Labour Court Database __________________________________________________________________________________ File Number: CD93281 Case Number: AD9357 Section / Act: S13(9) Parties: IRISH COUNTRY MEATS - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal against Rights Commissioner's Recommendation S.T. 95/93 concerning alleged unfair dismissal.
Recommendation:
5. The Court having examined the views expressed by the parties
in their oral and written submissions does not find grounds to
uphold the appeal of the employer. However, the first sentence of
the Rights Commissioner's recommendation should be amended to read
as follows:
"I recommend that the claimant should get the first offer of
any position arising in the next 12 months in the grade (or in
any grade for which he is considered suitable) he previously
worked at from 1989 to 1992".
The Court so decides.
Division: MrMcGrath Mr McHenry Mr O'Murchu
Text of Document__________________________________________________________________
CD93281 APPEAL DECISION NO. AD5793
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: IRISH COUNTRY MEATS
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS CONFEDERATION)
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal against Rights Commissioner's Recommendation S.T. 95/93
concerning alleged unfair dismissal.
BACKGROUND:
2. The worker concerned commenced employment at the Company's
plant at Ballaghaderreen (formerly part of the U.M.P. Group) on
5th May, 1992, as an operative in the abattoir
On 19th September, 1992, the worker was absent on sick leave and
submitted a medical certificate to the Company. Following a short
period of sick absence, the worker was certified fit to resume
work. On receipt of the final certificate, the Company referred
the worker to the Company's doctor. The worker was examined by
the Company's doctor on 27th October, 1992, who found him unfit to
resume work. The worker's employment was terminated in December,
1992.
The Union referred the matter to a Rights Commissioner for
investigation and recommendation. On 30th March, 1993 the Rights
Commissioner recommended as follows:
"I recommend that the claimant should get first offer of any
position arising in the next 12 months in the grade he
previously worked at from 1989 to 1992. I further recommend
that he receives 20 days pay to cover from December, 1992
when he was unfairly dismissed to January, 1993 when his
termination became absolute. I also recommend that the
Company examine the question of a Minimum Notice payment
which appears to be due to him".
The Rights Commissioner's Recommendation was appealed by the
Company to the Labour Court under Section 13(9) of the Industrial
Relations Act, 1969. The Labour Court heard the appeal on 8th
June, 1993.
UNION'S ARGUMENTS:
3. 1. The Company had no complaints in relation to the worker's
attendance and work performance prior to his absence in
September, 1992.
2. The Union made every effort to get the worker back to work
but the Company refused to allow him back on the basis that
the Company's doctor had not passed him fit to resume.
3. The worker was passed fit by the Company's doctor
following a pre-employment examination on 5th May, 1992.
4. The duties of "rodding" is heavy and demanding work.
5. The worker has been unfairly dismissed. He was found
unfit for the duties of "rodding" but there are other jobs in
the factory for which he is fit to undertake.
COMPANY'S ARGUMENTS:
4. 1. At the pre-employment medical examination the worker
concerned revealed a history of a back injury, recurring pain
in his right shoulder and an injury to his right hand.
2. The worker was found to have restricted internal and
external rotation and abduction of the right shoulder and
diminished extension of the distal phalynx of the right index
finger.
3. When the worker concerned met the Company's doctor on 26th
January, 1993, the doctor explained that the same problem was
going to arise again if he went back to the job of "rodding".
4. A return to such work would clearly put the worker at risk
and the Company therefore had no option but to terminate his
contract of employment.
5. It would be against the "Health and Safety" legislation
for the Company to reinstate the worker knowing that there was
a prior medical condition which could expose the worker's
health to further risk.
6. The Rights Commissioner recommended that the worker should
get first offer of any position arising in the next 12 months
in the grade in which he previously worked from 1989 to 1992.
The Rights Commissioner is confusing the previous employer
under the old U.M.P. Group and the new employer. There is no
continuity of service. All employees of U.M.P. were made
redundant. Many of the employees were re-employed on a
day-one basis and had to go through pre-employment medicals.
7. Under no circumstances can the Company accept with the
worker having first right of refusal for any position arising
in the 12 months from the date of the Rights Commissioner's
hearing. Judging from the Company's existing medical
evidence, the worker would not be in a position to pass any
pre-employment medical and the Company could not in conscience
allow the worker concerned to return to work.
8. The question of minimum notice payment does not arise as
the Company's medical advice was to the effect that he was not
fit for work. Minimum notice is not due for employees who are
not in a position to work out their notice and the Company
would argue that this is the case given their medical
evidence.
9. One of the conditions of the worker's employment was that
he would be subject to a 12 months probationary period.
DECISION:
5. The Court having examined the views expressed by the parties
in their oral and written submissions does not find grounds to
uphold the appeal of the employer. However, the first sentence of
the Rights Commissioner's recommendation should be amended to read
as follows:
"I recommend that the claimant should get the first offer of
any position arising in the next 12 months in the grade (or in
any grade for which he is considered suitable) he previously
worked at from 1989 to 1992".
The Court so decides.
~
Signed on behalf of the Labour Court
Tom McGrath
____________________
19th July, 1993. Deputy Chairman.
F.B./J.C.