INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969
SOONER THAN LATER
- AND -
Chairman: Mr Duffy
Employer Member: Mr Pierce
Worker Member: Ms Ni Mhurchu
1. Unfair dismissal.
2. The dispute before the Court concerns a worker who was employed by a distribution Company from February 2001 to November 2002. The worker concerned was employed in a dual capacity as a van driver and warehouse attendant. His daily tasks involved loading vans, short loading individual consignments, delivering goods. Over a period of nine months his work performance deteriorated, a lot of forgetfulness, leading to consignments not being delivered, damage to vans, goods lost, important letters forgotten.
The Company issued a warning letter to the worker on 15th November 2002, outlining the company's concerns regarding his behavioural changes. His employment was subsequently terminated on 19th November 2002.
The worker referred the case to the Labour Court on 15th April 2003 in accordance with Section 20(1) of the Industrial Act 1969.A Labour Court hearing took place on the 11th June 2003, the earliest date suitable to the parties.
The worker agreed to be bound by the recommendation of the Court.
3.1 The worker concerned was unaware of his behaviour changes in the job and felt the Company should have made him aware of these changes.
2. The Company had never verbalised their concerns about his health until they were informed of his medical condition.
3. The worker does not recall being offered alternative employment on return to work.
4.1 The worker concerned needed constant supervision as a result of his behaviour. As no medical certificate was received, his behaviour was attributed to carelessness.
2. The Company maintains that it would have been negligent in allowing the worker to continue in the job.
3. The Company verbally offered the worker alternative employment on his return to work but did not refer to the alternative employment in the warning letter as dismissal was not intended at the time.
The Court accepts that if considered in isolation the work performance of the claimant in the period prior to this dismissal was such as to justify the employer in invoking disciplinary procedures. However, the possibility that the conduct complained of could be attributable to the claimant's illness might at least have been considered.
The Court fully accepts that the claimant could not have continued to work as a driver at the material time or since. Nonetheless a more appropriate response at that time might have been to place the claimant on sick leave for a period to allow further investigations of his medical condition.This could have avoided the claimant being dismissed for what amounted to misconduct or incompetence at a time when by reason of his medical condition he could not have been held culpable for what had been occurring.
In all the circumstances of this case the Court recommends that the Company should offer and the claimant should accept an ex-gratia payment of €1,500 in full and final settlement of his claim.
Signed on behalf of the Labour Court
11th July 2003______________________
Enquiries concerning this Recommendation should be addressed to Jo O'Connor, Court Secretary.