Labour Court Database __________________________________________________________________________________ File Number: CD93193 Case Number: LCR14102 Section / Act: S20(1) Parties: ATARI GAMES IRELAND LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Alleged unfair dismissal.
Recommendation:
5. The Court has considered the views expressed by the parties in
their oral and written submissions.
The Court, given all of the circumstances of the case, does not
find that the complainant was unfairly treated by the Company and
accordingly rejects the claim.
The Court so recommends.
Division: MrMcGrath Mr McHenry Mr O'Murchu
Text of Document__________________________________________________________________
CD93193 RECOMMENDATION NO. LCR14102
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: ATARI GAMES IRELAND LIMITED
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS CONFEDERATION)
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Alleged unfair dismissal.
BACKGROUND:
2. The Company which is based in Tipperary employs approximately
55 people in the manufacture of electronic games. The worker
concerned commenced employment with the Company in 1987. In the
period June, 1991 to November, 1992, the worker was absent from
work on sick leave. During the course of his absence the worker's
illness was investigated by a number of doctors but the doctors
were not able to give him a date on which he would be fit to
return to work. The Company operates a sick pay scheme which
provides for 8 weeks' sick pay in any year. Workers on long-term
sick leave qualify for the Company's income continuance plan after
6 months' absence.
In the period February, 1992 to November, 1992, the Company
informed the worker on a number of occasions that it could not
keep his job open indefinitely and that if he was not in a
position to give a date for his return to work his employment
would be terminated. The worker's employment was terminated on
27th November, 1992.
The Union referred the matter to the Labour Court under Section
20(1) of the Industrial Relations Act, 1969, and agreed to be
bound by the Court's recommendation. The Labour Court hearing
took place on 13th May, 1993.
UNION'S ARGUMENTS:
4. 1. The worker was absent on sick leave in June, 1991,
following an accident at work.
2. The worker made every effort to get fit in order to return
to work. He attended a number of doctors but they were not
able to certify him fit to resume work.
3. The Company refused to go through normal industrial
relations procedures. A solution acceptable to both parties
could have been reached at conciliation.
4. When the worker informed management of his intention to
seek clearance from his doctor to resume work, the Company
requested a signed statement from the worker that he was fit
to resume normal duties. Management did not want the worker
back at work even with a doctor's certificate.
5. It is pointless for the Company to operate an income
continuance plan for its employees if it dismisses them
because they are on long-term sick leave, thereby eliminating
them from the scheme. The circumstances under which the
worker received payments from the scheme have not changed.
6. Income continuance schemes are designed to compensate
workers who are unable to work because of long-term illness.
It is not unsual under such circumstances for workers not to
return to work.
7. The Company has implemented a redundancy scheme since the
dismissal of the worker. It did not have to replace the
worker or do anything which would be to the detriment of the
Company to keep the worker in employment.
8. The worker had an excellent record of attendance prior to
his accident. The Company has treated him unfairly and has
deprived him of his hopes of returning to work.
COMPANY'S ARGUMENTS:
3. 1. The worker concerned went absent from work in June, 1991.
He subsequently alleged that his absence was due to an
accident at work. The alleged accident was not reported to
the Company until 3 weeks after the accident.
2. The worker never told the Company what his illness was, or
the prognosis, nor did he give any indication of when he would
return to work.
3. Medical reports submitted to the Company indicated that
the medical people were awaiting a statement from the worker
that he was fit to return to work. The worker refused a
request from the Company for a statement indicating that he
was fit to resume work.
4. In October, 1992, the Company's insurers terminated the
worker's disability payments.
5. The worker was dismissed because he was not able to fulfil
his contract of employment. A contract of employment is
agreed on the basis that the employee attends for work on a
regular basis.
6. The Company has acted fairly within the terms of the
worker's contract of employment and in keeping with good
management practice:-
(1) advised the worker concerned that his job was at
risk
(2) took reasonable steps to establish the medical
position
(3) allowed the worker a reasonable opportunity to
return to work
(4) extended deadlines which had been given to the
worker.
RECOMMENDATION:
5. The Court has considered the views expressed by the parties in
their oral and written submissions.
The Court, given all of the circumstances of the case, does not
find that the complainant was unfairly treated by the Company and
accordingly rejects the claim.
The Court so recommends.
~
Signed on behalf of the Labour Court
Tom McGrath
_____________________
11th June, 1993. Deputy Chairman
F.B./J.C.
Note
Enquiries concerning this Recommendation should be addressed to
Mr. Fran Brennan, Court Secretary.