Labour Court Database __________________________________________________________________________________ File Number: CD91196 Case Number: LCR13298 Section / Act: S26(1) Parties: HOWMEDICA INTERNATIONAL INC. - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Claim by the Union for the reinstatement of a dismissed worker.
Recommendation:
5. Having considered the submissions made by the parties the
Court is of the opinion that the worker, by his behaviour over a
long period put his employment in jeopardy. The Court, largely
because the necessary mutual trust no longer exists between the
parties does not consider that reinstatement is warranted or
appropriate but it does consider that in the circumstances a
severance payment to the amount of #6,000 be paid to the worker
concerned.
The Court so recommends.
Division: Mr O'Connell Mr Brennan Mr Rorke
Text of Document__________________________________________________________________
CD91196 RECOMMENDATION NO. LCR13298
THE LABOUR COURT
INDUSTRIAL RELATIONS ACTS 1946 TO 1990
SECTION 26(1), INDUSTRIAL RELATIONS ACT 1990
PARTIES: HOWMEDICA INTERNATIONAL INC.
(Represented by the Federation of Irish Employers)
AND
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Claim by the Union for the reinstatement of a dismissed
worker.
BACKGROUND:
2. The worker concerned commenced employment with the Company on
the 30th May, 1973. He has worked for the majority of this time
as a production assistant in the production control department.
He was dismissed by the Company on the 11th January, 1991 because
Management claims he failed to return to work on the 2nd January,
1991 and was on unauthorised absence from the Company for a period
of eight days. The Company maintains that the worker was in
breach of the Company Rules and Regulations in that he failed to
submit medical certificates within the specified time limits to
cover the period of his absence. The Union claims that the worker
was dismissed in an unfair and arbitrary fashion and that the
Company has not followed the appropriate disciplinary procedures.
It also cites previous instances where workers have not been
dismissed for the late submission of medical certificates and sees
this case as a complete departure by the Company from custom and
practice. The issue could not be resolved at local level
discussions and was referred to the conciliation service of the
Labour Relations Commission on the 6th February, 1991. A
conciliation conference was held on the 8th March, 1991 but no
agreement was reached. The dispute was referred to the Labour
Court by the Labour Relations Commission on the 19th March, 1991.
The Court investigated the dispute at a hearing held in Limerick
on the 15th May, 1991.
UNION'S ARGUMENTS:
3. 1. The worker concerned has eighteen years' service and has
been secretary of the Union negotiating committee for
approximately sixteen years and held that post up to the time
of his dismissal. In his capacity as secretary of the
committee he has given invaluable assistance to the Company
on many issues.
2. On the date the worker concerned was due back to work
i.e. 2nd January, 1991 he was sick and was not in a position
to return. On the 4th January, 1991 he contacted the
supervisor in his department and reported his illness and
requested three flexible days. The supervisor advised the
worker that as he was no longer assigned to the V.D.U.
department the supervisor could not sanction the worker's
request but would see what could be done. The worker advised
the supervisor that he was going to see his doctor. At this
stage the worker understood that everything was in order as
he had contacted the Company and informed them of his absence
and the reason for it. This is the normal practice which has
never been in question before.
3. On the 7th January he went to see his doctor but left
without seeing him because of a nervous disposition he had.
On Wednesday 9th January, 1991 he again attended the doctor
and asked for a certificate dating from the previous
Wednesday 2nd January. The doctor issued the certificate
backdated to 2nd January, 1991. It was addressed to the
Personnel Department of the Company but through no fault of
the worker was not delivered. The next communication the
worker had from the Company was the letter of dismissal dated
11th January, 1991.
4. There is no precedent for anyone in this Company having
ever been suspended let alone sacked in similar cases.
During the worker's time as Section Secretary there were many
occasions when other employees had similar problems with
medical certificates. On such occasions Management
approached the worker concerned and asked him to contact
these workers to get them to send in their certificates.
none of them were suspended or sacked. The worker concerned
never received a warning of any kind, just a notice of
dismissal.
5. It is clear that the worker concerned made every effort
to contact the Company. It is clear that he was certified
unfit for work. The fact that the medical certificate was
not delivered on the due date is not the fault of the worker
concerned.
6. Article 7 of the Company/Union Agreement dealing with
Disciplinary Procedures states that "The parties agree that
the primary aim of the disciplinary procedure is to help the
individual whose performance or conduct falls below Company
requirements to achieve the necessary improvements". It
could hardly be said that a letter of dismissal, which is
exceptional in this Company considering the issue involved,
could be seen to help the individual concerned.
COMPANY'S ARGUMENTS:
4. 1. On Wednesday, 16th January, eleven days after the worker
concerned was due back to work two medical certificates were
submitted to the Company. They had been given to the Union's
chairperson by the brother of the worker concerned who had
left an envelope at the security office in the plant.
2. The first certificate was signed by a doctor on the 9th
January stating that the worker had been sick since 3rd
January and would be unfit until the 14th January. The
diagnosis was influenza. The second certificate was signed
by another doctor on the 14th January, 1991 for one week; the
diagnosis was viral infection.
3. On Thursday 17th January the worker rang the Personnel
Director stating he had been to his doctor on Friday 4th
January; his supervisor could confirm it, as he had reported
to the supervisor that he was going to see the doctor when he
rang at 4.00p.m. However, the doctor, when contacted by the
Company, confirmed that the worker concerned had not been to
see him on the 4th January. In fact, the first time the
doctor had seen the worker concerned was on the 9th January,
1991 and not as the worker had stated.
4. At a subsequent meeting between Union officers and the
Company it became apparent that the worker was deliberately
trying to mislead the Company in their investigation.
Following a second meeting and a separate meeting with the
Company's Managing Director the worker was informed that the
Company stood over its decision to dismiss him.
5. The Company does not regard the incident as coming under
the scope of Article 7 of the Company/Union Agreement. The
worker was clearly in breach of the Rules and Regulations
regarding absence from work and the submission of medical
certificates. At two subsequent meetings with the Union to
discuss the issue the worker tried to mislead the
investigation by the Company and was not able to provide a
satisfactory explanation for his absence from work.
6. The contract of employment between an employer and
employee is based on mutual trust and honesty. In this
instance the Company feels that this trust has been broken
and deliberate attempts have been made to mislead the company
by the worker concerned.
7. The overall case history of the worker concerned has
been a story of persistent lateness and periodic absence from
work. The Company cannot tolerate a situation where an
employee with problems of this nature makes no visible
attempt to rectify the situation. Since 1976 the worker has
been involved in disciplinary procedures on an intermittent
basis. His lateness and absences have been a major cause of
concern over the years. (Details of the worker's
disciplinary record supplied to the Court).
8. Following a lengthy certified absence in 1990, the
worker gave a commitment to the Managing Director that his
personal problems had been solved and he was back at work to
stay. However, after four months he was again missing from
work. On the application of the Rules and Regulations the
Company were within their rights to terminate his employment.
The Company position is further supported by Rule 11, section
(m,) which regards "false statements with regard to operation
of absenteeism and time-keeping regulations as grounds for
instant dismissal". In similar cases the Court has also
supported the view that an employer can dismiss an employee
for a breach of the Rules and Regulations on certificates and
absence from work. (LCR12213, LCR1237, AD1388 refer.)
9. The Company views the decision to dismiss the worker as
a serious one and it was taken after lengthy consideration of
the facts. The overall history of absence and lateness
together with the deliberate attempts to mislead the Company
were considered in reaching the final decision.
The actual failing by the worker to submit the appropriate
medical certificates within the required deadlines was a
serious breach of Company Rules and Regulations and warranted
the action taken by the Company.
RECOMMENDATION:
5. Having considered the submissions made by the parties the
Court is of the opinion that the worker, by his behaviour over a
long period put his employment in jeopardy. The Court, largely
because the necessary mutual trust no longer exists between the
parties does not consider that reinstatement is warranted or
appropriate but it does consider that in the circumstances a
severance payment to the amount of #6,000 be paid to the worker
concerned.
The Court so recommends.
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Signed on behalf of the Labour Court
11th June, 1991 John O'Connell
T.O'D. / M.O'C. _______________
Deputy Chairman