LCR22136

FULL RECOMMENDATION

CD/19/298

RECOMMENDATIONNO.LCR22136

SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969

PARTIES :

MARKS AND SPENCER
(REPRESENTED BY EUGENE F COLLINS SOLICITORS)

- AND -

A WORKER
(REPRESENTED BY CARNEY MCCARTHY SOLICITORS)

DIVISION :

Chairman: Mr Foley
Employer Member: Ms Doyle
Worker Member: Mr McCarthy

SUBJECT:
1. Compensation

BACKGROUND:

2. This dispute concerns an employee on sick leave and her efforts to return to work. The worker referred this case to the Labour Court on 5 September 2019 in accordance with Section 20 (1) of the Industrial Relations Act, 1969, and agreed to be bound by the Court’s Recommendation.

A Labour Court hearing took place on 15 November 2019.

UNION'S ARGUMENT:

3. 1. The Worker says that she is fit to return to work but that the Employer is hampering this.

EMPLOYER'S ARGUMENT:

4. 1. The Employer claims that the worker remains an employee of the Company and that she is absent from work on sick leave pending the Company establishing to its satisfaction her fitness to return to work in her role. The Employer is willing to engage the services of an independent medical consultant to establish this.

RECOMMENDATION:

This matter comes before the Court as a trade dispute referred under Section 20(1) of the Industrial Relations Act, 1969. That section of the Act of 1969 provides as follows:

20.— (1) Where the workers concerned in a trade dispute or their trade union or trade unions request or requests the Court to investigate the dispute and undertake or undertakes before the investigation to accept the recommendation of the Court under section 68 of the Principal Act in relation thereto then, notwithstanding anything contained in the Principal Act or in this Act, the Court shall investigate the dispute and shall make a recommendation under the said section 68 in relation thereto.

The term ‘trade dispute’ is defined in the Industrial Relations Act, 1946 as

“any dispute or difference between employers and workers or between workers and workers connected with the employment or non-employment, or the terms of the employment, or with the conditions of employment, of any person and includes any such dispute or difference between employers and workers where the employment has ceased;”

Section 68 of the Industrial Relations Act, 1946 provides as follows:

68(1) The Court, having investigated a trade dispute, may make a recommendation setting forth its opinion on the merits of the dispute and the terms on which it should be settled.

The Court sets out the above detail as a reflection of its concern that that the manner of presentation to the Court of the worker’s referral was such as to raise the possibility that there may be a lack of clarity on the part of the worker’s legal representatives as regards the function of the Court in industrial relations matters.

The Court decided to take the extensive submissions of the parties as read and so advised the parties at the hearing.

In industrial relations terms, the matter before the Court is a matter wherein a worker wishes to return to her role in the employment following absence through ill health and her medical adviser has certified her as fit to do so. The employer has indicated a willingness to allow the worker to return to work subject to medical clarity on her ability to do so. The employer refers to a medical assessment from its own doctor dated September 2019 which indicated that the worker was medically unfit to undertake the contractual roles of section manager.

The employer had proposed to the worker by letter to her legal adviser some 9 days prior to the hearing of the Court that an independent medical consultant should be appointed to review the worker and to consider the role of section manager in the Foods department in the company so as to give a definitive opinion on the worker’s fitness to work without restrictions in her role as section manager. The employer submitted that such a mechanism would be the best way of both parties being advised as to how to accommodate the worker into the workplace following her extended absence and recovery from injury.

Having considered the submissions of the parties the Court recommends that the employer’s proposal contained in its letter of 6^thNovember 2019 should be accepted by the worker. The Court further recommends that any grievance which the worker might have should be raised with the employer utilising the internal grievance procedure in place in the employment and set out in the Employee Handbook. Finally, the Court recommends that the worker and the employer should meet, in accordance with the Company’s established procedures following absence, once the report of the independent medical adviser is received.

The Court so recommends.

Signed on behalf of the Labour Court

Kevin Foley
CC______________________
19 November 2019Chairman

NOTE

Enquiries concerning this Recommendation should be addressed to Ceola Cronin, Court Secretary.