Labour Court Database __________________________________________________________________________________ File Number: CD92194 Case Number: AD92185 Section / Act: S13(9) Parties: DUFFY MEATS - and - A WORKER |
An appeal by the worker against Rights Commissioner's recommendation No. B.C. 480/91 concerning unfair dismissal.
Recommendation:
5. Having considered the submissions of the parties, the Court
upholds the Rights Commissioner's Recommendation, subject to the
following variation.
In view of all the circumstances of the case, the Court considers
that if by 1st December, 1992 the Company is not in a position to
offer the claimant re-employment, the Company should on that date
pay the claimant a sum of #250 in full and final settlement of her
claim.
The Court expects the Company to meet the commitment given at the
hearing to issue an appropriate reference to the claimant without
delay.
The Court so decides.
Division: Mr Heffernan Mr Keogh Mr Rorke
Text of Document__________________________________________________________________
CD92194 APPEAL DECISION NO. AD18592
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: DUFFY MEATS
and
A WORKER
SUBJECT:
1. An appeal by the worker against Rights Commissioner's
recommendation No. B.C. 480/91 concerning unfair dismissal.
BACKGROUND:
2. 1. The worker commenced employment with the Company on 10th
April, 1991 following interview and a medical examination.
Her probationary period with the Company was 6 months. The
worker's employment was terminated by the Company on 8th
November, 1991 as it was unhappy with the worker's sick leave
absences (details supplied).
2. The worker referred her case for unfair dismissal to the
Rights Commissioner Service of the Labour Relations Commission
and an investigation took place on 7th February, 1992. The
Recommendation as set out below issued on 25th February, 1992.
"Having investigated the matter and having given full and
careful consideration to the points made by both parties
I have come to the following conclusions.
1. In the context of the fact that her attendance
record was below the acceptable standard it was not
unreasonable for the employer to terminate the worker's
employment on the date in question. I recommend
accordingly.
As a rider, however, I would suggest that in view of the
fact that two weeks of the absence were for demonstrably
genuine reasons that I understand are not now of a
recurring nature the Company should reconsider offering
employment in the reasonably near future to the worker
when an intake is taking place. I would also urge
the worker, should the Company accede to my suggestion,
that she should take every precaution to ensure that her
attendance is of an acceptable standard".
*The worker was named in the recommendation.
3. The Rights Commissioner's recommendation was appealed by
the worker to the Labour Court, by letter received on 2nd
April, 1992, under Section 13(9) of the Industrial Relations
Act, 1969. A Labour Court investigation took place on 28th
July, 1992 in Carlow.
WORKER'S ARGUMENTS:
3. 1. The worker is appealing the Recommendation for its
implementation. She was dismissed from the Company because of
her attendance record. The worker does not consider that the
Company doctor took into account a 10 day absence which was
non-recurring and which was explained by the worker's own
doctor (details supplied).
2. On other occasions when the worker was out sick she
attended work, but was sent home on the advice of the Company
doctor (details supplied). When the Company doctor was asked
to give an opinion of the worker's absences on 7th November,
1991, he did not contact the worker's own doctor who would
have been able to explain the worker's medical history. The
worker has not been able to secure a reference from the
Company. This has hampered her chances of securing another
job.
COMPANY'S ARGUMENTS:
4. 1. During her probationary period, the worker has been absent
from work on 4 separate occasions totalling 16 days which
accounted for 11.8% of working time. Towards the end of the
probationary period the worker was referred to the Company
doctor. The doctor could find no evidence of any medical
reason to account for the repeated absences from work (details
supplied). The Company concluded that the worker's absence
record during her probation was unacceptable and that she was
not a suitable employee for work with the Company.
2. The Company could not tolerate the worker's absence
record. In order to be totally fair to the worker, medical
advice was sought before the termination of the worker's
employment. The Company does not believe that the worker was
unfairly dismissed. The procedure adopted, which incorporated
a review of her attendance and work performance was just and
fair.
DECISION:
5. Having considered the submissions of the parties, the Court
upholds the Rights Commissioner's Recommendation, subject to the
following variation.
In view of all the circumstances of the case, the Court considers
that if by 1st December, 1992 the Company is not in a position to
offer the claimant re-employment, the Company should on that date
pay the claimant a sum of #250 in full and final settlement of her
claim.
The Court expects the Company to meet the commitment given at the
hearing to issue an appropriate reference to the claimant without
delay.
The Court so decides.
~
Signed on behalf of the Labour Court
Kevin Heffernan
____________________
7th August, 1992. Chairman
J.F./J.C.