FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : SHINKO MICRO ELECTRONICS LIMITED (REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Employer Member: Worker Member: |
1. Appeal on behalf of a worker against Rights Commissioner's Recommendation No. 480/98GF.
BACKGROUND:
2. The Company is based in Tallaght, Dublin 24 and employs approximately 270 workers. The worker involved in the dispute has been employed as a general operative, by the Company, for over 10 years. The Union claims that she was unfairly treated by the Company in that it subjected her to continual pressure and harassment during a certified illness and that it unfairly refused her cover under the Company's long-term disability plan. (The worker had been removed for a time from the Company sick pay scheme but, following an appeal from the Union, she was returned to the scheme on compassionate grounds.) The Union's claim was rejected by the Company. The matter was the subject of investigation by a Rights Commissioner who, in his recommendation, found that the Company treated the worker fairly throughout her period of extended absence. He found, further, that the Company's refusal to include her in its long-term disability plan was not unreasonable in the circumstances. The Union appealed the recommendation, on the 13th of January, 1999, in accordance with Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal on the 10th of June, 1999, the earliest date convenient to both parties.
UNION'S ARGUMENTS:
3. 1. The Company had the right to communicate with the worker but they were over zealous in their approach. As a consequence of this, the worker suffered unnecessary mental anxiety, additional pressure allied to concerns as to the loss of her job (details supplied to the Court).
2. In view of the nature and duration of the worker's illness, which eventually totalled 10 months' absence, she was an obvious candidate for long-term disability cover and her exclusion was a further example of her unfair treatment. The Company has argued that the scheme provides for cover for total disability and that inclusion is at their discretion. The worker pays a contribution into the overall plan and the fact that her illness did not necessitate hospitalisation or leave her bed-ridden are not sufficient grounds for refusal. Hers was a serious disability, often misunderstood, and incorrectly trivialised (details supplied to the Court).
COMPANY'S ARGUMENTS:
4. 1. The Company reinstated the worker to the sick pay scheme in Spring 1997, when the Union made an appeal. This was done on compassionate grounds at the time when the medical evidence available did not justify her continuing to receive benefits from the scheme. This decision was based solely on the Union's appeal, and was made in the absence of any supporting medical evidence at the time. This imposed further costs on the Company through sick benefit payments.
2. The Company continued to have the worker medically reviewed throughout her period of absence. This was influenced by her previous pattern of absence, her extended period of illness in 1997/1998 and the Company's established pattern of reviewing such cases on a regular basis.
3. The Company's long-term disability plan is directly funded by the Company and its operattion is at the Company's sole discretion. The worker was not eligible as a candidate for this scheme given her condition, the reasonable expectation that it would improve, and that she would be fit to return to work within a period of months. This is what happened and she has been back at work since February, 1998.
4. The purpose of the long-term disability scheme is to support those employees who are totally and permanently disabled and, therefore, unlikely to ever be able to return to work. Other candidates in similar circumstances to the worker's have also been refused access to the scheme on the basis that they are not totally disabled and are likely to be able to return to work.
DECISION:
The Court having considered the written and oral submissions finds no reason to alter the Rights Commissioner's Recommendation.
The Court, therefore, rejects the appeal and upholds the Rights Commissioner's Recommendation.
The Court so decides.
Signed on behalf of the Labour Court
Finbarr Flood
18th June, 1999______________________
M.K./D.T.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.