INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
ST. MICHAEL'S HOUSE
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION
Chairman: Ms Owens
Employer Member: Mr Pierce
Worker Member: Mr O'Neill
1. Appeal against Rights Commissioner's Recommendation 1184/97.
2. The worker concerned has been employed as a care assistant since January, 1989. She states that she was absent on maternity leave and annual leave from June, 1995, until January, 1996. She commenced a period of sick leave in June, 1996, and in March, 1997, her employer received a medical certificate stating that the worker was fit to return to work. She was requested to attend the company doctor on the 22nd of April, 1997. She was informed at a meeting on the 26th of June, 1997, that, following receipt of the company doctor's report, she would not be allowed to return to work at that time. Following reports from the company doctor, the worker's G.P., and the Coombe Hospital in August, 1997, the worker was placed on the payroll with effect from the 11th of August, 1997. She commenced a second period of maternity leave from the 19th of August, 1997.
The worker concerned requested a Rights Commissioner's investigation into her claim that she was deprived of the right to work from March, 1997, to August, 1997. The Rights Commissioner found that the Employer was correct in not allowing the worker to return to work as a result of the medical report from the company doctor. However, he considered that the delay between the referral to the medical assessor, the receipt of his report and the subsequent meeting was unacceptable and he issued his Recommendation on the 23rd of April, 1998, as follows:-
"I recommend that the Company offers and that (the worker) accepts the sum of £1000 in settlement of this dispute".
(The worker was named in the Rights Commissioner's Recommendation).
The Company appealed the recommendation to pay compensation to the Labour Court on the 14th of May, 1998, in accordance with Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal on the 23rd of June, 1998.
3. 1. There was an unreasonable delay between the 11th of March, 1997, the date on which the worker could have resumed work, and the 22nd of April, 1997, the date set for the doctor's appointment. There was a further delay until the 26th of June, 1997, when the worker was informed that a previous history of miscarriage rendered her unfit to resume her normal duties.
2. The company doctor's opinion was contradicted by both the worker's G.P. and by her consultant obstetrician, both of whom had her health as their primary concern and neither of whom saw any reason why she should not resume work. The Company did not attempt to reconcile this difference of opinion.
3. The Company was in breach of the Safety, Health and Welfare at Work (Pregnant Employees etc) Regulations, 1994, by not undertaking a risk assessment or identifying any risks involved. The Company made no attempt to adjust working conditions or to provide alternative work. The Company was also in breach of the Maternity Protection Act, 1994, in failing to address the worker's right to Health and Safety leave if any identified risks could not be removed.
4. As the worker was unfairly deprived of the right to work by the Company, the period between March, 1997, and August, 1997, should be regarded as a period of work and the worker should be paid a lump sum to cover loss of earnings. Social Welfare credits should be maintained and she should receive a suitable sum in compensation for the distress and inconvenience caused to her.
4. 1. The Company does not have a case to answer. It has a long and valued relationship with the company doctor, who understands the nature of the work involved at St. Michael's House. If his medical opinion was such that the worker was unfit for work, the Company had to trust and comply with his opinion.
2. It is normal practice in all long-standing absentee cases to refer employees to the company doctor. The Company was unaware that the worker was pregnant until his report was received in June, 1997. The delay in receiving his report was due to the delay he experienced in receiving a report from the worker's medical team at the Coombe Hospital.
3. The Rights Commissioner found that the Company had acted correctly in refusing to allow the worker to return to work. The Company rejects his recommendation to pay £1000 compensation to the worker as the Company cannot be held accountable for the delay caused by the medical team at the Coombe Hospital in submitting a report to the company doctor.
On the basis of the evidence given at the Court hearing, and which appears not to have been before the Rights Commissioner, the Court is of the view that the award of £1000 was excessive in this case. The Court, accordingly, upholds the appeal and reduces the award to a sum of £650 as compensation for the delays incurred.
Signed on behalf of the Labour Court
30th June, 1998______________________
Enquiries concerning this Decision should be addressed to Dympna Greene, Court Secretary.