FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEALTH SERVICE EXECUTIVE NORTH EASTERN AREA - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr McGee Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Recommendation IR17503/03 (double appeal).
BACKGROUND:
2. The worker concerned commenced employment with the North Eastern Health Board in 1981 as an attendant in the Care of the Elderly Services in Cavan. In 1983 he was assigned duties which principally involved the collection and disposal of wet-dry waste refuse, also duties relating to power washing and being of assistance to boiler-house staff when required.
In 1994 the first phase of the relocation of the Care of the Elderly Services to Ballyconnell commenced. In 2004 the final phase of relocation to Virginia took place. The worker wished to remain in Cavan and several meetings took place with him. In April 2001 agreement was reached on an additional list of duties to ensure the protection of a job for the worker in Cavan.
In September 2002 the worker claimed that the agreement of 2001 was not being adhered to. He also informed Management that the use of cleaning materials/washing detergents was detrimental to his health. He referred his grievances to the adjudication process. The Independent Arbitrator's decision was not acceptable to the worker.
The issue was referred to a Rights Commissioner for investigation and recommendation. His recommendation which issued on the 30th July, 2004, was as follows:
"I recommend as a matter of priority that the worker attend a medical examination with an appropriate independent Medical Specialist. The purpose of this examination will be to determine the following;
1. The worker's medical fitness to carry out the duties as set out in the revised job description.
2. In the event that medical issues are identified, what action can be taken (e.g. protection) in order that the worker can carry out the duties without risk to his health?
Pending receiving the Specialist report, the worker should return to work and carry out any non-cleaning duties as assigned to him by management."
(The worker was named in the Right Commissioner's recommendation).
Both Management and the Union appealed the recommendation to the Labour Court on the 7th September, 2004, in accordance with Section 13(9) of the Industrial Relation Act, 1969. A Labour Court hearing took place on the 14th October, 2004.
UNION'S ARGUMENTS:
3. 1. The Union contend that Management have failed to adhere to the terms of the Agreement reached in April 2001.
2. In not carrying out cleaning duties the worker is following the advice he received from a medical consultant not to use cleaning materials.
MANAGEMENT'S ARGUMENTS:
4. 1. It is Management's position that the Board acted reasonably and in good faith in dealing with the worker.
2. The Board got Occupational Health clearance on the impact of cleaning duties on the worker and a subsequent risk assessment clearly identified that there was no risk to the worker.
3. Although the Board was not in agreement with the Rights Commissioner Recommendation it did make arrangements to refer the worker for independent medical assessment.
DECISION:
Having considered both the submissions of the parties and the independent medical evidence, the Court finds that the parties should now meet to agree the basis of the claimant's return to full-time work on the prescribed duties, including cleaning with products to which it has been found he is not allergic.
The Court therefore agrees with, but expands on, the decision of the Rights Commissioner and dismisses both appeals.
The Court so decides.
Signed on behalf of the Labour Court
Raymond McGee
22nd September, 2005______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Madelon Geoghegan, Court Secretary.