FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : CARLOW COUNTY COUNCIL (REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT AGENCY) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Hayes Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. An appeal of a Recommendation of a Rights Commissioner's Decision r-132334-ir-13/JT.
BACKGROUND:
2. The Claimant in 2012 was employed by the Council in the Housing Maintenance Department and in receipt of an allowance associated with the post. He suffered a back injury at work. The Council assigned him to alternative duties that did not attract payment of the allowance. The Claimant is seeking to return to the Housing Maintenance Department and to have the allowance restored.
- The Council referred the Claimant to an Occupational Health Specialist who stated that he was 95% fit to resume his duties in the Housing Maintenance Department. Management refused to return him to that department or to restore the weekly allowance.
- This matter was referred to a Rights Commissioner for investigation and Recommendation. On the 4thOctober 2013 the Rights Commissioner issued the following Recommendation:-
- I accept that the Respondent has a duty of care to the Claimant and that the medical evidence shows that the Claimant could not carry out work in the Housing Maintenance sector. I do not find the claim well founded and it fails.
On the 6th November 2013 the Claimant 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 15th January 2014.
WORKER’S ARGUMENTS:
3. 1. The Claimant commenced working for the Council in 1999 on a full time basis. He worked in the housing maintenance area and was paid an allowance of €96 per week.
2. In October 2010 the Claimant suffered an injury and was absent from work for two weeks. He also had periods of absence in 2011 and 2012, but for no longer than a three week period. In June 2012, while setting some bricks the Claimant had a back spasm and was referred for a medical examination.
3. The medical report stated the Claimant was capable of doing 95% of his current duties in the housing area. However, the Council moved the Claimant to the gardening area and he lost his allowance. The Claimant seeks to return to the Housing Maintenance Department and or to have the allowance restored to him.
EMPLOYER’S ARGUMENTS:
4. 1. The Claimant was referred for a medical assessment in 2011 and again to an Occupational Health Specialist for review following the incident in June 2012.
2. The Occupational Health Specialist advised that the Claimant was fit to undertake 95% of his duties. However, this was based on the Claimant’s assessment that only 5% of duties consisted of heavy lifting.
3. The Council has a duty of care for all employees. Allowances which are paid for a specific duty are only paid when that duty is carried out. The Council cannot assign work to the Claimant that he is not fully fit to undertake. Neither can it pay him the allowance where he is not employed on Housing Maintenance duties.
DECISION:
Having considered the submissions of both parties to this dispute, the Court notes that the Claimant was assessed as fit to undertake 95% of his duties. The Court further notes the assessment of the Specialist in Occupational Medicine to the effect that “there is no reason why he could not be reasonably accommodated by the Council with a restriction on heavier manual work which involves less than 5% of his duties.”
On that basis the Court decides that the Council should return the Claimant to the Housing Maintenance Division and make reasonable accommodation to enable him to undertake his duties in that department. The Council should restore the associated weekly allowance to the Claimant with effect from the date of this Decision.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
CR______________________
6th February, 2014.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.