Labour Court Database __________________________________________________________________________________ File Number: CD90355 Case Number: AD9053 Section / Act: S13(9) Parties: WOCO INDUSTRIAL COMPONENTS LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Company of Rights Commissioner's Recommendation No. CW60/90 concerning the dismissal of a worker.
Recommendation:
I recommend that the Company offers and the worker
accepts the sum of #1200 in full and final settlement
of this dispute and that both parties and the Union
accept this recommendation is made without precedent on
either side".
(The worker was named in the Rights Commissioner's
Recommendation).
The Company rejected the Rights Commissioner's Recommendation and
on 20th June, 1990, appealed it to the Labour Court under Section
13(9) of the Industrial Relations Act, 1969. The Court heard the
appeal on 16th October, 1990, in Cavan.
COMPANY'S ARGUMENTS:
5. 1. The Rights Commissioner erred in concluding that the
circumstances existing in August, 1988, were not relevant to
the dismissal. The Company made every effort to contact the
worker during the period 2nd/12th August, 1988. There is
evidence that the worker was out of the country during the
period. The worker has been less than forthcoming in
providing information to the Company in respect of his
absence.
2. The relevance of this period must also be considered
against the lenient approach which the Company ultimately
chose to adopt. In view of the evidence the Company could
legitimately have chosen to take disciplinary action,
including dismissal, on foot of that period alone. This
cannot be isolated from the subsequent case history which
demonstrated the Company's willingness to give the worker
every opportunity to establish an early date of return to his
normal duties.
3. The Rights Commissioner appears to suggest the worker
was denied representation. The Company refute this. The
worker concerned had in the past acted as a shop steward for
his Union. He was fully aware of his right of representation
but chose not to exercise that right. Given that discussions
dealt to a large extent with the worker's medical condition,
the Company were satisfied that the worker was happy to
confine the discussions.
4. All substantive correspondence from the Company to the
worker was copied to the Union, without reply. Following the
Company's decision to issue notice of termination the Union
did make representations on the worker's behalf. The
procedures followed by the Company were fully in accordance
with the Company/Union Agreement.
5. The Rights Commissioner inferred that the dismissal was
not "fully fair" on technical grounds related to
representation afforded. The Company has already challenged
the issue of representation and submits that the dismissal was
fair. At no point does the Rights Commissioner suggest that
the Company's reasons for dismissing the worker were
unfounded. Furthermore, no rationale was provided for
recommending that the worker be paid #1,200, albeit without
precedent.
6. The Company believes that the worker is one hundred
percent accountable for his own dismissal.
UNION'S ARGUMENTS:
6. 1. Following the issuing of the notice of dismissal, the
union made representations on the worker's behalf but were
unable to resolve the matter. However, the parties agreed to
refer the matter to a Rights Commissioner. The recommendation
resulted from a very detailed investigation by the Rights
Commissioner.
2. The Rights Commissioner recommended he be paid a sum of
#1,200. This amount is only equal to what he would be
entitled to under the Minimum Notice and Terms of Employment
Act. As the award was made on condition that it is not
precedential, it is difficult to see what grounds the Company
can have for appealing it.
3. In view of the Rights Commissioner's finding that the
dismissal was not fully fair, the amount awarded can not be
regarded as excessive.
RECOMMENDATION:
6. Having considered the submissions of the parties, the Court
does not find grounds to alter the recommendation of the Rights
Commissioner. The Court so decides.
Division: CHAIRMAN Mr Brennan Mr Devine
Text of Document__________________________________________________________________
CD90355 APPEAL DECISION NO. AD5390
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: WOCO INDUSTRIAL COMPONENTS LIMITED
(Represented by the Federation of Irish Employers)
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Company of Rights Commissioner's Recommendation
No. CW60/90 concerning the dismissal of a worker.
BACKGROUND:
2. The worker concerned commenced employment with the Company as
a machine operator on 22nd September, 1980. Prior to a strike in
May, 1988, the Company requested Supervisors to provide a list of
annual leave times for all workers. During the course of the
strike all workers were dismissed and paid all holiday
entitlements. The worker concerned had requested annual leave for
the period 2nd to 12th August, 1988. On 3rd August, 1988 the
Company received a medical certificate dated 2nd August, 1988 for
one week on behalf of the worker due to a recurrence of duodenal
ulcer. The Company wrote to the worker requesting him to attend
the Company Doctor for an examination on 5th August, 1988. (The
Company followed the same procedure for all workers who reported
sick for weeks booked as annual leave prior to the strike). The
worker failed to attend the medical examination. A further
medical certificate for one week dated 8th August, 1988 was
received from the worker on 10th August, 1988. On 9th, 10th and
11th August, 1988, Company representatives called on the worker's
home without response. A letter was left at his home requesting
him to contact the Company as there appeared to be some evidence
that he was on holidays while certified sick. On 12th August,
1988, Company representatives observed the worker and his wife
disembarking from a plane at Sligo Airport. On 15th August, 1988,
the worker wrote to the Company stating that this Doctor had
advised him not to submit himself for examination by another
Doctor until he so advised. Also enclosed was another medical
certificate for two weeks. The worker also said that he had been
resting away from home with family.
3. The Company wrote to the worker rejecting his refusal to
attend another Doctor. He was requested to attend the Company
Doctor on 18th August and attend a meeting with the Company on
23rd August, 1988. The Company Doctor advised that the worker's
condition should not necessitate absence from work if he was on
appropriate medication. He was not taking any treatment at that
time. At the meeting with the Company on 23rd August, 1988 the
worker stated that he was only following his Doctor's advice and
that it was no concern of the Company where he was taking his
rest. He denied having been out of the country. The Company
expressed dissatisfaction with the worker's explanation of his
whereabouts for the period 2nd to 12th August 1988 and said that
its investigations would continue. Further medical certificates
were received by the Company over the following months. On 20th
September, 1989, the Company wrote to the worker advising him that
if it was his intention to return to work it would be necessary
for him to clear up to management's satisfaction his absence from
2nd to 12th August, 1988, and to get a medical report confirming
his fitness to resume work. The worker replied that he was still
certified unfit for work. The Company referred him to the Company
Doctor for a second opinion. He was then referred by the Company
Doctor to a Consultant Gastroenterologist who on 10th January,
1990 concluded there was no reason why the worker should not work.
At a meeting with the Company on 23rd January, 1990, the worker
said that he might be able to resume work if it was on a day shift
basis. The worker believed that resuming night work would result
in a set back in his condition. The Company stated that it had no
day jobs available. On 25th January, 1990, the Company wrote to
the worker, advising him of its decision to terminate his
employment for reasons of his incapacity in view of his absence
since August, 1988, and his unwillingness to resume work on the
night shift.
4. The Union made representations on the worker's behalf however,
the Company declined to withdraw the notice of termination. The
matter was subsequently referred to a Rights Commissioner for
investigation. On 11th June, 1990, the Rights Commissioner issued
the following findings and recommendation:-
"FINDINGS
I do not believe that the circumstances existing at the
time when the worker first went sick (August 1988) were
relevant to the dismissal. I do not accept the the
Company harassed him in the last 6 months of his
employment. I am not fully satisfied that the Company
effected the dismissal in a manner that was fully fair
to the worker, although representations were made
later.
RECOMMENDATION
I recommend that the Company offers and the worker
accepts the sum of #1200 in full and final settlement
of this dispute and that both parties and the Union
accept this recommendation is made without precedent on
either side".
(The worker was named in the Rights Commissioner's
Recommendation).
The Company rejected the Rights Commissioner's Recommendation and
on 20th June, 1990, appealed it to the Labour Court under Section
13(9) of the Industrial Relations Act, 1969. The Court heard the
appeal on 16th October, 1990, in Cavan.
COMPANY'S ARGUMENTS:
5. 1. The Rights Commissioner erred in concluding that the
circumstances existing in August, 1988, were not relevant to
the dismissal. The Company made every effort to contact the
worker during the period 2nd/12th August, 1988. There is
evidence that the worker was out of the country during the
period. The worker has been less than forthcoming in
providing information to the Company in respect of his
absence.
2. The relevance of this period must also be considered
against the lenient approach which the Company ultimately
chose to adopt. In view of the evidence the Company could
legitimately have chosen to take disciplinary action,
including dismissal, on foot of that period alone. This
cannot be isolated from the subsequent case history which
demonstrated the Company's willingness to give the worker
every opportunity to establish an early date of return to his
normal duties.
3. The Rights Commissioner appears to suggest the worker
was denied representation. The Company refute this. The
worker concerned had in the past acted as a shop steward for
his Union. He was fully aware of his right of representation
but chose not to exercise that right. Given that discussions
dealt to a large extent with the worker's medical condition,
the Company were satisfied that the worker was happy to
confine the discussions.
4. All substantive correspondence from the Company to the
worker was copied to the Union, without reply. Following the
Company's decision to issue notice of termination the Union
did make representations on the worker's behalf. The
procedures followed by the Company were fully in accordance
with the Company/Union Agreement.
5. The Rights Commissioner inferred that the dismissal was
not "fully fair" on technical grounds related to
representation afforded. The Company has already challenged
the issue of representation and submits that the dismissal was
fair. At no point does the Rights Commissioner suggest that
the Company's reasons for dismissing the worker were
unfounded. Furthermore, no rationale was provided for
recommending that the worker be paid #1,200, albeit without
precedent.
6. The Company believes that the worker is one hundred
percent accountable for his own dismissal.
UNION'S ARGUMENTS:
6. 1. Following the issuing of the notice of dismissal, the
union made representations on the worker's behalf but were
unable to resolve the matter. However, the parties agreed to
refer the matter to a Rights Commissioner. The recommendation
resulted from a very detailed investigation by the Rights
Commissioner.
2. The Rights Commissioner recommended he be paid a sum of
#1,200. This amount is only equal to what he would be
entitled to under the Minimum Notice and Terms of Employment
Act. As the award was made on condition that it is not
precedential, it is difficult to see what grounds the Company
can have for appealing it.
3. In view of the Rights Commissioner's finding that the
dismissal was not fully fair, the amount awarded can not be
regarded as excessive.
RECOMMENDATION:
6. Having considered the submissions of the parties, the Court
does not find grounds to alter the recommendation of the Rights
Commissioner. The Court so decides.
~
Signed on behalf of the Labour Court
Kevin Heffernan
23rd November, 1990 ------------------
B O'N/U.S. Chairman