Labour Court Database __________________________________________________________________________________ File Number: CD95718 Case Number: LCR15081 Section / Act: S20(1) Parties: TELECOM EIREANN - and - A WORKER;DALY, LYNCH AND CROWE, SOLICITORS |
Claim by a worker that he was unfairly dismissed.
Recommendation:
Having considered the submissions and noting that the claimant was
within his probationary period, the Court finds that the Telecom
Eireann did not act unreasonably in the circumstances.
The Court, accordingly, does not recommend concession of the claim.
Division: Ms Owens Mr McHenry Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD95718 RECOMMENDATION NO. LCR15081
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: TELECOM EIREANN
and
A WORKER
(REPRESENTED BY DALY, LYNCH AND CROWE, SOLICITORS)
SUBJECT:
1. Claim by a worker that he was unfairly dismissed.
BACKGROUND:
2. The worker was employed by the Company on the 13th of February,
1995, in the capacity of junior officer, having been referred to
the Company by the National Rehabilitation Board. In late April,
1995, he submitted a medical certificate from his doctor which
declared him unfit to work for two weeks. In early May, 1995, a
second certificate for two weeks was issued by the same doctor.
However, the worker wished to return to work and he obtained two
certificates of fitness to work, from two other doctors. In view
of the conflicting medical evidence, the worker was referred by the
Company to its Chief Medical Officer (C.M.O.), who felt obliged to
seek a report from a Consultant Psychiatrist. A report was
presented to the C.M.O. by the Consultant Psychiatrist concluding
that the worker was incapable of rendering regular and efficient
service to the Company. On the basis of this report and the advice
of the C.M.O., the Company terminated the worker's employment on
the 27th of July, 1995. In its letter of termination, the Company
referred to paragraph 5 of the worker's letter of appointment which
states "If your services during the probationary period are
unsatisfactory in any respect, your appointment may be terminated
at any time by giving one week's notice". The worker claims that
his dismissal was unfair and, on the 19th of December, 1995,
referred the matter to the Labour Court, in accordance with Section
20(1) of the Industrial Relations Act, 1969. The Court
investigated the dispute on the 31st of January, 1996.
WORKER'S ARGUMENTS:
3. 1. Prior to his dismissal, the worker did not receive
notification from the Company warning that his employment
might be terminated for reasons of medical unfitness.
2. The worker was not informed by the Company why he was
required to be seen by the Consultant Psychiatrist.
Neither was he given an opportunity to furnish his own
independent psychiatric report.
3. The worker had no psychiatric medical history prior to
his employment with the Company. He had been given
employment through the agency of the National
Rehabilitation Board on its recommendation (the worker
has a hearing disability for which he requires two
hearing aids).
4. The Company should not have made any decision on the
worker's future employment, without informing him of the
nature and purpose of the medical enquiry that was being
carried out, thereby affording him an opportunity to
furnish his own medical reports.
5. No decision should have been made by the Company before
the matter was fully and properly investigated.
6. The worker rejects the Company's claim that his
performance was poor.
COMPANY'S ARGUMENTS:
4. 1. The Company employed the worker in good faith, believing,
on the basis of his health declaration form that, apart
from a hearing defect, he enjoyed good health. However,
based on the Company's experience of him in the workplace
and on the medical evidence available, the Company is
satisfied that he was medically unfit for work. Based on
the Consultant Psychiatrist's report and on the advice of
the C.M.O., the Company is satisfied that there was
little prospect of regular and efficient service in the
future and that, consequently, the worker was unsuitable
for retention in the Company. The Company acted in a
fair and reasonable manner and, accordingly, the worker
was not unfairly dismissed.
RECOMMENDATION:
Having considered the submissions and noting that the claimant was
within his probationary period, the Court finds that the Telecom
Eireann did not act unreasonably in the circumstances.
The Court, accordingly, does not recommend concession of the claim.
~
Signed on behalf of the Labour Court
Evelyn Owens
13th February, 1996 -------------
M.K./U.S. Chairman
NOTE:
ENQUIRIES CONCERNING THIS RECOMMENDATION SHOULD BE ADDRESSED TO
MR MICHAEL KEEGAN, COURT SECRETARY.