Labour Court Database __________________________________________________________________________________ File Number: CD88359 Case Number: LCR12125 Section / Act: S67 Parties: BUS EIREANN - and - IRISH TRANSPORT AND GENERAL WORKERS' UNION |
Claim for compensation in respect of loss of earnings of one driver.
Recommendation:
The Court, having considered the submissions made by the parties,
is satisfied that there was a certain amount of confusion among
the parties as to the precise conditions attaching to the post to
which the claimant was appointed in early 1986. The Court is also
of the view that these conditions should have been clarified by
the Company at the time of the appointment.
In all the circumstances of this particular case the Court
recommends that the Company pay the claimant compensation of £500
in full and final settlement of his claim.
Division: Mr Fitzgerald Mr McHenry Mr O'Murchu
Text of Document__________________________________________________________________
CD88359 RECOMMENDATION NO. LCR12125
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 67
PARTIES: BUS EIREANN
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
SUBJECT:
1. Claim for compensation in respect of loss of earnings of one
driver.
BACKGROUND:
2. The driver in question was appointed in 1985 and worked the
Clones to Dublin route which was one man operated. In January,
1986, a vacancy arose in the Dundalk depot. The driver applied
for this post and was successful in his application. His new
roster involved the rotation of operation boards numbers 1 and 2.
Board number 1 was a two person operation, driver and conductor,
and rotated with board number 2 every second week. There was no
built-in overtime to either of these boards. However, there was a
local agreement in existence at the time (subsequently
discontinued) whereby the previous driver and conductor on board
number 1 operated on overtime together, and the overtime was
shared equally between the two men. The new driver was not
eligible for this overtime between January 1986 and September
1987. The Union claims that the driver should be compensated for
loss of overtime earnings during this period. The Company rejects
the claim stating that other overtime was available to the driver
which he refused. As no agreement could be reached in discussions
at local level the dispute was referred to the conciliation
service of the Labour Court on the 9th February, 1988. A
conciliation conference was held on the 13th April, 1988, but no
agreement was reached. The matter was referred to the Labour
Court for investigation and recommendation on the 11th May, 1988.
A Labour Court hearing took place in Dundalk on the 26th October,
1988 - the earliest date suitable to all parties.
UNION'S ARGUMENTS:
3.1 The driver was trained as a one man bus operator by the
Company and worked one-man on the Dublin to Clones route.
The two man roster position in Dundalk was advertised without
conditions regarding overtime. The driver's predecessor
worked all duties without complaint from the Company. In a
1982 Company/Union Agreement, the Company accepted that a two
man operator bus could work a one man, and in a later
agreement they conceded that the driver could work his rest
day one man. A conductor who forfeited his opportunity to
overtime, was compensated under the terms of the 1982
Agreement.
3.2 The Company insisted that the driver must work overtime with
his conductor, but allowed the conductor to work overtime
without the driver (as a parcel attendant) and refused to
share the work equally between both men. Previously, when
drivers and conductors worked overtime and rest days in the
parcel office, each would have an equal claim to same. The
conductor earned approximately £3,000 p.a. more than the
driver in the year ending 1986. When the Union asked the
Company to specify the exact amount, they refused to do so.
The Company agreed that the driver could work his rest day as
a one man operator with a machine and his roster when his
conductor is ill or on holidays, and a one man operator could
work two man at all times. However, working his rest day
meant finishing one shift at one a.m. on Monday and
commencing his next shift at 6 a.m. the same day!
3.3 The Union contends that there was a definite discrimination
in the amount of overtime available to the driver as against
that of his colleagues. Following protracted negotiations on
the Union's claim for access to overtime in 1987 the Company
and the Union were invited to a Labour Court hearing in
September 1987. The Company's case was so weak that they
failed to attend the hearing and conceded the claim for
access to overtime by letter dated 22nd September, 1987
(details supplied to the Court). The fact that the Company
prolonged the discussions in 1986 and 1987 before conceding
the claim without any change in circumstances taking place,
clearly indicates their error on this issue. Therefore the
driver is entitled to compensation for loss of overtime
earnings as a result of the restrictions on his overtime.
COMPANY'S ARGUMENTS:
4.1 The driver had been in receipt of higher earnings for a
period of six months from the date of his appointment before
he applied for a vacancy in Dundalk. He would have been
aware of the conditions and restrictions attached to
operating roster number one. As a result of representations
from his Union, the Company agreed in 1986 that the driver
could work as a one person operator on Sundays, which was
his rest day and this provided him with the opportunity to
enhance his earnings. However, between February 1986 and
September 1987, he refused to work his Sunday rest day on 28
separate occasions when asked. This would have enabled him
to earn approximately £1,800 and reduce any loss he may have
suffered. Over this period the driver worked 63½ hours
casual overtime but refused to work overtime on a number of
other occasions the value of which would have been £238
approximately.
4.2 A similar claim by an engineering operative on stores issuing
duties in Dundalk, for payment of compensation for loss of
earnings, was rejected by the Labour Court. In LCR12010 the
Court did not recommend that compensation be paid to the
employee who had also refused to take up overtime working
which was available to him. The payment of compensation for
loss of earnings in the Company has previously only been made
in situations where employees suffered ongoing losses in
rostered overtime earnings as a result of schemes of
re-organisation where no loss of business is involved and
would have no foreseeable opportunity to enhance their
earnings in the future. That is not the situation in this
case. The payment of any compensation for loss of earnings
suffered by employees who voluntarily opt to change their
routes would mean that the filling of such vacancies
throughout the Company would become extremely costly and
complicated.
4.3 The financial situation in the Company is serious and in its
first full year of operation, taking into account Government
Subvention, expenditure in the Company exceeded revenue by
£5.7 million. In addition, the allocation for the operation
of the school transport system has been cut by 18%. The
Government has given the Company a directive to break even by
1989.
RECOMMENDATION:
The Court, having considered the submissions made by the parties,
is satisfied that there was a certain amount of confusion among
the parties as to the precise conditions attaching to the post to
which the claimant was appointed in early 1986. The Court is also
of the view that these conditions should have been clarified by
the Company at the time of the appointment.
In all the circumstances of this particular case the Court
recommends that the Company pay the claimant compensation of £500
in full and final settlement of his claim.
~
Signed on behalf of the Labour Court
Nicholas Fitzgerald
18th November, 1988 -------------------
TO'D/PG
Deputy Chairman