Labour Court Database __________________________________________________________________________________ File Number: CD93116 Case Number: AD9322 Section / Act: S13(9) Parties: UNIVERSITY COLLEGE DUBLIN - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal against Rights Commissioner's recommendation No. BC119/92 concerning the refusal of the College to make a worker permanent.
Recommendation:
5. The Court has given careful consideration to all the issues
raised by the parties to this appeal.
On the basis of the medical evidence submitted, the Court is of
the view that the Rights Commissioner's Recommendation is
reasonable in the circumstances and should be upheld. The Court
accordingly rejects the appeal.
Division: Ms Owens Mr McHenry Mr Walsh
Text of Document__________________________________________________________________
CD93116 APPEAL DECISION NO. AD2293
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: UNIVERSITY COLLEGE DUBLIN
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS CONFEDERATION)
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal against Rights Commissioner's recommendation No.
BC119/92 concerning the refusal of the College to make a worker
permanent.
BACKGROUND:
2. 1. The worker has spina bifida. She was offered an
appointment with the College as a Programming Adviser in the
Computer Centre. The worker's employment began in June 4th
1990. The appointment was subject to a satisfactory medical
examination and this was completed by the College Doctor on
28th May, 1990. The Doctor's opinion was that the worker was
not suitable for a permanent and pensionable post. The Doctor
suggested that she be employed on a yearly review basis.
2. On 8th May, 1991 the College offered the worker employment
as a Programming Adviser on the basis that a satisfactory
medical report would be required on a yearly basis. The
worker's appointment had no pension entitlement and less
favourable sick-leave provisions than similar grade workers
(details supplied).
3. The worker refused to accept the offer of appointment of
8th May, 1991 and sought pensionable and permanent employment
with the College. The claim was referred to a Rights
Commissioner and an investigation took place on 20th May,
1992. The Rights Commissioner requested a Doctor's report and
the investigation was reconvened on 7th January, 1993.
4. The Rights Commissioner's Recommendation, (as follows),
issued on 22nd January, 1993.
"1. With regard to the annual medical review I recommend
that this should continue and that the matter should
be reassessed by the parties after a further three
years have lapsed.
2. Concerning sick leave entitlement I suggest that the
Employer improve his offer in order to achieve six
weeks at full pay, six weeks at half pay and six
weeks at one quarter pay. This entitlement to
operate within each rolling year.
3. With regard to pension entitlement I was very much
impressed at the evident goodwill that exists
between the parties at the degree of understanding
demonstrated by the Employer. Therefore I would
like to leave this issue on the basis that I would
expect that whenever the issue of pension does arise
that this demonstration of evident goodwill would be
converted into a tangible series of decisions".
5. The Rights Commissioner's Recommendation was appealed to
the Labour Court by letter dated 12th February, 1993 under
Section 13(9) of the Industrial Relations Act, 1969. A Labour
Court investigation took place on 22nd March, 1993 (the
earliest date suitable to both parties).
UNION'S ARGUMENTS:
3. 1. The Rights Commissioner made his Recommendation on the
basis of an incorrect medical report (details supplied). The
Union submits that the report is consequently of little value.
Spina bifida is not a degenerative or progressive disease and
the limitations imposed on physical functions do not change.
The disability is not a valid reason for discrimination in
conditions of employment between workers.
2. The worker has been offered a contract of employment with
a number of unusual conditions. In the circumstances it is
unfair and is not based on reasonable grounds. The worker's
level of disability is much less than the average for people
with this condition. She should not be discriminated against
because she belongs to a category where the average level of
disability is higher. The worker is seeking the same
entitlements as her colleagues. This is in line with the
College's own policy in this regard.
COLLEGE'S ARGUMENTS:
4. 1. The College's offer of employment to the worker was
subject to a satisfactory medical examination. The medical
examination indicated that the worker's post should be
non-pensionable and subject to yearly review. Under the terms
of its pension scheme, the College is precluded from allowing
the worker enter the scheme.
2. The College is dealing with the worker in a fair and
reasonable manner. To be appointed to a permanent,
pensionable position with the College, a satisfactory medical
examination must be completed. The College is willing to
accept the Rights Commissioner's Recommendation, including the
increased sick leave provisions. The College will look
favourably on the worker's position if and when the question
of pension arises.
DECISION:
5. The Court has given careful consideration to all the issues
raised by the parties to this appeal.
On the basis of the medical evidence submitted, the Court is of
the view that the Rights Commissioner's Recommendation is
reasonable in the circumstances and should be upheld. The Court
accordingly rejects the appeal.
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Signed on behalf of the Labour Court
Evelyn Owens
__________________
14th April, 1993 Deputy Chairman.
J.F./J.C.