Labour Court Database __________________________________________________________________________________ File Number: CD93322 Case Number: LCR14154 Section / Act: S26(1) Parties: FULFLEX INTERNATIONAL LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Dismissal of a worker.
Recommendation:
5. The Court has fully considered all of the issues raised by the
parties in their oral and written submissions. The Court finds
that an employer may be held to have breached his duty to take
reasonable care of his employees if, disregarding medical opinion,
an employee is continued in employment and is subsequently
injured.
Accordingly given all the circumstances of this case the Court
finds that the action of the employer in dismissing the
complainant was not unreasonable.
The Court notes that the Company, in a severance payment, as a
gesture of goodwill included an amount of #2,500. With a view to
bring this matter to a final conclusion the Court would recommend
that this amount be increased to #5,000.
The Court so recommends.
Division: MrMcGrath Mr Brennan Mr O'Murchu
Text of Document__________________________________________________________________
CD93322 RECOMMENDATION NO. LCR14154
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990
PARTIES: FULFLEX INTERNATIONAL LIMITED
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Dismissal of a worker.
BACKGROUND:
2. The worker concerned commenced employment with the Company in
1976. He sustained a back injury in 1989 during the course of his
duties as a warehouse operator in the shipping department and was
out of work for approximately ten weeks. The worker resumed duty
having received a final certificate of fitness from his doctor.
His occupational injuries claim against the Company was settled in
October, 1992. In January, 1993, the Company, on the advice of
its solicitors, decided that the worker would be required to
undergo a medical examination by an occupational health consultant
to ascertain if he was fully fit to undertake his duties in the
shipping department. The examination took place on 1st February,
1993. The specialists report concluded that the worker was not
fit to carry out his normal duties. Following Union
representations the worker underwent a further medical examination
by another specialist who confirmed the diagnosis of the first
specialist. The worker was dismissed on the 10th March, 1993.
The Union claimed that he was unfairly dismissed. The issue was
referred to the Labour Relations Commission and a conciliation
conference was held on the 18th March, 1993. As no agreement was
reached the dispute was referred to the Labour Court on the 3rd
May, 1993. A Court hearing was held on the 28th June, 1993.
UNION'S ARGUMENTS:
3. 1. The worker concerned has performed his normal duties in
the shipping department for the past four years. He has an
excellent attendance record and has carried out all
instructions given to him in relation to his duties during
this time. An eminent orthopaedic surgeon carried out a
comprehensive medical examination of the worker and confirmed
that he is fully fit to carry out his normal work.
2. The Health and Safety legislation was never intended to be
used to terminate a worker's employment. In the past the
Company has allowed employees who had sustained injury to
return to work and in many instances facilitated them with
transfers to lighter duties. The worker concerned is
requesting no such treatment, only to be allowed to do his
normal duties which he has done for the past four years.
Other employees have not been subjected to the same medical
examinations as the worker concerned.
3. The worker has been subjected to particular scrutiny by
the Company because he successfully contested two previous
claims for occupational injury which he was entitled to pursue
under statute. The Company's action in dismissing him is most
unfair and unjust. The Union is seeking his reinstatement and
full reimbursement of his earnings since 10th March, 1993.
COMPANY'S ARGUMENTS:
4. 1. Both physicians who examined the worker concluded that
though he was presently symptom-free his underlying medical
condition - a damaged disc and bone degeneration - remained.
Given the worker's range of duties and previous medical
history the consultants agreed that the worker's condition
could be aggravated in the course of his normal duties and
cause an accident either to himself or another worker.
2. The Company's duty under the Safety, Health and Welfare
Act, 1989 and recently introduced Manual Handling of Loads
Regulations is to ensure the safety and health of its
employees at work. Both occupational and safety experts who
examined the worker concerned, assessed and analysed the
worker's duties and his workplace, and took cognisance of his
physical condition. They concluded that he was not capable of
carrying out his normal duties as detailed in his job
discription.
3. The Company carefully reviewed the advice of both its
legal and medical consultants and decided that it was obliged
to terminate the worker's employment in order to avoid putting
the worker at risk in the course of his duties. The Company's
obligations under common law, statute and statutory instrument
required that this action be taken. The worker was paid his
statutory entitlements and an ex-gratia payment. He was
treated in a fair and reasonable manner by the Company.
RECOMMENDATION:
5. The Court has fully considered all of the issues raised by the
parties in their oral and written submissions. The Court finds
that an employer may be held to have breached his duty to take
reasonable care of his employees if, disregarding medical opinion,
an employee is continued in employment and is subsequently
injured.
Accordingly given all the circumstances of this case the Court
finds that the action of the employer in dismissing the
complainant was not unreasonable.
The Court notes that the Company, in a severance payment, as a
gesture of goodwill included an amount of #2,500. With a view to
bring this matter to a final conclusion the Court would recommend
that this amount be increased to #5,000.
The Court so recommends.
~
Signed on behalf of the Labour Court
Tom McGrath
___________________
23rd July, 1993. Deputy Chairman.
T.O'D./J.C.
Note
Enquiries concerning this Recommendation should be addressed to
Mr. Tom O'Dea, Court Secretary.