FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DUBLIN CITY COUNCIL - AND - A WORKER DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr. Somers |
1. Appeal against Rights Commissioner's Recommendation IR10739/02/GF.
BACKGROUND:
2. The worker was employed in the Council's rates office as a Clerical Officer in January, 1978. The Council claims that there have been ongoing difficulties with the worker's attendance until his retirement in January, 2003. He missed nearly 3,200 days through various illnesses since his employment began. In late 2002, following consultation with medical advisors, the Council decided that the worker was no longer capable of attending work in a meaningful way. It was decided to retire him on the grounds of ill health and the worker was granted a statutory lump sum and pension submission.
The worker believed that he was unfairly dismissed and referred his case to a Rights Commissioner. (The Council did not attend the Rights Commissioner's hearing). The Rights Commissioner's recommendation and findings were as follows:-
"In the absence of the respondent I am accepting the claimant's evidence. According to the case file a letter dated 16th September, 2002 stated he was still in the employment of Dublin City Council. However, I am recommending that the claimant be re-engaged in his position as a Clerical Officer, with no break in service, as soon as he produces a Doctor's Certificate stating he is fit to resume work. The Council might then consider his application for a period of leave of absence.".
Both parties appealed the recommendation - the worker on the 13th of February, 2003, and the Council on the 24th of February, 2003. A Labour Court hearing took place on the 17th of October, 2003, in accordance with Section 13(9) of the Industrial Relations Act, 1969. The worker did not attend the hearing or forward a written submission.
COUNCIL'S ARGUMENTS:
3. 1. The Council has recognised at all times that the worker suffered from serious health problems and tried to deal with him in a sensitive and compassionate manner.
2. There was a marked deterioration in his condition over the last few years. It was decided to retire him on the grounds of ill health as he was deemed to be unfit to resume work by the Council's medical referee. The worker accepted and signed the retirement form.
DECISION:
The worker did not attend the hearing but did communicate with the Court by letter in which he indicated that he was not prepared to proceed because, amongst other things, he wished the hearing to be in public. Under section 13(9)(c) of the Industrial Relations Act, 1969, the Court is precluded form hearing an appeal from the recommendation of a Rights Commissioner otherwise than in private. The worker was advised that the hearing would proceed and that he should attend.
In the circumstances, the Court proceeded to hear the cross-appeal by the employer.
The representative of the employer told the Court that they had not attended the hearing before the Rights Commissioner due to a misunderstanding, details of which were provided to the Court. The Court was told that the worker had been retired on grounds of ill health and had been paid and had accepted his full entitlements under the Local Authorities’ pension scheme.
Having considered all of the evidence presented to it, the Court is satisfied that the worker became permanently disabled and unable to continue in his employment. He was offered and accepted retirement on grounds of ill health. In these circumstances, there was no unfair dismissal.
Accordingly, the appeal by the employer is allowed and the recommendation of the Rights Commissioner is set aside and substituted with this determination.
Signed on behalf of the Labour Court
Kevin Duffy
4th November, 2003______________________
CON/MB.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.