FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : MID WEST SECURITY LIMITED (REPRESENTED BY MANAGEMENT SUPPORT SERVICES) - AND - A WORKER (REPRESENTED BY EAMON O'BRIEN SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Recommendation IR14249/03/MR.
BACKGROUND:
2. The worker was employed as a security officer on a supervisory rate of pay. His duties involved him driving a 4x4 vehicle. Due to an accident he was declared unfit to drive the vehicle and was reassigned to other duties but he retained his Supervisor's rate of pay. The worker's claim is that he originally went on sick leave in March, 2002, but was given a medical certificate in May, 2002, saying that he was fit to return to work. The Company asked him to attend its own doctor who felt that the worker would be fit for the duties of a static guard but not for driving duties. The worker returned to work in July, 2002. He claims that he had previously worked 48 hours per week but within 2 weeks he was rostered for only 39 hours, causing him severe financial loss. The worker claimed in February, 2003, that he was declared fit to resume full duties. He did return to work but not in his original capacity involving driving duties. He is still in receipt of his supervisor's rate of pay.
The dispute was referred to a Rights Commissioner and his recommendation was as follows:-
"I therefore recommend that, on an exceptional basis, Mid West Security should now agree to the following:-
- to pay the worker a once-off ex gratia lump sum of €1,000 in respect of his extended absence from work in 2002
- to make every effort to meet any reasonable requests from the worker regarding additional hours of work,
- to allow the worker, when a suitable opportunity arises, to take up duties similar to his former duties.
(The worker was named in the Rights Commissioner's recommendation)
The worker appealed the recommendation to the Labour Court on the 7th of October, 2003, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 26th of May, 2004, in Limerick, the earliest date suitable to the parties.WORKER'S ARGUMENTS:
3. 1. The Company has behaved in an obstructive and negative way towards the claimant at all times. The Company's own doctor stated that he was fit to return to work as a static guard in May, 2002, but he was not allowed to return until July, 2002.
2. The Company claims that it tried to facilitate the worker with as many hours per week as possible yet within two weeks of returning to work in July, 2002, his hours of work were reduced from 48 to 39.
3. The Company made no effort to restore the worker to his former position although he was declared fit to do so.
COMPANY'S ARGUMENTS:
4. 1. The worker was appointed as a Supervisor in the Company, not as a mobile patrol Supervisor. He was never guaranteed any particular position.
2. The worker was allowed to retain his supervisors rate of pay and the Company does not believe that he suffered any loss of pay.
3. Medical examinations proved that the worker was not fit to resume his driving duties in May, 2002, and also July,2002. When he returned in February, 2003, there was a team in place carrying out his driving duties. The worker was assigned to other work.
DECISION:
Having considered the submissions of the parties, the Court is satisfied that the conclusions of the Rights Commissioner are consistent with the facts as disclosed in the course of the hearing.
Accordingly, the Court affirms the recommendation of the Rights Commissioner and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
23rd June, 2004______________________
CON/MB.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.