FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : LAGAN CEMENT LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY TECHNICAL, ENGINEERING AND ELECTRICAL UNION) DIVISION : Chairman: Mr McGee Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner’s Recommendation R-053352-Ir-07/Jt
BACKGROUND:
2. The Worker became a direct employee of the Company in March of 2004 taking up a position as a General Operative, in April 2005 he was medically certified unfit for work as a result of a back/hip condition by his personal general practitioner. Over the following months a number of meetings took place between the Management, Union and the Worker to discuss his absence and it was decided that he should be medically assessed by the Company Doctor. He subsequently concurred with the previous medical opinion that the Worker was correctly deemed unfit for outdoor work and that the situation was unlikely to change anytime in the future. The Company offered the Worker the training necessary for an alternative role based in the Central Control Room but this offer was declined. At a meeting arranged in May 2007 the Worker was informed that his position was terminated by Management with immediate effect.
- The issue involves a claim by the Union. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 17th October, 2007, the Rights Commissioner issued his Recommendation as follows:
"I have considered the submissions and arguments put forward by both parties. There was clearly a level of misunderstanding by both partiesin relation to the future employment of the claimant due to a state of health. Apart from that I believe the respondent had acted in a reasonable manner and had reviewed the claimants position from time to time in regard to his future employment in the organisation. However I do believe that the claimant was surprised and taken aback that his employment was terminated, therefore I award him the sum of €2,000 net in a full and final settlement."
On the 14th December,2007, the Union appealed the Rights Commissioners Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 13th February, 2008.
UNION'S ARGUMENTS:
3. 1. While the Worker was out sick there was no direct cost to the Company, therefore there was no pressing need to proceed and terminate his employment while he was alone and unrepresented by his Union.
2. The Company acted in a procedurally unfair manner which is contrary to natural justice, consequently the Worker ought to be awarded an appropriate compensation sum.
COMPANY'S ARGUMENTS:
4. 1. Following frequent consultations between both sides and the generous offer of an alternative position, it should not come as a shock that the Company would seek to dismiss the Worker on the grounds of ill-health.
2. The decision to terminate the employment of the Worker was not made in haste, a substantial period was allowed to give enough time for a full recovery and return to good health but medical opinion indicated that this was unlikely in the foreseeable future.
3. The Company has acted fairly and reasonably throughout, the decision to terminate the employment was based solely on medical grounds
DECISION:
In all the circumstances of the case as outlined to the Court, the Court upholds the Recommendation of the Rights Commissioner and dismisses the appeal.
Signed on behalf of the Labour Court
Raymond McGee
18th February, 2008______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.