Labour Court Database __________________________________________________________________________________ File Number: CD92655 Case Number: AD9327 Section / Act: S13(9) Parties: THERMO KING EUROPE - and - AMALGAMATED ENGINEERING AND ELECTRICAL UNION |
Appeal against Rights Commissioner's Recommendation No. BC466/91 concerning the re-employment of a worker after illness.
Recommendation:
5. Having considered the submissions from the parties and
examined the evidence submitted the Court is not satisfied that
there is sufficient reason for altering the Rights Commissioner's
Recommendation.
The Court accordingly upholds the Recommendation and rejects the
appeal.
The Court so decides.
Division: Ms Owens Mr Keogh Mr O'Murchu
Text of Document__________________________________________________________________
CD92655 APPEAL DECISION NO. AD2793
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: THERMO KING EUROPE
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS CONFEDERATION)
and
AMALGAMATED ENGINEERING AND ELECTRICAL UNION
SUBJECT:
1. Appeal against Rights Commissioner's Recommendation No.
BC466/91 concerning the re-employment of a worker after illness.
BACKGROUND:
2. 1. The Company is based in Galway and employs 550 workers in
the manufacture of refrigerated equipment. The worker
concerned was employed as a general operative in January,
1986. He was involved in a serious road traffic accident in
August, 1987 and has not returned to work since that time,
(with the exception of a 3 day period).
2. The worker was informed by the Company on 4th July, 1990
that it was unable to re-employ him because of his medical
condition. The Company offered to re-consider its decision in
the future if there was an improvement in the worker's
condition. The worker was re-examined by the Company's
Occupational Health Physician on 11th November, 1991. The
physician did not recommend the re-employment of the worker,
on medical grounds.
3. The matter was referred to the Rights Commissioners'
Service for investigation and recommendation. A Rights
Commissioner's investigation took place on 27th February,
1992. The Rights Commissioner decided to seek another medical
opinion and on receipt of same, the investigation was
reconvened. The Rights Commissioner's Recommendation (as
follows) issued on 16th September, 1992.
"In the light of this report I must uphold the decision
of the Company not to re-employ, on health grounds, the
worker".
*The worker was named in the Recommendation.
4. The Recommendation was appealed to the Labour Court by the
Union by letter dated 19th October, 1992, under Section 13(9)
of the Industrial Relations Act, 1969. The Labour Court heard
the appeal in Galway on 2nd March, 1993 (the earliest date
suitable to both parties).
UNION'S ARGUMENTS:
3. 1. The worker has been examined on a number of occasions by
his medical practitioner and has been found fit to return to
work. This view was not shared by either the Company's
Physician or the Physician appointed by the Rights
Commissioner. This is in contradiction to the fact that the
worker was employed recently without difficulty by another
Company (details supplied).
2. Subsequent to the Rights Commissioner's Recommendation the
worker was examined by a Consultant Physician and
Rheumatologist. This is the second time the worker has been
examined by this Consultant. The Consultant's opinion is that
the worker is fit to return to work (details supplied). The
worker is in a difficult position in that while he has been
fit to return to work, the Company has not allowed him to
return. The worker has only been able to find work for a
short period of time, in a temporary post, with another
Company. The worker should be allowed to return to work and
should be compensated for his loss of earning due to the
Company's refusal to re-employ him.
COMPANY'S ARGUMENTS:
4. 1. There is clear medical evidence to support the Company's
decision in not allowing the worker to return to work. Under
health and safety legislation, the Company would be failing in
its duty to its employees. In particular under the terms of
the Health, Safety and Welfare at Work Act, 1990 the Company
is obliged to ensure the health and safety of its workers.
2. The Company cannot allow a worker who is at a medical
disadvantage into a job where he would be put at further risk.
If the worker was to subsequently suffer injury, the Company's
position would be untenable. The Company accepts the Rights
Commissioner's Recommendation.
DECISION:
5. Having considered the submissions from the parties and
examined the evidence submitted the Court is not satisfied that
there is sufficient reason for altering the Rights Commissioner's
Recommendation.
The Court accordingly upholds the Recommendation and rejects the
appeal.
The Court so decides.
~
Signed on behalf of the Labour Court
Evelyn Owens
______________________
20th April, 1993 Deputy Chairman.
J.F./J.C.