Labour Court Database __________________________________________________________________________________ File Number: CD93265 Case Number: AD9355 Section / Act: S13(9) Parties: CORAL LEISURE (IRELAND) LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Union against Rights Commissioner's recommendation ST142/92.
Recommendation:
5. Having fully considered the appeal of the employee and the
views expressed by the Company the Court finds that there were
adequate opportunities to resolve this matter which were not taken
up by the employee.
The Court takes the view that the complainant may perhaps have had
grounds for grievance up to the letter of 12th October and
accordingly considers that the Company should pay a lump sum as a
gesture of goodwill in the amount of #200 to the employee
concerned. With the exception of the above the Court concurs with
the recommendation of the Rights Commissioner.
The Court so decides.
Division: MrMcGrath Mr Keogh Mr Rorke
Text of Document__________________________________________________________________
CD93265 APPEAL DECISION NO. AD5593
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: CORAL LEISURE (IRELAND) LIMITED
(REPRESENTED BY THE IRISH BUSINESS EMPLOYERS CONFEDERATION)
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Union against Rights Commissioner's
recommendation ST142/92.
BACKGROUND:
2. The worker concerned commenced employment with the Company as
a cleaner in 1988. She has been out of work through illness
(diagnosed as a weakness of the wrists) since January, 1992. On
the 26th August, 1992, the Company wrote to the worker inquiring
as to when she would be fit to resume work. She indicated, by
letter dated 9th September, that she would advise the Company of
this once she had clearance from her specialist with whom she had
an appointment on 22nd September. She subsequently advised
Management by phone that she had been given the all-clear by her
specialist to resume work and would be obtaining a final cert from
her G.P. and also a "signing-off" certificate for the Department
of Social Welfare. She had a meeting with Management on the 28th
September, 1992, to discuss a possible return to work on 5th
October, 1992. She obtained a final certificate from her doctor
and "signing-off" certificate for the Department of Social
Welfare. On 30th September, the Company wrote to the claimant
advising her that before she could return to work the Company
would require a written report from her specialist as to her
medical condition. On the 5th October, 1992, the Union advised
the Company that the worker had received a certificate of fitness
from her G.P. submitted it to the Company and was available for
work on that date. The Union claimed that the Company should pay
her from 5th October. The Company reiterated its request for the
specialist's report and by letter to the claimant dated 12th
October, 1992, advised her that it was prepared to pay the costs
for her attendance at her specialist. On the 27th October, 1992,
the Union referred the claim (compensation for loss of wages
resulting from the alleged failuire of the Company to allow the
claimant return to work) to a Rights Commissioner for
investigation. On the 19th March, 1993 the Rights Commissioner
issued his recommendation as follows:
"The claimant had the opportunity to get back to work by
taking the steps which the employer proposed to her, she
chose to ignore these advices and the employer cannot be held
responsible for her loss of wages or her Social Welfare
Benefit. I recommend that the claim fails".
On the 13th April, 1993, the Union appealed the recommendation to
the Labour Court under Section 13(9) of the Industrial Relations
Act, 1969. The Court heard the appeal on the 11th May, 1993.
UNION'S ARGUMENTS:
3. 1. When the claimant was previously out of work with a
serious back complaint for almost one year, the Company
required her only to submit a medical certificate from her
doctor and final certificate to the Department of Social
Welfare. At the meeting of 28th September, Management did not
tell the worker that she would not be allowed to resume work
without the specialist's report. The worker had a certificate
from her G.P., stating that she was fit to resume work from
5th October. Before issuing this certificate her doctor had
been guided by her specialist's comments that she was fit to
return. She submitted this to the Company and also submitted
a "signing off" certificate to the Department of Social
Welfare. She was available for work from that date.
2. The Union disputes the Rights Commissioner's comment that
"the claimant made no effort to mitigate her loss by an
earlier return to work". This is unfair to the worker. She
made very effort to return on the 5th October, 1992. She
followed normal procedure by submitting a certificate from her
doctor and a "signing off" certificate to the Department of
Social Welfare. Yet she was left without wages or Social
Welfare Benefit from that date because the Company then
changed its rules and refused to let her return to work until
certain additional conditions were met. These conditions were
only added after she had become available for work.
COMPANY'S ARGUMENTS:
4. 1. At her meeting with Management on the 28th September,
1992, the possibility of the worker's return to duty on the
5th October, 1992 was discussed. During the course of this
meeting she expressed a reservation regarding the lifting of
pots of hot water. Given the nature of her illness the
Company, anxious that the worker's health and safety were of
paramount importance, decided that it would be necessary to
have a written report from her specialist regarding her
condition. The Company by letter dated 12th October, 1992,
offered to pay the cost of an appointment for the worker with
her specialist. Instead of accepting this offer the worker
through her Union referred the issue to the Rights
Commissioner. Had she availed of the Company's offer the
matter would have been resolved to the satisfaction of both
parties.
2. Management was satisfied that the worker resume her duties
as soon as a written report was received from her specialist.
The Rights Commissioner also recommended this course of action
to her but to date no such report has been received by the
Company. The Company cannot be held liable for any loss
incurred by the claimant as the Company made every effort to
facilitate her return to work.
DECISION:
5. Having fully considered the appeal of the employee and the
views expressed by the Company the Court finds that there were
adequate opportunities to resolve this matter which were not taken
up by the employee.
The Court takes the view that the complainant may perhaps have had
grounds for grievance up to the letter of 12th October and
accordingly considers that the Company should pay a lump sum as a
gesture of goodwill in the amount of #200 to the employee
concerned. With the exception of the above the Court concurs with
the recommendation of the Rights Commissioner.
The Court so decides.
~
Signed on behalf of the Labour Court
Tom McGrath
______________________
16th July, 1993. Deputy Chairman.
T.O'D./J.C.