INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Ms Owens
Employer Member: Mr Pierce
Worker Member: Mr Rorke
2. The worker concerned commenced employment with the company in 1979. On the 2nd of October, 1995, he went absent from work suffering from a urinary tract infection. Over the following twelve months the worker was examined on a number of occasions by the company's occupational health consultant, by his own general practitioner and by a specialist physician. At a meeting on the 17th of October, 1996, Management informed the worker that the company's health consultant could not find a medical reason for the worker's continued absence from work and that if he failed to return to work on the 29th of October, 1996, his employment would be terminated. The worker claims that he is unable to work due to his medical condition and that he should receive an ill health pension from the Company.
The worker took unofficial strike action on the 12th of November, 1997, by placing a picket on the company's Dublin premises. It was agreed to discuss the worker's dismissal at a conciliation conference under the auspices of the Labour Relations Commission on the 17th of November, 1997. Agreement could not be reached at conciliation and the dispute was referred to the Labour Court in accordance with Section 26(1) of the Industrial Relations Act, 1990. The Court investigated the dispute on the 6th of February, 1998.
3. 1. The worker concerned has been under continuous medical care since October, 1995. His general practitioner and the specialist physician who examined him have stated that he will be unable to attend work in the foreseeable future. He has never been certified fit to return to work. A member of Management instructed the worker in April, 1996, not to send any further medical certificates to the company.
2. The worker has been examined at three monthly intervals by the Department of Social, Community and Family Affairs' Board of Referees who continue to authorise benefit payments to him.
3. The worker has proposed that an independent medical specialist should examine him and that the findings should be binding on both parties. If found in his favour the worker should be accepted for the ill health pension scheme.
4. 1. The Company accepts that the worker received extensive medical examinations and treatment over a period of approximately twelve months. However, in September, 1996, it emerged that he was not receiving treatment and was taking a very small amount of preventative medication which, in the occupational health consultant's view, would not affect his ability to carry out his job.
2. The Company allowed a long period of time for medical intervention with the intention that the worker would return to work. On the 17th of October, 1996, the worker stated that he would not be returning to work. He did not suggest returning on a part-time basis or for short periods.
3. The worker made no effort to keep the Company informed of his progress while he was receiving treatment, he did not make a formal appeal against his dismissal to the Employment Appeals Tribunal and he attempted to damage the Company by conducting a picket thirteen months after his dismissal.
4. The ill health pension scheme is administered by a board of trustees. Based on the medical evidence the worker would not be deemed eligible.
Having considered the submissions from the parties, and taking into account the background of the claim, the Court is satisfied that the present impasse has occurred as a result of some misunderstanding between the parties.
In the light of the most recent medical opinion and accepting that the claimant has not been in the Company's employment since October, 1996, the Court recommends that the Company open the matter of having the claimant's case for acceptance into the "Ill Health Pension" scheme examined. The Court notes that there is provision for appeal by either party on the outcome of such examination.
The Court so recommends.
Signed on behalf of the Labour Court
20th February, 1998______________________
Enquiries concerning this Recommendation should be addressed to Dympna Greene, Court Secretary.