Labour Court Database __________________________________________________________________________________ File Number: CD90439 Case Number: LCR13094 Section / Act: S67 Parties: THE ODLUM GROUP - and - MARINE PORT AND GENERAL WORKERS UNION |
Dispute concerning the termination of employment of a worker.
Recommendation:
5. Following consideration of the submissions from the parties
and the additional information received from the claimant
subsequent to the hearing the Court recommends that the Company
offer and the claimant accept a sum of #1,000 in full and final
settlement of the claim before the Court.
Division: Ms Owens Mr Keogh Mr Devine
Text of Document__________________________________________________________________
CD90439 RECOMMENDATION NO. LCR13094
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 67
PARTIES: THE ODLUM GROUP
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
AND
MARINE PORT AND GENERAL WORKERS UNION
SUBJECT:
1. Dispute concerning the termination of employment of a worker.
BACKGROUND:
2. The worker concerned commenced employment with the Company in
1978 as a general worker. On 4th August, 1988 the worker was
involved in an accident in the mill, where he inhaled chlorine gas
which had leaked from a flour agitating machine. As a result of
this accident the worker developed an asthmatic condition and
instituted a claim for occupational injury against the Company.
The worker was absent from work due to illness from 1st September,
1988 to 15th November, 1988 after which he returned to his normal
duties. In November, 1989 the worker's claim against the Company
was settled (details supplied to the Court). On 15th November,
1989 the Company received a report from its insurance company
stating that the worker had provided medical evidence of asthmatic
hyper sensitivity in his lungs in support of his claim. As a
result of this the Company requested the worker to attend a doctor
in order to ascertain the effect of his working environment on his
condition. The worker attended a Company nominated doctor who
referred him to a consultant, the reports of which were forwarded
to the Company. The Company also received a medical report from
the worker's own specialist. All the doctors were of the opinion
that the worker was suffering from asthma and that his working
environment was not suitable for him to work in. Therefore, the
worker's health would be adversely affected and it would affect
his ability to carry out his duties on a regular basis. At a
meeting held on 30th May, 1990 the Company informed the worker
that on the basis of medical reports and the worker's attendance
record since November 1989, it was clear that he was no longer
capable of doing the work he was employed to do and that it had no
option but to terminate his employment with effect from 11th July,
1990. This was confirmed to the worker and Union in writing.
This was unacceptable to the Union and local level meetings took
place at which the Union claimed compensation in respect of loss
of employment, pension rights, etc. On 20th June, 1990 the
Company agreed to defer implementation of the dismissal in order
to allow the case to go through procedures. On 12th July, 1990
the matter was referred to the conciliation service of the Labour
Court. A conciliation conference was held on 17th July, 1990 at
which agreement could not be reached on the issue. The matter was
subsequently referred to the Labour Court for investigation and
recommendation. The Court investigated the dispute on 3rd
October, 1990. Additional information was received from the Union
subsequent to the hearing.
UNION'S ARGUMENTS:
3. 1. The worker was in full health up until the accident in
August, 1988 as a result of which he developed an asthmatic
condition. He is on medication and according to medical
opinion this is a condition he will have for the rest of his
life. A settlement was reached between the worker's legal
advisors and the Company Insurers based on the pain and
suffering endured by the worker. The worker's medical
condition was known to the Company and its Insurers but at no
stage was the question of his continued employment an issue
(details supplied to the Court). It was immediately following
the agreement with the Insurers and the worker that the
Company requested the worker to attend their doctor on the
basis of information received from the Insurance Company. The
worker must either be offered alternative employment outside
of his current working environment or be compensated
adequately.
COMPANY'S ARGUMENTS:
4. 1. The worker's occupational injury claim against the Company
as a result of the incident in August, 1988 was settled in
November, 1989 and the money paid was in full and final
settlement of all claims against the Company arising from the
incident. On 15th November, 1989 the Company received a
report from its insurance company stating that the worker had
provided medical evidence of asthmatic hyper sensitivity in
his lungs, in support of his claim. The Company was concerned
that such a condition would not be conducive to working in the
mill where flour dust might be present in the environment.
The Company immediately took steps to institute a thorough
investigation into the matter. The nature of this and its
possible implications were explained to the worker who agreed
to co-operate. The reports issued by each of the four doctors
involved, were unanimous in their prognosis of his medical
condition and were of the view that the worker should not
continue to work in the flour mill as this would exacerbate
his condition (details supplied to the Court). It was also
stated that the worker would almost certainly not be able to
carry out his normal duties on a regular basis. It was clear
to the Company that the worker could no longer do the work he
was employed to do and as no suitable alternative employment
was available, there was no alternative but to dismiss the
worker.