Labour Court Database __________________________________________________________________________________ File Number: CD87607 Case Number: LCR11591 Section / Act: S67 Parties: BUS EIREANN - and - NATIONAL BUSWORKERS' UNION |
Claim for the restoration of a driver to his marked in route and payment of travel expenses.
Recommendation:
6. Having considered the submissions made the Court is of the
opinion that the Company acted correctly in filling the vacancy for
the Wexford driver on the basis of the information available from
the Chief Medical Officer and this decision was accepted by all the
parties concerned at the time. The Court does not therefore
recommend concession of the Union's claim but does recommend that
the driver concerned be offered the next vacancy when it becomes
available in the Wexford depot.
Division: Mr O'Connell Mr Collins Mr Devine
Text of Document__________________________________________________________________
CD87607 RECOMMENDATION NO. LCR11591
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 67
PARTIES: BUS EIREANN
and
NATIONAL BUSWORKERS' UNION
SUBJECT:
1. Claim for the restoration of a driver to his marked in route
and payment of travel expenses.
BACKGROUND:
2. This claim concerns a worker who has been employed by the
Company as a bus driver since February, 1978. The worker suffers
from alcoholism. At the end of 1981 the worker's illness had
reached an acute state and it was brought to the attention of the
Company's Chief Medical Officer (C.M.O.). The worker was examined
by the C.M.O. seven times over the following two years under the
Company's programme for problem drinking. During this time the
worker continued to hold the job of driver. In April, 1984 the
worker was admitted to hospital for treatment and the C.M.O.
certified him unfit to drive a public service vehicle. In August,
1984, following the worker's discharge from hospital he was again
certified by the C.M.O as being unfit to drive a public service
vehicle. The C.M.O. informed the worker that if he was satisfied
after two years that he had overcome his illness his case could be
re-examined.
3. In October, 1984, after he had accumulated 26 weeks sick leave,
the worker came within the terms of the Company's welfare Scheme.
Under this scheme the worker obtained two years' extended sickness
benefit. Also in October, 1984 the Company filled the worker's
position in Wexford by moving a driver from Rosslare Harbour. In
September, 1986 the Union made representations to have the worker
examined by the C.M.O. and on 12th December, 1986 he was certified
fit to resume duty as a bus driver. The worker returned to driving
duties on 21st December, 1986. As his marked-in route was being
worked by another driver he had to take up a position driving at
Rosslare Harbour.
4. In January, 1987 the Union claimed that the worker should be
restored to his marked-in route, which was in Wexford, and that
appropriate expenses be paid to him for the period he had to travel
to Rosslare. The Company rejected the claim. No agreement was
reached through local negotiations and on 5th March, 1987 the
matter was referred to the conciliation service of the Labour
Court. A conciliation conference was held on 10th April, 1987 but
no agreement was reached. On 29th October, 1987 the case was
referred to the Court for investigation and recommendation, the
agreement of the two parties to such a reference was obtained on
that date. A Labour Court hearing was held on 25th November, 1987
in Waterford.
UNION'S ARGUMENTS:
5. 1. It is quite clear that Management took a decision that
this driver would not be allowed to drive again. Their
decision to fill his position while he was out ill was
deliberate. They knew that there was no possibility of
providing alternative employment for him.
2. The Company completely ignored the provisions of the
Programme on problem drinking. This programme which is now in
operation in many industries was designed to help employees to
overcome one of the prevalent diseases in society today. By
its behaviour in this case the Company added an extra burden
on the driver who not alone had an uphill battle in fighting
the disease but had added pressure and worry when during his
recovery it was being openly stated by the Company that he
would not be allowed drive again.
3. The worker has to travel daily to Rosslare which is a
heavy cost to him. The Union is justified in claiming that
the worker's service be restored to him and that appropriate
expenses be paid to him for the period he has had to travel to
Rosslare.
4. When he was examined in September, 1984 the driver queried
the C.M.O. as to his position when the two year period of
extended benefit would elapse. The doctor informed him that
if at the end of two years he was satisfied that he had
overcome his illness he would see no reason why he should not
return to his driving duties.
5. It came to the Union's attention in early 1985 that the
Company's local management in Waterford had indicated that the
worker would not be allowed to resume his driving duties at
any time in the future. The Union informed the Road Passenger
Manager that as the driver was absent on long term illness any
decision as to his future as a driver would have to be made by
the C.M.O. The Union's local representative also objected to
the driver's position being advertised and filled. The
Company filled the position and this action was clearly in
breach of agreed procedure. In the case of illness the
procedure is that the position is covered by a spare relief
driver for the duration of the illness. A permanent vacancy
would only exist when an employee is deemed unfit to resume up
to the end of the period of time allowed.
COMPANY'S ARGUMENTS:
6. 1. In October, 1984 the Company was faced with a situation in
respect of the worker whereby because of his on-going problems
with alcoholism and his repeated failure to conform to the
requirements under the Company's programme for problem
drinking that neither local management or the C.M.O. could any
longer accept the responsibility for him as a public service
vehicle driver. Consequently, it was decided to internally
advertise the Wexford position and this was done. A driver
based in Rosslare Harbour applied for and was appointed to the
vacancy. There were no union objections to this course.
2. The Company could not justify the continuance of a
situation whereby a vacancy, on-going for 2.50 years, would be
covered at great expense on overtime or by drivers from
another depot on expenses when all available evidence
indicated that the worker's continuing problem would prevent
him being fit to resume as a bus driver.
3. The Court will appreciate that the Company has shown, at
considerable expense, every consideration and compassion to
the worker for quite a number of years to allow him try to
come to terms with his problem. The worker resumed work in
his previous employment as a bus driver and in fact has
maintained the same level of earnings as enjoyed by the
occupant of the Wexford position.
4. Concession of the Union's claim would have serious
repercussive effects resulting in claims for expenses by the
driver who applied for and filled the Wexford position by
virtue of his seniority and by drivers who filled the
consequential vacancy at Rosslare Harbour. It would also mean
the displacement of the present driver in the Wexford
position.
RECOMMENDATION:
6. Having considered the submissions made the Court is of the
opinion that the Company acted correctly in filling the vacancy for
the Wexford driver on the basis of the information available from
the Chief Medical Officer and this decision was accepted by all the
parties concerned at the time. The Court does not therefore
recommend concession of the Union's claim but does recommend that
the driver concerned be offered the next vacancy when it becomes
available in the Wexford depot.
~
Signed on behalf of the Labour Court
John O'Connell
________________________
17th December, 1987 Deputy Chairman.
T.O'M/J.C.