Labour Court Database __________________________________________________________________________________ File Number: CD92191 Case Number: LCR13781 Section / Act: S20(1) Parties: PACKARD ELECTRIC IRELAND LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Alleged unfair dismissal.
Recommendation:
5. The Court has fully considered all aspects of the case as
presented by the parties in their oral and written submissions.
In all of the circumstances the Court does not consider that the
Company acted unreasonably.
Accordingly the Court does not find in favour of the complainant.
The Court so recommends.
Division: MrMcGrath Mr McHenry Mr Walsh
Text of Document__________________________________________________________________
CD92191 RECOMMENDATION NO. LCR13781
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 20(2), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: PACKARD ELECTRIC IRELAND LIMITED
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Alleged unfair dismissal.
BACKGROUND:
2. The worker concerned commenced employment with the Company as
a production operative on the 9th June, 1975. She was dismissed
in December, 1990 on the grounds that she had been absent through
illness for more than eighteen months and was incapable of
fulfilling her contract of employment in accordance with the terms
of the Company/Union agreement. The Union claimed that the
dismissal was unfair and referred the issue to a Rights
Commissioner for investigation. The Company objected to such an
investigation. The dispute was referred to the Labour Court under
Section 20(2) of the Industrial Relations Act, 1969. Both parties
agreed to be bound by the Court's recommendation. The Court
investigated the dispute on the 1st September, 1992.
UNION'S ARGUMENTS:
3. 1. The worker concerned had an excellent employment record
between 1975 and 1986. She was absent on sick leave from
November, 1986 to April, 1987. She then returned to work.
She went on maternity leave in June, 1987 and was out until
November, 1987. At this time her doctor confirmed that she
was fit for work but in view of her overall medical situation
he recommended that she be given a 'sitting down' job. The
Company doctor also confirmed that she was fit for work,
however the Company maintained that unless the worker could
perform "the full range of duties including assembly type
work" she could not resume employment. She was not in a
position at that time to resume "normal work". She suffered
significant periods of ill health in 1988, 1989 and 1990
(details supplied to the Court).
2. In 1990 when the Company dismissed the worker she was five
months pregnant. The Union claims that the Company's action
was unfair and unjust as it failed to take account of her
pregnancy. The Union accepts that 'frustration of contract'
can result in dismissal, however the Company/Union agreement
does provide for 'consideration of the medical position'. In
the worker's case her unfitness was related to her pregnancy.
Frustration of contract could only be sustained if clear
medical evidence existed to show that in the worker's case
there was little prospect of recovery. There was every
prospect that the worker would be in a position to return to
work following the end of her pregnancy. The Employment
Appeals Tribunal has ruled that "when there is a prospect of
recovery a lengthy absence does not necessarily frustrate the
contract". The Union is seeking substantial compensation on
behalf of the worker concerned.
COMPANY'S ARGUMENTS:
4. 1. The worker concerned commenced maternity leave in June,
1987. She notified the Company that she was returning to work
on the 6th November. She did not do so and did not forward
sickness certificates. In January, 1988 she attended the
Company's medical officer and subsequently the Company was
advised that she was medically fit to return to work. She
indicated a preference for an 'off-line' or sitting job. She
was advised that the Company would not be in a position to
allow her to return unless she was fully capable of performing
all her duties. She did not return at that time and the
Company did not receive medical certificates.
2. In May, 1988, (18 months after she was due to return to
work after maternity leave) the Company, in line with the
provisions of Section 15 Clause G of the Company/Union
agreement, contacted all employees, on long term absences
including the worker concerned, with a view to terminating
their employment. Following discussions with the Unions no
dismissals were effected at that time. In November, 1990, the
Company decided to enact Clause 15 and dismiss the worker.
All procedures were strictly adhered to. Workers were advised
to attend the Company's medical advisor to determine if they
could return to work. The worker concerned attended such an
advisor and the Company was advised that there was no prospect
of her being fit for work in the foreseeable future. In all,
fourteen workers were dismissed in 1990. The case here
concerned is the only one being referred to a third party. In
cases where evidence was produced that workers would be fit,
dismissals were not effected. Some workers later returned to
work.
3. The Company's action to dismiss the worker was fair and
reasonable. She had been absent for more than three years
and had clearly frustrated her contract of employment due
to her lengthy absence. No medical evidence was provided to
show that she would be fit for the work for which she was
originally employed. The Company acted strictly in line with
procedures. The worker had clearly frustrated her contract of
employment due to her lengthy absence. Fourteen workers were
dismissed in 1990. Any concession of this claim would leave
the Company open to claims from the other thirteen.
RECOMMENDATION:
5. The Court has fully considered all aspects of the case as
presented by the parties in their oral and written submissions.
In all of the circumstances the Court does not consider that the
Company acted unreasonably.
Accordingly the Court does not find in favour of the complainant.
The Court so recommends.
~
Signed on behalf of the Labour Court
Tom McGrath
______________________
7th October, 1992 Deputy Chairman.
T.O'D./J.C.
Note
Enquiries concerning this Recommendation should be addressed to
Mr. Tom O'Dea, Court Secretary.