Labour Court Database __________________________________________________________________________________ File Number: CD92158 Case Number: AD92173 Section / Act: S13(9) Parties: THERMO KING EUROPE - and - AMALGAMATED ENGINEERING UNION |
Appeal by the Union against Rights Commissioner's Recommendation No. BC398/91 concerning the return to work of an employee following an injury.
Recommendation:
The Court, having considered the submissions of the parties, was
faced with considerable difficulty in dealing with the
conflicting medical evidence. However, the most recent medical
report from Dr. Dominick Cooke, Consultant Physician and
rheumatolagist, is most compelling in that it states in clear
and unambiguous terms that Mr. Michael Murphy is totally fit to
resume work. While Dr. Deasy and Dr. O'Flynn disagree that Mr.
Murphy is fit to take up his position again with the Company,
there is nothing in their reports to disagree with Dr. Cooke's
conclusion that the man has totally recovered from the injuries
received in the car crash which took place in 1987. It is the
view of the Court that Michael Murphy is fit to resume his
duties with Thermo King.
The Court accordingly upholds the appeal and so decides.
Division: Ms Owens Mr Brennan Mr Rorke
Text of Document__________________________________________________________________
CD92158 APPEAL DECISION NO. AD17392
INDUSTRIAL RELATIONS ACTS 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: THERMO KING EUROPE
(Represented by the Federation of Irish Employers)
and
AMALGAMATED ENGINEERING UNION
SUBJECT:
1. Appeal by the Union against Rights Commissioner's
Recommendation No. BC398/91 concerning the return to work of an
employee following an injury.
BACKGROUND:
2. The worker suffered serious neck and back injuries as a
result of a road accident in 1987. He has been absent from work
on sick leave since that time. On the basis of his doctor's
report the worker sought to resume duty. The Company refused to
allow him resume duty as in the opinion of the Company's doctor,
the worker is still unfit for work.
3. The Union considered that the Company was treating the
worker unfairly and referred the matter to a Rights Commissioner
for investigation and recommendation. The Rights Commissioner
investigated the dispute on 11th September, 1991 following
which, with the consent of the parties, he requested Dr. Brendan
Deasy, occupational health consultant, to examine the worker.
On the basis of Dr Deasy's report the Rights Commissioner issued
the following recommendation dated 19th February, 1992:
"In accordance with this report I must come to the
conclusion that the Company has not acted unfairly towards
the worker in denying him an opportunity to return to work
following an injury. I recommend accordingly."
The worker was referred by name in the Right's Commissioners
Recommendation.
4. The Union appealed the Recommendation to the Labour Court
under Section 13(9) of the Industrial Relations Act, 1969. The
Court heard the appeal in Galway on 21st May, 1992.
UNION'S ARGUMENTS:
5. 1. The worker is employed as a storeman which is a job
that is not physically demanding.
2. The worker's doctor has certified him fit for work as
has a consultant physician who examined him on 20th March,
1992. (details supplied to the Court).
3. The worker cannot benefit from the Company's long term
disability benefit scheme because he has not been declared
permanently disabled.
COMPANY'S ARGUMENTS:
6. 1. Since the worker's accident he has been periodically
examined by the Company doctor who is of the opinion that
the worker is unfit to resume duty and that if he did
return he would be likely to suffer further spinal strain.
2. It would be remiss of the Company to allow the worker
resume duty while unfit. This view has been endorsed by
the Right's Commissioner's recommendation.
DECISION:
The Court, having considered the submissions of the parties, was
faced with considerable difficulty in dealing with the
conflicting medical evidence. However, the most recent medical
report from Dr. Dominick Cooke, Consultant Physician and
rheumatolagist, is most compelling in that it states in clear
and unambiguous terms that Mr. Michael Murphy is totally fit to
resume work. While Dr. Deasy and Dr. O'Flynn disagree that Mr.
Murphy is fit to take up his position again with the Company,
there is nothing in their reports to disagree with Dr. Cooke's
conclusion that the man has totally recovered from the injuries
received in the car crash which took place in 1987. It is the
view of the Court that Michael Murphy is fit to resume his
duties with Thermo King.
The Court accordingly upholds the appeal and so decides.
~
Signed on behalf of the Labour Court
Evelyn Owens
_____________________
22nd June, 1992
M.D./N.Ni.M. Deputy Chairman