Labour Court Database __________________________________________________________________________________ File Number: CD9334 Case Number: LCR14164 Section / Act: S26(1) Parties: POWER SUPERMARKETS LIMITED - and - A WORKER;THE IRISH DISTRIBUTIVE |
Alleged unfair dismissal.
Recommendation:
5. The Court has given careful consideration to the submissions
made by the parties and has also considered the medical evidence
supporting both the Union and Company positions. The Court notes,
with respect to the medical evidence, that the Company's doctor
did not examine the claimant until after he had been declared fit
to return to work.
From an industrial relations point of view, the Court considers
that a more appropriate route for the Company to have taken would
have been to issue a formal warning in the first instance,
followed by dismissal, if warranted.
The Court however cannot ignore the claimant's past record and in
particular his absence in the previous year during which time he
participated in a golf competition.
In the circumstances, the Court recommends that the Company's
"dismissal" be treated as suspension until the 31st December, 1993
and that subsequent to that date the Company agree to re-employ
the claimant at the first suitable opportunity and subject to the
normal probation period applying.
Division: Ms Owens Mr McHenry Mr O'Murchu
Text of Document__________________________________________________________________
CD9334 RECOMMENDATION NO. LCR14164
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990
PARTIES: POWER SUPERMARKETS LIMITED
TRADING AS QUINNSWORTH
and
A WORKER
(REPRESENTED BY THE IRISH DISTRIBUTIVE
AND ADMINISTRATIVE TRADE UNION)
SUBJECT:
1. Alleged unfair dismissal.
BACKGROUND:
2. The Company is based in Ennis, Co. Clare and employs a staff
of approximately 80. The worker was employed as a Goods Inward
Storeman from the 22nd of March, 1976 until his dismissal on the
11th of August, 1992. The dismissal followed monitoring of the
individual by the Company while he was on sick-leave with a "bad
back". Methods of surveillance included the use of video
equipment which recorded the worker playing golf on a number of
occasions at the Old course in Lahinch. Although the worker
appeared to have had a history of absences due to illness during
the previous number of years, the dismissal related to the
July/August period of 1992. The Company maintains that if the
worker could engage in the type of activity such as playing golf
that he could have attended his work "which is far less physically
demanding". The Company also believes that there were reasonable
grounds for concluding that the worker was guilty of malingering
for a substantial part, if not all of the period of absence from
the 22nd of June to the 27th of July, 1992.
The Union's position is that while not disputing the evidence in
relation to the worker's activities while on sick-leave, the
medical go-ahead to play golf had been given to the worker. The
Union also is of the view that the worker had been "set-up" and
that by dismissing him, the Company had acted too severely. It
also objected strongly to the Company's use of "covert
surveillance methods".
The dispute was referred to the Labour Relations Commission and a
conciliation conference was held on the 15th of October, 1992 at
which agreement was not reached. The dispute was referred to the
Labour Court on the 11th of January, 1993, in accordance with
Section 26(1) of the Industrial Relations Act, 1990. The Court
investigated the dispute, in Limerick, on the 2nd of June, 1993
( the earliest date convnient to both parties ).
During the Court hearing, the Company expressed the wish to show a
video-recording of the worker's golfing activities. Following
objections from the Union, the Court decided not to admit the
video-recording as evidence.
UNION'S ARGUMENTS:
3. 1. The Company's attempt to justify the dismissal rests on
the assertions that (i) the golfing activities engaged in by
the worker delayed his return to work and (ii) if he could
play golf, he could perform his duties at work. These
assertions are flawed. Golf is not a robust, physical sport.
It is a means of getting plenty of fresh air, especially in
Lahinch.
2. Medical evidence suggested that the degree of restriction
suffered by the worker would have allowed him to play
non-competitive golf, and that the playing of golf would not
have adversely affected his recovery or delayed his return to
work (details supplied to the Court). Conflicting evidence
resulted from the medical examination carried out by the
Company's doctor. This examination took place at a time when
the worker's recovery was advanced, though not complete.
3. The Senior Physiotherapist with the Mid-Western Health
Board, attached to Ennis General Hospital, clearly stated in
her report that the worker could play non-competitive golf as
his condition improved (details supplied to the Court).
Physiotherapy treatment commenced on the 23rd of June, 1992,
and after 10 days or so the treatment method was changed to
traction. This resulted in a marked improvement in the
worker's condition.
4. There is a substantial amount of physical effort involved
in the work of the Goods Inward Storeman. Pallets are lifted
and pulled, using a pallet truck. This work would not have
been possible for the worker with his condition.
5. It would seem that the objective of the Company was to
dismiss the worker and to justify the dismissal by
surreptitiously gathering evidence of him playing golf. The
Company was so eager that it went to great lengths, using
video cameras, photographs taken secretly and covert
observation over a period of time. These methods are not
appropriate to the proper conduct of Industrial Relations.
The Union has a grievance and disputes procedure with the
Company. Had the Company wished to handle the issue properly
it would have invoked this procedure and asked the worker
about his activities while he was on sick-leave. It could
also have referred him to the Company doctor.
6. A dispute between Howmedica Limited and the Irish
Transport and General Workers' Union concerning the dismissal
of a worker in 1989 was resolved when the Labour Court issued
Recommendation LCR 12476. The worker concerned went abroad on
holidays while on sick-leave and had medical certificates
submitted to the Company while he was out of the country. The
Labour Court, in its Recommendation decided that dismissal was
too severe a penalty and recommended reinstatement, effective
three months after the dismissal date. Likewise, the
dismissal of this worker for playing golf, is too severe.
7. The dismissal from his job has had a devastating effect on
the worker and on his family. He had 16.50 years service with
Quinnsworth in Ennis as Storeman. The Company had no reason
to complain about his performance, time-keeping or attitude to
the job. During his 16.50 years with the Company he was also
very active in Trade Union affairs for all of that time. At
the time of his dismissal he was Shop Steward and Branch
Secretary. He had been Branch Chairperson, a member of
I.D.A.T.U. National Executive Committee for 10 years and
Vice-President of the Union for a number of years. His Union
activities would not have endeared him to the Company,
especially his involvement at local level. Given his age and
a dismissal record it is likely that he will not succeed in
getting other employment.
COMPANY'S ARGUMENTS:
4. 1. If the worker was physically able to play golf at Lahinch,
as described (details supplied to the Court) he could have
also performed his duties as Storeman as these duties are not
necessarily physically demanding. This view is supported by
the Company's Occupational Health Physician (details supplied
to the Court).
2. The worker's duties were mainly supervisory and
administrative. He could have decided to opt out of
duties requiring physical input. If he was genuinely
conscientious, the worker would have returned to work and
discussed any legitimate concerns he had about physical work,
with his manager. On a previous occasion, in 1982, the worker
carried out his duties with his arm in a sling, following an
injury incurred while feeding livestock. Recently a member of
the Warehouse staff , while recovering from a hernia
operation, had the pallets pulled in by the suppliers'
drivers.
3. The worker attempted to deceive the Company. He pretended
to be barely able to walk at a time when he was playing full
rounds of golf, and carrying his own clubs. He was untruthful,
evasive and unhelpful in the Company's investigation (July,
1992), and by his actions totally undermined the Company's
confidence and trust in him.
4. The worker played a major golf tournament in Lahinch in
June, 1991. In a competition for the President's prize, at
the opening of the new clubhouse, he won the prize for the
best back-nine with a score of 21 points stableford. At the
time he was on two weeks' sick-leave due to an alleged back
complaint. The period of sick-leave extended for a further 6
weeks. This must cast serious doubts on the legitimacy of the
worker's sick-absences during previous years.
5. While on sick-leave with an alleged back-problem, the
worker ignored his responsibilities by engaging in activities
which might have delayed his return to work and by failing to
do everything in his power to expedite his return. By ignoring
his responsibilities he treated his employment, the Company's
Sick-pay Scheme and the State's Disability Scheme with
contempt. He is a mature individual, with several years of
top-level Trade Union experience. His behaviour is
inexcusable in the circumstances.
6. The Company carried out a full and fair investigation into
the matter. The worker was given full Union representation
and Management gave the matter careful consideration before
reaching its decision to dismiss him.
RECOMMENDATION:
5. The Court has given careful consideration to the submissions
made by the parties and has also considered the medical evidence
supporting both the Union and Company positions. The Court notes,
with respect to the medical evidence, that the Company's doctor
did not examine the claimant until after he had been declared fit
to return to work.
From an industrial relations point of view, the Court considers
that a more appropriate route for the Company to have taken would
have been to issue a formal warning in the first instance,
followed by dismissal, if warranted.
The Court however cannot ignore the claimant's past record and in
particular his absence in the previous year during which time he
participated in a golf competition.
In the circumstances, the Court recommends that the Company's
"dismissal" be treated as suspension until the 31st December, 1993
and that subsequent to that date the Company agree to re-employ
the claimant at the first suitable opportunity and subject to the
normal probation period applying.
~
Signed on behalf of the Labour Court
Evelyn Owens
____________________________________
3rd August, 1993. Chairman.
M.K./J.C.
Note
Enquiries concerning this Recommendation should be addressed to
Mr. Michael Keegan, Court Secretary.