Labour Court Database __________________________________________________________________________________ File Number: CD91624 Case Number: AD92119 Section / Act: S13(9) Parties: HB ICE CREAM - and - MANUFACTURING SCIENCE FINANCE |
Appeal by the Union against Rights Commissioners recommendation No. B.C. 299/91 concerning the proposed redeployment of a worker on health grounds.
Recommendation:
9. Having considered the submissions made by the parties the
Court takes the view that on the basis of the medical evidence
available to him the Rights Commissioner could come to no other
conclusion nor has the Court heard any further evidence which
would persuade it to change the Recommendation, and it therefore
upholds the Rights Commissioners recommendation. The Court so
decides.
The Court further recommends that the worker accepts the terms put
to him by the Company.
Division: Mr O'Connell Mr McHenry Mr Rorke
Text of Document__________________________________________________________________
CD91624 APPEAL DECISION NO. AD11992
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: HB ICE CREAM
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
and
MANUFACTURING SCIENCE FINANCE
SUBJECT:
1. Appeal by the Union against Rights Commissioners
recommendation No. B.C. 299/91 concerning the proposed
redeployment of a worker on health grounds.
BACKGROUND:
2. The worker was employed on a seasonal basis as a van salesman
from 1986 up to November, 1988 when he was made permanent. In
September, 1990 he applied for and was appointed to the position
of sales supervisor for the midlands area for a probationary
period for 6 months.
3. In December, 1990 the worker, in the presence of his manager
and a customer, suffered from an anxiety or panic attack. The
symptoms were such that the worker thought he was having a heart
attack. The worker received medical treatment. Subsequently the
Company sought assurances from its own doctor and the workers G.P.
regarding his health. On the basis of information received, the
Company decided to extend the worker's probationary period for six
months.
4. In June, 1991 the worker again suffered another attack. He
has been absent on sick leave since then and receiving medical
treatment. He was on full pay during his absence up to October,
1991. The Company decided, because of his medical condition, not
to appoint him to midlands sales supervisor and offered him a
position as senior storeman at its Tullamore depot. The offer,
which was made in July, 1991, was rejected by the worker.
5. The Union sought to have the worker appointed as midlands
sales supervisor and referred the issue to a Rights Commissioner
for investigation and recommendation. The Rights Commissioner
investigated the dispute on 27th September, and 10th October,
1991. The worker was examined by a doctor nominated by the Rights
Commissioner. He issued the following recommendation dated 18th
November, 1991:-
"In the light of the report from Dr. Deasy I am recommending
that the Company's offer of a transfer to store be accepted.
The matter to be reviewed in twelve months time in the
context of the medical history of the worker".
The worker was referred to by name in the Rights Commissioner's
recommendation.
6. The Union appealed the recommendation to the Labour Court
under Section 13(9) of the Industrial Relations Act, 1969. A
Court hearing was held on 17th December, 1991.
UNION'S ARGUMENTS:
7. 1. The Company's reasons for terminating the worker's
position as supervisor (embarrassment with customers and
concern for his driving) are not justified as there have been
only two occasions when he felt ill whilst dealing with a
customer. He has an exemplary driving record and the Company
has been assured by more than one doctor that there is no risk
involved.
2. The worker has and is responding well to medical treatment
(details supplied to the Court).
3. The Company's offer represents a drop in salary and
status. The worker has an excellent track record in the sales
area.
4. The Company have over-reacted to the workers medical
problems. No worker can guarantee a 100% good health record.
COMPANY'S ARGUMENTS;
8. 1. In view of the medical evidence available, the Company had
no alternative in not appointing the worker to the position of
supervisor.
2. The Rights Commissioner referred the worker to one of the
most eminent occupational health consultants in the country.
His opinion is unambiguous and states that the worker would be
at risk from carrying out his job.
3. The Company has offered the worker alternative employment
in an effort to assist the worker in his particular
circumstances and which the Company hopes will help him
towards full recovery. The offer is the best which can be
made in the circumstances.
DECISION:
9. Having considered the submissions made by the parties the
Court takes the view that on the basis of the medical evidence
available to him the Rights Commissioner could come to no other
conclusion nor has the Court heard any further evidence which
would persuade it to change the Recommendation, and it therefore
upholds the Rights Commissioners recommendation. The Court so
decides.
The Court further recommends that the worker accepts the terms put
to him by the Company.
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Signed on behalf of the Labour Court
John O'Connell
___________________
9th January, 1992 Deputy Chairman.
M.D./J.C.