Labour Court Database __________________________________________________________________________________ File Number: CD92171 Case Number: AD92172 Section / Act: S13(9) Parties: THERMO KING EUROPE - and - AMALGAMATED ENGINEERING UNION |
Appeal by the Union against Rights Commissioner's recommendation No. BC260/91 concerning an employee's return to work following an injury.
Recommendation:
The Court, having considered the submissions of the parties was
faced with the difficulty of dealing with conflicting medical
evidence. The most recent report by Dr Michael C. Kelly,
Consultant Rheumatologist, concludes that Thomas Keeley is fully
recovered from injuries received in an accident at work on
January 12th, 1988. Company doctor Dr. William O'Flynn and Dr.
Brendan Deasy disagree with the conclusion of Dr. Kelly.
Because of the nature of the injuries in this case, the Court is
of the view that a further medical examination by a doctor
agreed between the parties should take place in the first week
of September and if no deterioration in his condition has taken
place in the meantime, Mr. Keeley should be allowed resume his
post with Thermo King.
The Court therefore amends the Rights Commissioners
recommendation accordingly and so decides.
Division: Ms Owens Mr Brennan Mr Rorke
Text of Document__________________________________________________________________
CD92171 APPEAL DECISION NO. AD17292
INDUSTRIAL RELATIONS ACTS 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: THERMO KING EUROPE
AND
AMALGAMATED ENGINEERING UNION
SUBJECT:
1. Appeal by the Union against Rights Commissioner's
recommendation No. BC260/91 concerning an employee's return to
work following an injury.
BACKGROUND:
2. The worker suffered an injury as a result of an accident at
work in January, 1988. He was been absent since that time. He
was paid under the Company's permanent health insurance scheme
up to January, 1991 when payments were discontinued as the
insurance scheme's doctor found that the worker was no longer
totally disabled.
3. The worker applied to resume duty on the basis that his own
doctor had certified him fit for work. The Company refused to
allow him resume duty as the Company doctor (who had examined
the worker periodically since his accident) stated that he was
most unsuitable for work in an industrial environment and that
if he returned to work, even restrictive work, there was a
strong likelihood of further spinal strain.
4. The Union referred the issue to a Rights Commissioner for
investigation and recommendation. The Rights Commissioner
investigated the dispute on 11th September, 1991. The Rights
Commissioner, with the consent of the parties, referred the
worker to Dr. Brendan Deasy, occupational health consultant, for
a medical examination. On the basis of the doctor's report the
Rights Commissioner issued the following recommendation dated
19th February, 1992:
"In the light of the report from Dr. Deasy which is now to
hand I must conclude that the Company has not acted
unfairly in refusing the worker the opportunity to
recommence employment following an injury. I recommend
accordingly."
The worker was referred to by name in the Rights Commissioner's
Recommendation.
5. The Union appealed the recommendation to the Labour Court
under Section 13(9) of the Industrial Relations Acts, 1969. The
Court heard the appeal in Galway on 21st May, 1992.
UNION'S ARGUMENTS:
6. 1. The worker is fit to resume work. He has been
certified capable of work by his own doctor and by a
consultant (details supplied to the Court).
2. The worker is currently employed as a builder's
labourer (F.A.S. course) and actively partakes in sport.
3. In December, 1990 he was removed from the Company
long-term disability benefit scheme when the scheme's
doctor then indicated that he was fit for work.
COMPANY'S ARGUMENTS:
7. 1. The Company doctor who has examined the worker
periodically since his accident is of the opinion that the
worker would be unsuitable for work in an industrial
environment and that his return to work could aggravate his
injury. This view has been endorsed by the consultant who
carried out a medical examination at the behest of the
Rights Commissioner
2. The worker was removed from the Company long-term
disability benefit scheme as he was no longer totally
disabled from fulfilling his normal occupation.
DECISION:
The Court, having considered the submissions of the parties was
faced with the difficulty of dealing with conflicting medical
evidence. The most recent report by Dr Michael C. Kelly,
Consultant Rheumatologist, concludes that Thomas Keeley is fully
recovered from injuries received in an accident at work on
January 12th, 1988. Company doctor Dr. William O'Flynn and Dr.
Brendan Deasy disagree with the conclusion of Dr. Kelly.
Because of the nature of the injuries in this case, the Court is
of the view that a further medical examination by a doctor
agreed between the parties should take place in the first week
of September and if no deterioration in his condition has taken
place in the meantime, Mr. Keeley should be allowed resume his
post with Thermo King.
The Court therefore amends the Rights Commissioners
recommendation accordingly and so decides.
~
Signed on behalf of the Labour Court
Evelyn Owens
______________________
22nd June, 1992
M.D./N.Ni.M. Deputy Chairman