Labour Court Database __________________________________________________________________________________ File Number: CD91193 Case Number: AD9142 Section / Act: S13(9) Parties: GE SUPERABRASIVES IRELAND - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Union against Rights Commissioner's Recommendation No. S.T. 61/91 concerning the re-assignment of a worker.
Recommendation:
7. The Court has very carefully considered the views of both
parties to this dispute.
Given the description of the work and the attitude of the worker
to his job the Court clearly understands and sympathises with him
and with the views he expressed of the job he occupied.
Whilst accepting the evidence put forward by the doctors as to the
health of the worker concerned it is the view of the Court that it
is the Management position which must prevail.
In taking this approach the Court had to take cognisance of the
obligation of the Company, under Section 6 of the Safety, Health
and Welfare at Work Act, 1989, to ensure, so far as is reasonably
practicable the safety, health and welfare at work of all it's
employees.
Accordingly it is the decision of the Court that the worker should
accept re-assignment to the position created by the Company.
The above decision should not preclude the Company from reviewing
the situation of the worker in accordance with the recommendation
of the Rights Commissioner (i.e. before 1st March, 1992).
Division: MrMcGrath Mr Collins Mr Rorke
Text of Document__________________________________________________________________
CD91193 APPEAL DECISION NO. AD4291
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: GE SUPERABRASIVES IRELAND
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Union against Rights Commissioner's
Recommendation No. S.T. 61/91 concerning the re-assignment of a
worker.
BACKGROUND:
2. The worker concerned was employed by the Company as a
production operative in the Crib (Stores) at the Company's plant
in Clonshaugh, Dublin until 27th June, 1990. On that date the
worker fainted while at work. On his return to work three days
later the worker was examined by the locum Company doctor. The
doctor could not identify the cause of the blackout and arranged
for the worker to attend a Clinical Neurologist at the Mater
Hospital. The neurologist's view was that the worker had an
episode of acute anxiety related to his situation at work. An
E.E.G. carried out did not identify the cause of the blackout.
The Company then decided to refer the worker to an Occupational
Health Specialist. This doctor examined the worker on 20th
August, 1990 and concluded that the worker was a fit and well
controlled diabetic and fit for many duties at the plant.
However, he advised that in the interests of the safety and health
of the worker and his colleagues that he should, "...be excused
duties involving driving a forklift truck, and working in
isolation, in view of potential diabetic complications, which can
include blackouts and confused states."
3. Management then decided that on the basis of its
responsibilities under Section 6 of the Safety and Health Act,
1989 the worker should be reassigned to an alternative shift
position. The worker objected to this and stated that he did not
wish to accept an alternative position but to remain in the Crib
(Stores) and there was no medical reason why he should not remain
in that position. As a temporary arrangement the employee
concerned has been working out of the Crib on specific tasks
assigned to him by the materials manager. He is still in receipt
of his shift premium and also two 12 hour overtime shifts per
fortnight. The matter was subsequently referred to the Rights
Commissioner's Service for investigation and recommendation. A
Rights Commissioner investigated the dispute on 20th February,
1991 and issued the following recommendation -
"I recommend that the claimant accepts the position to which
he has been assigned. I do not rule out a return to his
former duties as I have considerable sympathy with him in
relation to his medical condition. Accordingly I further
recommend that provided he has a clear medical history
between now and the 1st March, 1992 that the position be
reviewed at that time. In the meanwhile I would suggest that
he involves himself totally in his new assignment and leaves
management to get on with their functions unaided."
4. On 5th April, 1991 the Union appealed the recommendation of
the Rights Commissioner to the Labour Court under Section 13(9) of
the Industrial Relations Act, 1969. The Court heard the appeal on
10th May, 1991.
UNION'S ARGUMENTS:
5. 1. The worker does not dispute that he did faint on 27th
June, 1990, however he strongly contests the justification in
preventing him from returning to his former duties, duties
which he successfully completed with immense job satisfaction
for 36 years. The worker was employed and medically approved
by the Company Doctor specifically for materials (stores)
duties, not as a production operative. The Company has based
its position on a generalised statement on diabetics taken
from a report by an "Occupational Health Specialist," whilst
completely disregarding the actual conclusions on the worker's
medical condition. Account should also be taken of the fact
that this doctor and the Company Doctor have similar
qualifications and they both attended the same part-time two
year diploma course in occupational health D.O.H. in 1988-90
(details supplied to the Court).
2. The Company's "Occupational Health Specialist's"
generalised statement on diabetics is not compatible with the
worker's established diabetes control. The inclusion of the
worker in the same category as diabetics with complications
cannot be supported medically or scientifically. Indeed, the
Company nominated diabetes consultant (expert) repudiates this
eventuality by clearly stating that the worker's diabetes is
uncomplicated (details supplied to the Court). The failure of
the "Occupational Health Specialist" to exclude diabetes as a
contributory factor in the 27th June, 1990 incident is
contrary to the opinion of various diabetes and neurologist
consultants, the Company's occupational physician and the
worker's own general practitioner (details supplied to the
Court). There is no logical reason to delay any further the
worker's return to his former duties. The Court should accept
the conclusions of the Company nominated specialist and
recommend the worker's immediate return. Alternatively, the
Court should appoint a definite date for the worker's return
to his former duties, midway between the original expectation
of 1st March, 1991 and the Rights Commissioner's review date
of 1st March, 1992.
COMPANY'S ARGUMENTS:
6. 1. The Company has adopted a fair and reasonable approach to
the worker concerned. Following the issue of the Rights
Commissioner's recommendation a meeting between the Company
and Union took place. The Company agreed to fully comply with
the terms of the recommendation. It was also agreed by both
parties that a vacancy would be created in the raw materials
section of the Materials Department into which the worker
could be assigned. In addition, the Company undertook that if
the worker's March, 1992 review was to state that he should
return to his former position the Company would find a
mechanism to allow this to take place.
2. While the Company understands that the worker may wish to
continue to work in the Crib, this is not possible. Due to
the safety and health risk, the worker can no longer continue
to operate a forklift truck or work in isolation and the
Company will not ignore its legal obligations under the Safety
and Health Act, 1989 and under common law. Two to three years
ago various issues arose in relation to the worker and
forklift driving, a series of accidents occurred which were
investigated and the worker's diabetic condition was
evaluated. The worker was allowed to continue in his position
in the Crib based on a medical report on his diabetes and on a
certificate received confirming the completion of a forklift
training course. However, the Company was extremely concerned
at that time and the recent incident makes it imperative that
the Rights Commissioner's recommendation is upheld and that
the worker is assigned to an alternative position.
DECISION:
7. The Court has very carefully considered the views of both
parties to this dispute.
Given the description of the work and the attitude of the worker
to his job the Court clearly understands and sympathises with him
and with the views he expressed of the job he occupied.
Whilst accepting the evidence put forward by the doctors as to the
health of the worker concerned it is the view of the Court that it
is the Management position which must prevail.
In taking this approach the Court had to take cognisance of the
obligation of the Company, under Section 6 of the Safety, Health
and Welfare at Work Act, 1989, to ensure, so far as is reasonably
practicable the safety, health and welfare at work of all it's
employees.
Accordingly it is the decision of the Court that the worker should
accept re-assignment to the position created by the Company.
The above decision should not preclude the Company from reviewing
the situation of the worker in accordance with the recommendation
of the Rights Commissioner (i.e. before 1st March, 1992).
~
Signed on behalf of the Labour Court
Tom McGrath
_____________________
28th May, 1991. Deputy Chairman
U.M./J.C.