FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : ATHY INTERNATIONAL CONCENTRATES (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Refusal by Company to pay full wages while absent from work due to industrial accident.
BACKGROUND:
2. In November, 2000, the worker damaged his left hand as a result of an accident whilst at work. He was absent from November, 2000, to January, 2001, when he returned to work. He continued to work until May, 2001, but the injury became more painful and he was referred to a specialist. He had to undergo surgery on his hand and has been out of work since then. The Company continued to pay him full pay and benefits until February, 2003, when, following a medical report from the Company doctor he was removed from the sick pay scheme. He has not been paid by the Company since then. It is accepted that the worker cannot carry out the duties he performed before his injuries. The Union is seeking that he be reinstated in the occupational injury scheme and also that he be given some work comparable to his previous duties. The Company's case is that it has been very generous in paying the worker for almost two years whilst he was on sick leave. It claims that there are no suitable jobs for him.
The dispute was referred to the Labour Relations Commission and a conciliation conference took place. As the parties did not reach agreement, the dispute was referred to the Labour Court on the 9th of January, 2004, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 25th of May, 2004, in Naas, the earliest date suitable to the parties.
UNION'S ARGUMENTS:
3. 1. The occupational injury scheme in the Company / Union agreement states "each case will be reviewed on its own merits in the case of occupational injury which he was party to at its agreement". This agreement should apply to the worker in this case.
2. The worker is anxious to return to work but feels that the Company, through the Company doctor, is frustrating his efforts. The thought of being unemployed is causing him great stress.
3. The worker believes that he is capable of doing work for the Company. There are other workers employed who are not 100% fit but they are not discriminated against.
COMPANY'S ARGUMENTS:
3. 1. The Company continued to pay the worker for 21 months (plus a previous three months) after he went on sick leave, even though the sick pay scheme states that payment will be made"for the first eight weeks". The Company paid and organised all relevant medical appointments and related costs for the worker.
2. The Company doctor has clearly stated that the worker is not fit to resume work in his previous occupation (process operator). The Company does not have light duties or alternative work for him.
RECOMMENDATION:
The Court notes that the Company has retained the claimant on full pay for a period of two years following his accident. The Court does not consider it reasonable to expect that this period of paid sick leave be further extended.
With regard to the claimant's possible return to work, the Court could not recommend concession of the Union's claim in circumstances in which the only medical evidence available is to the effect that the claimant is not capable of safely carrying out the functions attaching to his job.
The Court recommends that a further assessment of the claimant's condition be undertaken by an agreed medical specialist and that his position be reviewed in light of the outcome of that assessment. If necessary, consideration should be given to the possibility of redeploying the claimant to any suitable alternative position which he is capable of undertaking, if such a position can be identified.
Signed on behalf of the Labour Court
Kevin Duffy
21st June, 2004______________________
CON/MB.Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ciaran O'Neill, Court Secretary.