. During the
course of this sick leave the nurse visited the Home and asked the
Administrator to sign the Occupational Injuries Form required by
the Department of Social Welfare in order that she could receive
appropriate payments during sick leave. The Administrator refused
to sign the form and consequently she received only the normal
disability payment. The nurse was due to return to duty on 22nd
January, 1990, however, by letter dated 8th January, 1990, the
Home informed her that, with effect from 16th January, 1990, her
services would no longer be required. The Organisation says that
implicit in this letter was the contention that, following a
review, there was no longer a need for the number of nurses then
employed. The Organisation says that on 5th January, 1990, the
Home advertised in a national newspaper for full and part-time
nurses. The Organisation believes that the Home denied the nurse
due process, fair hearing or sufficient reason for the decision to
terminate her employment. The Organisation believes that the
reasons given for the termination of employment were false. The
Home denies the nurse was unfairly dismissed. The Home declined
to be party to a conciliation conference and on 20th March, 1990,
the Organisation referred the matter to the Labour Court for
investigation and recommendation under Section 20(1) of the
Industrial Relations Act, 1969. Prior to the Court's
investigation on 11th May, 1990, the Organisation agreed to be
bound by the Court's recommendation. (The Home was not
represented at the Court hearing; however, a submission on their
behalf was received by the Court).
ORGANISATION'S ARGUMENTS:
3. 1. The nurse concerned was suffering a debilitating back pain
directly attributable to the heavy lifting requirements of the
Home. Sick leave was taken on the guidance of the Sister in
Charge and complied fully with the Sick Leave Scheme in
operation at the Home. All sick leave was certified.
2. The Organisation believes that the Home, after being
presented with an Occupational Injuries Form, decided that
rather than face possible complications arising out of this
sick leave, they would terminate the nurse's employment. The
reasons given to the nurse for the termination of her
employment are at variance with their advertisement for nurses
placed in a national newspaper and are totally at variance
with verbal comments made to the Organisation that the Home
did not need full-time nurses.
3. The Organisation is concerned that a nurse can be so
wrongly and badly treated. The behaviour of the Home is
totally at variance with the principles of equity and
fairness. The Organisation seeks recognition by the Home that
the nurse was victimised by the manner in which the decision
was taken to terminate her employment during a period of sick
leave. The Organisation is claiming compensation for the
period of 3 months during which she remained unemployed
following the termination of her employment with the Home.
HOME'S ARGUMENTS:
4. 1. During the nurses employment with the Home, she was absent
on one or more working days out of every three. She was
absent for 14.5 weeks out of a total of 42 weeks.
2. During the period of her employment, the Home received a
claim for occupational injuries benefit in connection with an
alleged accident on 25th October, 1989. The nurse was not in
attendance at work on that particular day. The Home wrote to
the Department of Social Welfare to explain the situation.
The claim for occupational injuries had nothing to do with the
decision to terminate the nurse's employment.
3. The nurse's continual absences from duty put severe
pressure on the other staff and on the Home's ability to
provide proper care for its residents. The Home made the
nurse concerned aware of its dissatisfaction with her
absences. It is because of these continued absences that it
was decided to terminate her employment.