Labour Court Database __________________________________________________________________________________ File Number: CD90517 Case Number: AD9050 Section / Act: S13(9) Parties: ECCO LIMITED - and - AMALGAMATED TRANSPORT AND GENERAL WORKERS' UNION |
Appeal by the Union of Rights Commissioner's recommendation No. ST 205/90 concerning the Company's decision not to re-hire a worker.
Recommendation:
5. Having considered the submissions of the parties the Court
does not find grounds to alter the recommendation of the Rights
Commissioner particularly in view of the Company's acceptance that
the condition of Psoriasis from which he suffers will not be a
militating factor against the future employment of the claimant.
The Court so decides.
Division: CHAIRMAN Mr Brennan Mr Devine
Text of Document__________________________________________________________________
CD90517 APPEAL DECISION NO. AD5090
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: ECCO LIMITED
and
AMALGAMATED TRANSPORT AND GENERAL WORKERS' UNION
SUBJECT:
1. Appeal by the Union of Rights Commissioner's recommendation
No. ST 205/90 concerning the Company's decision not to re-hire a
worker.
BACKGROUND:
2. In January, 1988, the Company and Union arrived at an
agreement on temporary employees to reflect a 'pool' arrangement
whereby, due to the cyclical nature of the business the Company
could hire and let go workers. In a re-hire situation the Company
would re-hire from the pool on a seniority basis. The worker
hereconcerned was one of the temporary pool (39 workers in total).
A number of workers, including the worker concerned, were recalled
for a term of employment commencing on 18th January, 1988, and
terminating on 10th February, 1989. In the case of the worker
concerned he was incapacitated from 20th January, 1989, as a
result of an injury sustained at work. (A claim through the
District Court is pending). In July, 1989, the same pool of
temporary workers were re-hired. The worker concerned was unable
to exercise his option to return to work as he was still under
medical supervision for the injury sustained at work in January,
1989. In April, 1990, the worker indicated to the Company that
his Doctor had signed him fit for work and he would be available
for re-hiring. The Company informed the Union that they would not
be re-hiring the worker because an examination of his records
showed that whilst he had been employed he had suffered a serious
outbreak of Psoriasis (a skin infection).
The Union claimed that the Company have always been aware of his
skin complaint from the day he was first employed. Prior to his
employment, the Company Doctor examined him and passed him fit for
work. The Union claimed that in not re-hiring the worker the
Company was in breach of the agreement on temporary employees.
The issue was referred to a Rights Commissioner and on 31st July,
1990, the Rights Commissioner issued the following recommendation.
"It would be foolish to assume that the accident at work and
the resultant alleged injuries to the claimant's arm, hip,
spine and kidneys did not feature in the Company's decision
not to recall. In the circumstances that these injuries and
others were of such a magnitude claimed, then in my view it
was incumbent on the claimant to advise his employer of his
availability for work in certain areas of the plant. He did
not so advise and in my view justifiably lost his place on
this occasion. He can be considered on the next occasion.
Whether he can work effectively or not is a matter for the
company doctor to determine in the normal way where a doubt
exists in relation to fitness for work. In making this
recommendation I am anxious to preserve the integrity of the
Agreement for the Union which has not been breached in my
view on this occasion".
The Union rejected the Rights Commissioner's recommendation and on
23rd August, 1990, appealed it to the Labour Court under Section
13(9) of the Industrial Relation Act, 1969. The Court heard the
appeal on 16th October, 1990, in Dundalk.
UNION'S ARGUMENTS:
3. 1. Sometime after his accident, the Union advised the
worker to process a legal claim for compensation for the
injuries he sustained. This claim is currently before the
Courts. The Company should not have introduced details of the
legal case to the Rights Commissioner, nor should the Rights
Commissioner have commented upon, or dealt with it in any way.
The only issues that should have been dealt with are the
Company's decision not to re-hire the worker on the basis of
his skin complaint and the Union's view that an agreement had
been breached. The Union believe these issues became
secondary to the legal case pending.
2. The Company's original explanation for not re-hiring the
worker is invalid because the Company, through their own
Doctor, has always had on record details of his skin
complaint. This was not an issue on any of the other
occasions when he was being re-hired. When the Company did
raise it as a new concern, the Union and the worker were
prepared to provide in writing any assurances the Company
wanted regarding the skin complaint. The Company have
admitted that the worker has an excellent work record, and
that, along with the assurances given, should have been
sufficient for the Company to re-hire the worker.
3. 3. The Company were fully aware of the worker's
availability for work; however, they waited until the Union
made representations on his behalf before communicating their
decision not to re-hire him. The Union believes that the
decision not to re-hire him is because he exercised a right to
pursue a claim for industrial injuries.
4. The Union requests the Court to recommend that on the
next occasion that temporary workers are re-hired that the
worker concerned will have first recall and that his position
on the seniority list be re-established. The Court is also
requested to recommend compensation for loss of earnings from
the date of the last re-hiring to whatever date the Company
dispense with the temporary workers or until they can offer to
re-hire him.
COMPANY'S ARGUMENTS:
4. 1. Prior to re-calling temporaries in April, 1990, a
thorough examination of each individual's records was
undertaken. Each employee had been appraised on a regular
basis for attendance, quality of work, attitude etc. The
Company was anxious not to re-hire any problematic people. On
examination of the records of the worker concerned it was
noted that whilst he was employed he had suffered a serious
outbreak of Psoriasis.
2. The Company last contacted the worker in July, 1989; he
declared himself unfit for work. The Company had no further
contact with him at employment level. The Personnel
Department in April, 1990, were more au fait with the claim
which had developed from the worker's accident in January,
1989. In the circumstances the Company felt it inappropriate
to offer the worker a further period of employment.
3. The Company contends that the worker by his own actions
damaged the delicate employer/employee relationship and the
decision not to re-hire him was the correct one in the
circumstances. The Company assured the Union in April, 1990,
and have demonstrated since then by re-hiring on a seniority
basis that the integrity of the agreement stands.
4. The Company have accepted the Rights Commissioner's
recommendation and will consider the worker concerned on the
next occasion.
DECISION:
5. Having considered the submissions of the parties the Court
does not find grounds to alter the recommendation of the Rights
Commissioner particularly in view of the Company's acceptance that
the condition of Psoriasis from which he suffers will not be a
militating factor against the future employment of the claimant.
The Court so decides.
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Signed on behalf of the labour Court
Kevin Heffernan
19th November, 1990 ----------------
B O'N/U.S. Chairman