INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
SIFCO TURBINE COMPONENTS
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Ms Jenkinson
Employer Member: Mr Doherty
Worker Member: Ms Ni Mhurchu
1. Appeal against Rights Commissioner's Recommendation IR21508/04/JH.
2. The Company, SIFCO Turbine Components is a manufacturing/ light engineering Company engaged in the repair and overhaul of the hot turbine components of aircraft engines and the turbine components of land based engines.
The dispute before the Court concerns an employee who has been on sick leave, due to asthma, since March 2004. A certificate indicating that the employee was fit to resume work was submitted to the Company on May 10th 2004. The worker was subsequently referred to the Company doctor and was found on a number of occasions to be unfit to return to work. Following a further medical assessment the employee's consultant reported that with the appropriate protective equipment, the employee could resume his position with the Company.
The Union is seeking implementation of the Rights Commissioner's Recommendation.
The Company were not prepared to allow the employee to return to work using the protective equipment on the basis that it would be impractical and may lead to other health and safety issues for both the employee in question and other staff.
The dispute was referred to the Right's Commissioner's Service who issued her Recommendation on 1st March 2005 as follows:
"Based on the submissions made I recommend that the claimant be provided with a position sought by the Union and the equipment recommended by his consultant. The protocol for the claimant regarding his duties and his operational arrangements together with his compliance with the necessary protective clothing and his responsibilities in that regard to be agreed with the Union within four weeks of the date of issue of this recommendation. The trial period to be for two months and subject to review at fortnightly intervals. In putting in place this trial period I wish to re-iterate the claimants responsibility in the matter. It is not solely a matter for the employer to ensure the safe and correct operation of any equipment provided to him."
The employer appealed the Rights Commissioners Recommendation in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court Hearing took place on 14th September 2005.
3. 1. An Agreement exists between the parties in relation to the Company "providing a clean, safe and agreeable working environment with supporting facilities". The provision of the clean air hood to allow the employee return to work is fair and reasonable in the circumstances.
2. No independent risk assessment has been carried out by the Company in relation to the needs of the worker.
3.The Employment Equality Act, 1998 Section 16 (3) B states that employers shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special needs or facilities. The Company has not done so in this case.
4. 1. The Company can not allow the employee to resume work until he is fit to do so without the use of protective equipment.
2. There are Health and Safety Risks associated with allowing the employee return to work with the protective equipment for both himself and other staff members.
3.The Rights Commissioner's decision did not take into account the practical difficulties associated with the employee carrying out his duties while wearing the protective equipment.
The Court has considered the employer's appeal of the Rights Commissioner's recommendation. The employer appealed the decision of the Rights Commissioner on the basis that the wearing of protective equipment proposed would endanger both the claimant and his colleagues, would be impractical in terms of carrying out of his duties and could potentially endanger his health even further.
Having considered the views of the parties expressed in their oral and written submissions, the Court is of the view that all reasonable efforts should be made to assist the claimant's return to work. As this will require the wearing of protective equipment, the Court recommends that all interested parties, including professionals in the safety and health care area, should get together to decide on the most practical approach to enabling his return to duties while at the same time, safeguarding health and safety.
Consequently, the Court concurs with the Rights Commissioner's findings and upholds all aspects of her decision, including the recommended trial period and reviews. Therefore, the employer's appeal fails.
The Court so decides.
Signed on behalf of the Labour Court
7th October, 2005______________________
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.