FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : REILLY SCAFFOLDING - AND - A WORKER DIVISION : Chairman: Mr McGee Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal of the Recommendation of a Rights Commissioner R-063645-Ir-08/Gc
BACKGROUND:
2. The issue before the Court concerns a claim by the Union on behalf of its member that he was unfairly dismissed. The worker commenced employment with the Company in April 2007. It is the Union's claim that following an accident at work in June 2007, the Company did not facilitate the worker's return to work and thereby unfairly dismissed him. The Company's position is that it never dismissed the worker and has no record of a work accident. The Company claim's it contacted the worker regarding a job in December, which he did not show for, and at the request of the worker issued him a P45 in January.
The matter was referred to the Rights Commissioner for investigation and recommendation. On the 16th October, 2008 the Rights Commissioner issued his recommendation as follows:
" Based on the uncontested evidence of the claimant I find the following:
The claimant sustained an injury while working on site during July 2007. The employer did not facilitate his return to work, effectively dismissing him from employment. The claimant should be compensated for the unfair treatment he received during his absence on sick leave where there was a delay in returning his injury benefit form and for the refusal of the employer to meet with the claimant to discuss his return to work.
I require the employer to pay the claimant the sum of €3,000 in compensation."
On the 9th November, 2008 the Company 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 11th February, 2009.
UNION'S ARGUMENTS:
3. 1 The worker submitted medical certificates until told by the Company that it was unnecessary to submit any more. Once he was passed medically fit, he continually looked to come back to work.
2 The Company never returned the worker's phone calls regarding work. In January, 2008 the worker met with the Company, not to seek a P45, but to try and secure work.
3 Following the meeting in January, 2008 the Company issued the worker with a P45 back dated to October, 2007. The Union contends that the worker was unfairly dismissed.
COMPANY'S ARGUMENTS:
4. 1 The Company has no record of an on-site accident involving the worker. The Company only ever received one medical certificate from the worker.
2 The Company contacted the worker regarding work in December, 2007. The worker failed to show up.
3 In January, 2008 the worker appeared on site looking for his P45 and P60. The Company supplied the worker with a P45 as soon as it was possible.
DECISION:
In the absence of any documentation being supplied and having heard seriously conflicting accounts of the events which occurred, the Court, on balance, is of the view that an unfair dismissal occurred. The Court, however, considers that €2,000 would be a more appropriate level of compensation.
The Court so decides and varies the Rights Commissioner's Recommendation accordingly.
Signed on behalf of the Labour Court
Raymond McGee
28th February, 2009______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to David P Noonan, Court Secretary.