Labour Court Database __________________________________________________________________________________ File Number: CD92538 Case Number: AD92212 Section / Act: S13(9) Parties: CADBURY IRELAND P.L.C. - and - AMALGAMATED TRANSPORT AND GENERAL WORKERS' UNION |
Appeal against Rights Commissioner's Recommendation No. B.C. 177/92 concerning the Company's refusal to allow a worker return to work.
Recommendation:
8. The Court has carefully considered the submissions made by the
parties and is quite satisfied that concession by the Company of
the Union's claim, in this particular case would be in total
conflict with the policy of flexibility of staff and the
consequent necessity to ensure individuals' fitness to accept this
liability.
The Court therefore considers that the Rights Commissioner's
recommendation is correct and should stand.
The Court so decides.
Division: Mr O'Connell Mr McHenry Mr Rorke
Text of Document__________________________________________________________________
CD92538 APPEAL DECISION NO. AD21292
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: CADBURY IRELAND P.L.C.
and
AMALGAMATED TRANSPORT AND GENERAL WORKERS' UNION
SUBJECT:
1. Appeal against Rights Commissioner's Recommendation No. B.C.
177/92 concerning the Company's refusal to allow a worker return
to work.
BACKGROUND:
2. The worker, who has 15 years service with the Company, was
employed in the Cocoa Block where his duties consisted of cleaning
and Fork-lift driving. On the 5th May, 1992 he suffered an
epileptic fit at work. He has been absent from work since due to
this condition.
3. The Union accepts, that due to the worker's condition he would
not be able to take up driving duties or operate machinery. The
Union considers that there is a suitable position available for
the worker in the Cocoa Block. This position involves cleaning
duties and arose following a reorganisation in that Department.
The Company refused to allocate the job to the worker on the
grounds that he is not fully fit to carry out the range of duties
required under the flexibility agreement and that under existing
agreements no worker has a right to any particular job.
4. The Union referred the issue to a Rights Commissioner for
investigation and recommendation. The Rights Commissioner
investigated the dispute on 1st July, 1992. The Rights
Commissioner issued the following recommendation dated 28th July,
1992.
"In the light of the above I regret I cannot recommend
concession of the claim by the Trade Union and I therefore
recommend that this claim must fail".
5. The Union appealed the Rights Commissioner's recommendation to
the Labour Court under Section 13(9) of the Industrial Relations
Act, 1969. A Labour Court hearing took place on 22nd September,
1992.
UNION'S ARGUMENTS:
6. 1. People who suffer epileptic seizures are not incapable of
carrying out a normal range of duties.
2. The position in question does not involve operating
machinery or driving.
3. There are no objections from other Unions or workers to
the worker in question being appointed to the position.
COMPANY'S ARGUMENTS:
7. 1. The Company is sympathetic to the worker's plight.
However, it is not in a position to offer him work as the
Company's doctor has advised that the worker is not fully fit
to resume work.
2. There are a number of workers on long term illness who
would see themselves in similar circumstances to the worker
concerned and would seek alternative duties if the Union's
claim was conceded.
3. Under existing agreements, jobs which become available
must be advertised among all employees and all employees must
be capable of carrying out a full range of duties.
DECISION:
8. The Court has carefully considered the submissions made by the
parties and is quite satisfied that concession by the Company of
the Union's claim, in this particular case would be in total
conflict with the policy of flexibility of staff and the
consequent necessity to ensure individuals' fitness to accept this
liability.
The Court therefore considers that the Rights Commissioner's
recommendation is correct and should stand.
The Court so decides.
~
Signed on behalf of the Labour Court
John O'Connell
_____________________
13th October, 1992. Deputy Chairman
M.D./J.C.