FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : PENNEY'S LIMITED (REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - MANDATE DIVISION : Chairman: Ms Jenkinson Employer Member: Mr McHenry Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Recommendation IR827/98/JH.
BACKGROUND:
2. The issue in dispute concerns a Notice of Termination of Employment which was issued to an employee who has been absent from work due to illness since the 17th of August, 1995. She was employed as a sales assistant in the Dundalk branch since May, 1975. The Company's doctor found that she was medically unfit to carry out her normal duties and would be unable to return to work for the foreseeable future. Her own doctor is also unable to give a date for her return to work.
In October, 1998, the Union sought, on behalf of the employee, a leave of absence for a period of 3 years to allow her time to recover her good health. Alternatively, the Union requested that a severance payment be paid to her. The Company refused and offered to hold her position open for a further 3 months only. It advised the worker that it would issue a Notice of Termination of Employment with effect from the 8th of March, 1999, if the worker did not resume employment on or before the 18th of January, 1999.
The Union referred the issue to a Rights Commissioner for investigation and she issued her recommendation on the 17th of February, 1999 as follows:-
"I recommend that the Notice of Termination be re-issued
on 4th April, 1999 to expire on 28th May, 1999. This provides
(the worker) with a further 3 months in which to prove herself
fit for work."
(The worker was named in the Rights Commissioner's recommendation).
The Union appealed the recommendation to the Labour Court on the 25th of February, 1999 in accordance with Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal on the 25th of May, 1999, the earliest date suitable to the parties.
UNION'S ARGUMENTS:
3. 1. The worker has given long and loyal service to the Company for 24 years. She attended work and carried out all her required duties. She has made every effort to have her condition improved in order to return to her normal duties as soon as she is medically deemed fit to do so.
2. There is no commercial disadvantage to the Company in keeping the worker's job open, as, due to a change in legislation, it is no longer required to pay her for public holidays. If the Company cannot show a commercial disadvantage and refuses to allow a reasonable leave of absence, a severance payment would be appropriate taking account of her service to the Company.
COMPANY'S ARGUMENTS:
4. 1. The Company has accepted the Rights Commissioner's recommendation as fair and reasonable in all of the circumstances. The Company has kept the worker's job open since 1995. In October, 1998, the Company gave the worker a further 3 months to resume working and, following receipt of the Rights Commissioner's recommendation, it extended the date of cessation to the 28th of May, 1999.
2. The worker has provided no evidence to state that she is fit for work and is clearly incapable of fulfilling her contract of employment. A severance payment is not warranted as a redundancy situation does not exist. The Company regrettably has no option but to terminate her employment.
DECISION:
Having heard the submissions of the parties, the Court is satisfied that the Company acted reasonably and in accordance with their absence procedures. In the absence of any medical indication as to a return to work date, the Court finds no basis to overturn the Rights Commissioner's recommendation.
The recommendation of the Rights Commissioner is, therefore, upheld and the appeal is disallowed.
Signed on behalf of the Labour Court
Caroline Jenkinson
28th May, 1999______________________
D.G./D.T.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Dympna Greene, Court Secretary.