INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Mr Duffy
Employer Member: Mr Grier
Worker Member: Ms Ni Mhurchu
1. Company failure to honour Appeals Tribunal Decision.
2. The dispute concerns a worker who has been employed by the Company for the past five years. He has been disciplined under the Company's Disciplinary and Grievance Procedure and the Appeals Tribunal issued its Decision on the 12th January, 2006. The Tribunal, upon reaching its Decision took cognisance of the claimant's medical background and determined, inter alia, that:
2. "........the date of dismissal should be deferred to enable the Chief Medical Officer to monitor the worker's progress to determine whether the course of counselling which the worker has undertaken leads to observable long term pattern of change in behaviour and outlook.
3. In the interim the worker should be assigned to clerical duties in an office setting without any requirement to deal directly with the public in any way........ ."
The Union claims that the Company has failed to honour Part 3 of the Decision and since that date has suspended the worker with pay. The Company rejected the claim. On the 27th March, 2006 the Union referred a complaint to the Labour Court under Section 20 (1) of the Industrial Relations Act, 1969 and agreed to be bound by the Court's Recommendation. A Court hearing was held on the 15th June, 2006.
3. 1. The Company has failed to honour the Tribunal's findings in respect of assigning the worker to clerical duties in an office setting. It has also failed to allow the worker to attend a medical representative to assess his long term pattern of change behaviour and outlook.
2. The Company should honour its commitment as set out by the Appeals Tribunal in affording the worker an opportunity to satisfy the CMO and the Company in regard to determination in changing his behaviour and outlook going forward and to place the worker in employment in a clerical post in an office setting as per the Decision.
4. 1. The Company had serious concerns in relation to placing the worker in an office setting and therefore, invoked the disciplinary machinery which provides:" that should the outcome of the machinery create a serious problem for the Company, solely on the grounds of safety, then an immediate meeting shall take place between the Company and the Trade Union concerned with a view to satisfactorily resolving the safety issue". The worker's behaviours and interactions with both colleagues and customers constitutes a serious concern relating to safety. Therefore, in accordance with the disciplinary procedure the Company choose not to place the worker in any position which required contact with others.
2. The Tribunal Decision also provided for closure in this matter when it recommended that the worker's monitoring period should end through an appointment with the CMO on Tuesday, 28th March, 2006. It further specified that if at that stage the worker failed to satisfy the CMO and the Company that the worker would be dismissed from the Company's service on the 7th April, 2006. In the event the worker missed this appointment, there has been no progress since and the matter remains in abeyance.
The Court recommends that the Claimant be afforded one further opportunity to be assessed by the Chief Medical Officer. If the Claimant fails to attend or if the CMO is not satisfied that the Claimant can return to work, paragraph 4 of the Tribunal Decision of 12th the January, 2006 should be put into effect.
Signed on behalf of the Labour Court
23rd June, 2006
Enquiries concerning this Recommendation should be addressed to Tom O'Dea, Court Secretary.