FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : BORD NA MONA - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr McGee Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal Of Recommendation Of A Rights Commissioner R-067321-Ir-08/Jt
BACKGROUND:
2. The issue before the Court concerns the Union's appeal of a Rights Commissioner's Recommendation on behalf of its member. It is the Union's argument that the worker was treated unfairly as he was not afforded any representation or advanced notice of the Company's decision to retire him on the grounds of ill-health. The worker had been employed for 41 years with the Company. Following an accident in 2000, the worker was certified as unfit for work. He attempted to return to work but this was unsuccessful. In 2006, the Company requested the worker to attend an independent medical assessment. As a result of this medical assessment, the Company instigated the process of obtaining the internal approvals to effect an ill health retirement.
The matter was referred to a Rights Commissioner for investigation and recommendation. On the 3rd March, 2009 the Rights Commissioner issued his recommendation as follows:
"I have considered the submissions made by both parties. There is clear medical evidence that claimant was unfit to return to work and indeed when he did return to work he had to go out sick again, therefore, the respondents were within their rights in retiring the claimant on ill-health benefit. However, I have considered the claimant's arguments in relation to the notification and handling of the matter. I therefore have considered this and award the claimant €1,000 compensation for the way he was treated as a long serving member of the respondents organisation."
On the 29th March, 2009 the Union appealed the Rights Commissioner's 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 22nd May, 2009.
UNION'S ARGUMENTS:
3. 1 The worker was retired by the Company without any prior discussion, offer of representation or agreement being reached. The Company put in place a six month process to retire the worker from his employment and did not think it important or appropriate to tell him that this is what they were proposing to do.
2 The worker did not receive the information relating to the independent medical assessment until over one year later and six months after the decision had been made by the Company to retire him.
3 The situation created concern and stress for the worker and the consequences of the way the Company treated him.
COMPANY'S ARGUMENTS:
4. 1 The Company had no option but to retire the worker in light of the independent medical assessment. The company have a duty of care to ensure the health and safety of all employees
2 The Company's insurer's advised that there was no option in this matter but to process the ill health retirement. Until all approvals were received the Company could not have informed the worker that he was being retired on ill health. The worker was advised as soon as possible after the approval was granted.
3 The matter was processed in the same manner as all other ill health retirements that have been recommended and approved in the past.
DECISION:
Having considered the submissions of the parties, the Court is of the view that in all the circumstances the compensation recommended by the Rights Commissioner should be increased to €3000.
The Court so decides, upholds the appeal and varies the recommendation of the Rights Commissioner accordingly.
Signed on behalf of the Labour Court
Raymond McGee
10th June, 2009______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to David P Noonan, Court Secretary.