Labour Court Database __________________________________________________________________________________ File Number: CD88620 Case Number: LCR12265 Section / Act: S67 Parties: OFFALY COUNTY COUNCIL - and - IRISH TRANSPORT AND GENERAL WORKERS' UNION |
Claim for re-instatement of a part-time fireman.
Recommendation:
6. Having regard to the requirements of the job the Court does
not consider that the County Council acted unreasonably or without
compassion in retiring the worker concerned and does not therefore
recommend that any compensation greater than the normal retirement
gratuity is warranted. The Court does not therefore recommend
concession of the Union's claim.
Division: Mr O'Connell Mr Collins Mr Devine
Text of Document__________________________________________________________________
CD88620 RECOMMENDATION NO. LCR12265
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 67
PARTIES: OFFALY COUNTY COUNCIL
(REPRESENTED BY THE LOCAL GOVERNMENT STAFF NEGOTIATIONS BOARD)
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
SUBJECT:
1. Claim for re-instatement of a part-time fireman.
BACKGROUND:
2. The employee who is fifty two years of age, has worked for the
County Council as a part-time fireman for the past twelve years.
As a result of various fire tragedies a fire services council was
established to review operational practices within the fire
service at national and local level. Among the various
recommendations accepted were a fifty five years retirement age
and an annual medical examination for firemen. In January, 1988
the Council requested that all part-time fire brigade personnel
attend a medical examination. The worker's medical took place on
the 18th January, 1988. The medical referee wrote to the Council
on the following day stating that the employee's eyesight appeared
to be deficient and requested the opinion of an ophthalmic
optician, who confirmed that the worker's eyesight was below the
standard required for firefighters by the Council. In April, 1988
the Council advised the Union by letter of its intention to
terminate the worker's employment. The Union requested that a
second professional opinion be obtained and the Council agreed.
The ophthalmic optician employed by the Union stated in her report
that the employee's vision "was within normal limits for a fifty
two year old," and that the "worker should have no difficulty
carrying out his duties." The Council however maintained that the
worker's vision was below the required standard, and he was
informed that his employment was being terminated with effect from
21st June, 1988. The Union claimed that the worker met the
requirements, and was capable of performing fire fighting duties.
Local discussions failed to resolve the issue of the worker's
reinstatement and the dispute was referred to the conciliation
service of the Labour Court on 12th April, 1988. A conciliation
conference was held on the 4th October, 1988 but no agreement was
reached. The dispute was referred to the Labour Court for
investigation and recommendation on the 16th November, 1988. A
Court hearing was held in Tullamore on the 17th January, 1989.
UNION'S ARGUMENTS:
3. 1. The worker has been a member of the Council's retained
(part-time) fire service for twelve years. During this time
he has shown a high degree of competency ability and
enthusiasm and is held in high esteem by fellow firemen. He
has never been the subject of any disciplinary action. When
the Council advised the Union of its intention to terminate
the worker's employment on the grounds that his eyesight was
below the required standard the Union requested an independent
ophthalmic optician to examine the worker. The optician's
report indicated that the employee's sight was "normal for a
fifty two year old with a small spectacle correction, and from
a visual point of view he should have no difficulties carrying
out the duties of a fireman. The Union brought this
information to the Council's attention, notwithstanding this,
the employee's service with the brigade was terminated on 21st
June, 1988. In spite of the naming by the Union of other
members of the brigade who wore glasses, the Council was
adamant in its decision which was taken on the medical
guidelines furnished by the Department of the Environment.
The Council is basing its action on a false premise. The
guidelines which have been consistently quoted by the Council
as designed for applicants for the position of firemen, are in
respect of recruitment grades - not firemen of long service
(details of the medical guidelines supplied to the Court).
2. Even on the basis of these inappropriate guidelines the
worker was unsuccessful in only one element - the section
dealing with 'eyesight' which requires:
"unaided vision not less than 6/12 in both eyes. No
artificial aid to vision is acceptable for use by
operational firefighters. Spectacles cannot be worn with
breathing apparatus."
The Union claims that this section may not be invoked against
a long serving fireman because of the fact that the use of
breathing apparatus by firemen over the age of forty five
years should be avoided. When this point was made to the
Council in the presence of LGSNB officers, the discrepancy of
no existing medical guidelines for long service firemen was
accepted by the Council who stated that a definitive statement
on the matter was awaited from the Department of the
Environment.
3. The worker has been unfairly treated by the Council
because his employment was terminated within only three years
of his scheduled retirement. In so doing, the Council denied
him the opportunity to earn approximately #6,500 per annum.
His employment was terminated on dubious grounds and without
adequate compensation. While others of more senior age were
given the opportunity of enhanced severance payments, the
worker was dismissed with a paltry compensation. The Union
have submitted authoritative medical advice that the employee
is capable of performing the duties of a fireman. It is
contrary to natural justice to apply the same physical
qualifications to a fifty two year old man as applies to a
twenty one year old recruit. His only failing is that he is
ageing and in these days of high unemployment can be readily
supplanted by the ever present reserve of the youthful
unemployed.
COUNCIL'S ARGUMENTS:
4. 1. The Council advised the Union that if the worker
considered that he could satisfy the required medical
standards then he could obtain another optician's opinion on
this matter. In May, 1988 the Council received a letter from
the Union's ophthalmic optician stating that the worker's
visual acuity was within normal limits for a fifty two year
old and that with spectacle correction his visual acuity could
be 6/6 in either eye. However the operating guidelines on
medical requirements for firefighters stipulate that
spectacles cannot be worn with breathing apparatus equipment
and also the standard required by the Council is a minimum of
6/12 unaided vision in both eyes.
2. It came to the notice of the Council that the worker could
not qualify for a retirement gratuity if his employment was
terminated in April, 1988 as he would not have had the
required twelve years' service. In these circumstances the
employee was informed that he would be retained as a part-time
fireman until 21st June, 1988 on which date he would qualify
for a retirement gratuity. He was, in the meantime,
restricted to station duties until this time.
3. The employee underwent a medical examination on four
occasions. The first time was on recruitment in 1976, when he
passed the requirements, his visual acuity being 6/6 in both
eyes. He also undertook and passed a medical examination in
1982, prior to a breathing apparatus course. In 1986 the
Council introduced annual medical examinations for all fire
service personnel following a direction issued to all councils
by the Department of the Environment. The employee undertook
and passed a medical examination in August, 1986. His
eyesight was described by the medical referee as being "better
than 6/12." The purpose of the medical examinations is to
determine if firemen are fit to undertake the demanding job of
operational fire fighting. The Council has to ensure that
certain medical standards are maintained by their fire
fighting personnel. The standard requirement by the Council
with regard to eyesight is visual acuity of not less than 6/12
in either eye. The worker failed to comply with the eyesight
requirement in his last medical examination. His visual
acuity of 6/18 in both eyes was considerably below the minimum
required.
4. The medical requirements for fire fighters are based on
the guidelines issued by the Department of the Environment in
1983. Certain defects including visual acuity of less than
6/12 in either eye, render fire fighters unsuitable for
operational duties. It should be noted that no artificial aid
to vision is acceptable for use by operational firemen.
Spectacles cannot be worn with breathing apparatus equipment.
The guidelines issued in 1983 are currently under review. It
is the Council's understanding that it will be recommended
that recruit firemen have unaided vision of not less than 6/6
in either eye and that fire authorities will be advised that
this recommendation and others relating to medical
requirements should be taken into account in medical
examinations of fire fighters.
5. The Council at all times treated the worker humanely. He
was given the benefit of two medical opinions and was allowed
to remain in employment (although not on operational
fire-fighting work) until he could qualify for the retirement
gratuity. In the past two years six part-time firemen in the
Council have retired on grounds of failing to comply with
medical requirements. Poor eyesight accounted for four of
these cases. If a fireman fails a medical examination, and
the defect which disqualifies him can be rectified, the
Council affords him every opportunity to reach the requisite
standard. The medical standards required by the Council are
essential for an effective fire fighting service. The Council
is ultimately responsible for ensuring that such standards are
maintained. Cognizance must not only be taken of public
safety but also the safety of fire fighters, who would be put
at risk through any lowering of medical standards.
RECOMMENDATION:
6. Having regard to the requirements of the job the Court does
not consider that the County Council acted unreasonably or without
compassion in retiring the worker concerned and does not therefore
recommend that any compensation greater than the normal retirement
gratuity is warranted. The Court does not therefore recommend
concession of the Union's claim.
~
Signed on behalf of the Labour Court
John O'Connell
________________________
9th February, 1989 Deputy Chairman.
T.O'D./J.C.