Labour Court Database __________________________________________________________________________________ File Number: CD87775 Case Number: LCR11549 Section / Act: S67 Parties: TEXACO (I) LTD - and - ITGWU;ITGWU |
Alleged breaches of the Company/Union Agreement.
Recommendation:
6. The Court, having considered the submissions made by the
parties, is of the view that the Company did not act unreasonably
in this case. The Court accordingly recommends that the claimant
should agree to see the Company doctor prior to resuming work.
Division: Mr Fitzgerald Mr Shiel Mr O'Murchu
Text of Document__________________________________________________________________
CD87775 RECOMMENDATION NO. LCR11549
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 67
PARTIES: TEXACO (IRELAND) LIMITED
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION (NO. 1 BRANCH)
SUBJECT:
1. Alleged breaches of the Company/Union Agreement.
BACKGROUND:
2. The worker concerned is employed as a tanker driver at the
Company's Dublin terminal and his work involves the conveying of
petrol and diesel to service stations and customers throughout the
Dublin terminal delivery area.
3. The worker concerned returned to work in February, 1987, after
a long illness and since then, up to September, was out sick on
two separate occasions, the first being of two days' duration, the
second of eleven days' (he was hospitalised during the course of
the second period). On the 3rd September he received clearance to
return to work, both from his own doctor and from a psychiatrist
he had attended. However, Management insisted on him seeing the
Company doctor before he resumed work, in line with section 15.6
of the Company/Union Agreement which states "the Company reserves
the right, where excessive absence occurs, to have such absentee
examined by the Company doctor". The worker refused this
instruction. At a local level meeting on the 15th September, the
Union, on his behalf argued that his sick leave was not excessive
and that an examination by the Company doctor was not warranted.
The Company rejected this and argued that his absence had to be
considered in the light of his overall record, which was as
follows -
1984 - 59 working days - (4 spells)
1985 - 64 working days - (4 spells)
1986 - 115 working days - (1 spell).
The Company further argued that as his previous absence (from 7th
July, 1986 to 2nd February, 1987) was due to a drink-related
problem and that he had attended the Company doctor at that time,
prior to returning to work, there was no reason why he should not
attend him again. The Union, in reply, rejected the Company's
stance and accused it of being in breach of paragraph 20.2 of the
Company/Union Agreement ("it is agreed that no coercive or
aggressive action by either side will be taken on any issue until
it has been fully processed in accordance with the procedures set
out above. Pending completion of the negotiations the status-quo
will be maintained") and that the worker concerned should be paid
in full during negotiations, even though he would not be working.
The Company agreed to retain him on the payroll on the
understanding that the matter would be dealt with speedily. On
the 21st September, the matter was referred to the conciliation
service of the Labour Court but a conciliation conference, held on
the 6th October (earliest suitable date) failed to resolve the
dispute and on the 14th October, the issue was referred to the
Labour Court for investigation and recommendation. A Court
hearing was held on the 5th November, 1987.
UNION'S ARGUMENTS:
4. 1. The worker concerned received clearance to return to work
on the 3rd September, 1987, both from his own doctor and the
psychiatrist he had attended. In spite of this, the Company
refused to allow him to resume his duties until he had seen
the Company doctor. The Company is therefore in direct
breach of section 15 of the Company/Union Agreement on the
basis that the clause was inserted, by mutual agreement, to
allow Management deal with excessive absences by individuals
who may be regarded as malingerers.
2. This man is not a malingerer. He had a genuine illness
and is anxious to return to work immediately. The Company is
preventing him doing so on the basis of its demand, which is
totally unacceptable.
3. The Union suggested to the Company that since it claimed
that this case was unique, it should have requested a meeting
with the shop steward or Union and dealt with the case as a
one-off. These suggestions were ignored.
4. The Union respectfully requests the Court to find in its
favour and recommend that the worker re-commence his
employment immediately on foot of his own medical experts
advice.
COMPANY'S ARGUMENTS:
5. 1. The worker's record of absence in the three preceding
years has been 59, 64 and 115 working days on a total of 9
occasions. Because of shift patterns he normally works a
mixture of 8 hour and 10 hour days. These figures exclude
week-ends and bank holidays and relate to a sickness absence
of approximately 12, 14 and 25 weeks in each of the subject
years. For the 12 months ended September 4th, 1987, the
absence amounts to 122 working days. By any standards this
must be considered excessive absence. The Company contend
that the pattern since 1984 (taken in conjunction with the
medical background) is such that the Company is correct in
exercising its right to refer him to the Company doctor.
2. The referral of employees to Company doctors is
widespread practice in the oil industry and in industry
generally. It has always been a policy in Texaco but it is
used with great care and consideration. Following his
consultation with the Company doctor earlier in the year the
worker subsequently advised the Terminal Manager that he had
found the doctor friendly and helpful.
3. The Union has alleged that the Company has taken coercive
action by not allowing the worker to return to work before
resolution of the matter in dispute. At the Company/Union
meeting held to discuss the matter on Tuesday, September
15th, the Union insisted that he be retained on the payroll.
The Company acceded to this on the understanding that the
matter would proceed through the negotiating procedures
without delay. The Company maintains that no coercive action
is being taken.
4. During this period of absence he is in receipt of full
Truck Operator pay entitlement for a Shift Class I driver,
namely #388.87 per week. In addition no deduction will be
made for Unplanned Overtime Allowance, Service Pay and
Voluntary Health Insurance contributions which are paid
annually but would equate to #37.21 per week, i.e. a gross
weekly sum of #426.08.
5. The Company believes its refusal to allow him to resume
driving duties is fully justified and the minimum action
required by the circumstances. Indeed, failure to take this
minimum action could be regarded as irresponsible and
potentially dangerous
6. The issue addressed by the Company was one in which an
employee, who has a serious absentee record, who had a drink
problem, was a member of Alcoholics Anonymous, is again
taking a drink. In addition the Company doctor has advised
that he should not be permitted to resume work (which
involves driving and transporting petroleum products) until
he has visited him. The Company contends it acted in a
reasonable and responsible manner and totally within its
rights under Clause 15.6 of the Company/Union Agreement.
RECOMMENDATION:
6. The Court, having considered the submissions made by the
parties, is of the view that the Company did not act unreasonably
in this case. The Court accordingly recommends that the claimant
should agree to see the Company doctor prior to resuming work.
~
Signed on behalf of the Labour Court
27th November, 1987 Nicholas Fitzgerald
D.H./P.W. Deputy Chairman