FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : NOONAN SERVICES GROUP LIMITED (REPRESENTED BY MSS) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Recommendation r-130249-ir-13/GC.
BACKGROUND:
2. This dispute concerns the Worker's claim that the Company's refusal to allow him return to his place work following a prolonged period of sick leave has resulted in a significant loss of earnings. This dispute was referred to a Rights Commissioner for investigation and recommendation. On the 15th August, 2013 the Rights Commissioner issued the following Recommendation:-
- "I recommend that the [Company] examine any possibility to place the [Worker] back at [his previous place of work] over the next twelve months and that the [Worker] accept any reasonable offer of work during this period and ... that the sum of €4,000 would be reasonable to compensate him for any loss of earnings."
On the 26th August, 2013 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 19th February, 2014.
3. 1. The Worker was medically certified as fit to return to work.
2.The Worker was given a commitment by the Company that he could return to his place of work when fit to do so.
3.The Company has failed to honour its contractual obligations to the Worker.
COMPANY'S ARGUMENTS:
4. 1.The Company has at all times honoured the Worker's terms and conditions of employment.
2.Any loss of earnings was caused by the Worker's absolute refusal to return to work unless he could dictate where he would work.
3.The Company requires flexibility from its staff and the Worker is no exception to this rule.
DECISION:
Claim No 1: - Payment for the period February 2012 – July 2012
Having considered the submissions of both parties to this dispute the Court finds that the claimant’s case is well founded and upholds the monetary award recommended by the Rights Commissioner in this case.
The Court so decides.
Claim No 2:- Commitment to Return the Claimant to a Particular Site
The Court finds that the commitment given to the Claimant by his former employer that he would return to work on a particular site must be viewed against the exceptional circumstances in which it was given. The commitment was not given for all time and in all circumstances. After an illness that lasted for six years the Claimant returned to work in a business environment that had changed utterly over that time. After such a long time the commitment on which he seeks to rely could no longer be considered valid or enforceable.
More importantly the claimant’s terms of employment require him to be available to work on any of the sites operated by the respondent. The temporary exceptional undertaking to return him to a nominated site did not alter that fundamental term of his employment. The Company remains entitled to assign the Claimant to work in accordance with the terms of his contract of employment. The Claimant is accordingly required to undertake the work assigned to him.
The Court therefore finds this aspect of the appeal is well founded and decides accordingly.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
31st March, 2014______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jonathan McCabe, Court Secretary.