Labour Court Database __________________________________________________________________________________ File Number: CD9073 Case Number: LCR12779 Section / Act: S20(1) Parties: DUBLIN BUS - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Claim by the Union that the dismissal of a worker was unfair.
Recommendation:
5. The Court has considered the submissions made in this case.
It notes that the driver in question was still in the probationary
period of his employment during which the Company has complete
discretion as to his suitability. Whilst not seeking in any way
to modify this discretion the Court is of the opinion that in this
case the Company might as an "ad misericordiam" measure reinstate
the driver in question on a probationary basis in a further and
final test of his suitability.
Division: Mr O'Connell Mr Brennan Mr Devine
Text of Document__________________________________________________________________
CD9073 RECOMMENDATION NO. LCR12779
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 20(1)
PARTIES: DUBLIN BUS
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Claim by the Union that the dismissal of a worker was unfair.
BACKGROUND:
2. The worker concerned commenced employment as a temporary bus
driver in July, 1989 and operated out of the Donnybrook depot. He
was recruited on a twelve months probationary period. Part 2(5)
of the application form states:-
"Temporary employment may be terminated at any time by the
Board, by giving one week's notice, or the payment by the
Board of one week's notice."
On Thursday 21st December, 1989 while operating his normal route
his bus was involved in an accident (details supplied to the
Court) striking an overhanging tree and causing considerable
damage. Prior to this the worker had been involved in another
accident while reversing a bus in the depot yard. He was
dismissed by the Company with the issue of a week's notice on the
3rd January, 1990 on the grounds that he was unsuitable for the
post of bus driver. The Union claims the dismissal was unfair and
requested the Company to reinstate the worker concerned. The
Company refused to do so. Local discussions failed to resolve the
issue and Management was unwilling to attend a conciliation
conference. The Union referred the dispute 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 23rd February, 1990.
UNION'S ARGUMENTS:
3. 1. The accident happened when the driver took avoiding action
because of the stupidity of a motorcycle courier who was
trying to squeeze between a truck and the bus. In order to
avoid the courier the driver moved to the left and in doing so
the bus struck an overhanging tree. At no time did the bus
mount the footpath. Because of the speed of the accident the
driver did not get details of the motorcycle registration.
Following this incident the worker concerned was not allowed
to drive and was left idle until 3rd January, 1990.
2. In the previous incident in October, 1989 the worker
concerned was going beyond his duties to serve the Company.
On this date the Company was short of staff and a supervisor
asked the worker concerned to help out. The bus allocated to
him was parked in the depot at the wash. He reversed the bus
off the wash and proceeded to turn in the yard. In order to
avoid an oncoming bus and as he steered the bus veered to the
right and struck a parked truck. He had not braked, and the
sole cause of the accident was his shunting the bus off the
wash. He was given a penalty of one day's recorded suspension
and one day's corrective training in the driving school. He
had 4 or 5 driving checks prior to this first accident which
he passed and 1 or 2 after the accident. He was told these
were good. In all other aspects of his work i.e. fare
collection, attendance, conduct etc his record was perfect.
At the internal hearing his district supervisor advised the
worker to appeal, stating he would not mind having the worker
back. As regards his driving ability he has driven trucks for
the past ten years and is accident free.
3. The Union believes that the circumstances of the accident
itself, given the instant reaction required, do not warrant
dismissal, particularly as the driver was not negligent and
did not mount the footpath. The sole factor taken into
account by the Company on this occasion was the cost of the
accident. In relation to the location of the accident shop
stewards have confirmed that the particular tree has been
struck on several occasions, none resulting in dismissal.
Only a few weeks ago the top deck of another bus driven by a
mechanic was damaged as a result of striking the same tree
which has now been cut down as a result.
4. The majority of bus drivers have some accident
involvement, however small, in their first year but the Union
cannot recall anyone being dealt with so severely as the
worker concerned. The term "corrective training" refers to a
practice which was implemented in the past year by the Company
and without discussions with the Union. It emerged that staff
involved in accidents were first sent on refresher courses
and, if there were further accidents, "corrective training."
It emerged in dealing with other cases that corrective
training was in effect a final warning and subsequent removal
from driving duties. The major difference was that other
staff reverted to conducting duties and did not lose
employment.
5. The Union is not aware of another case where a driver
involved in accidents did not get the benefit of a refresher
course before receiving "corrective training." Had this
practice been extended to the worker concerned he would still
be employed. The worker concerned did not have union
representation at any of the disciplinary hearings. Had he
been represented at the first one the Union representative
would undoubtedly have realised the seriousness of "corrective
training" so soon and would have objected.
6. For the past year the Company has been trying to finalise
a driver-safety programme with a view to reducing accidents.
The Union has just received the Company's final proposal for
the scheme. While all drivers will eventually be involved
initially only those with three or more preventable accidents
will be monitored. (One more than the worker concerned).
This only involves the driver in stage 1 of the programme and
is nowhere near dismissal. This programme was evidently ready
for issue at the time of the worker's appeal and it seems most
unfair that the sentiments of it were not extended to him. It
seems to the Union that the Company is making an example of
the worker concerned. Given the actual circumstances of the
accident rather than the cost, and previous custom and
practice in dealing with accidents the Union contends that the
worker has been unfairly dismissed. At most, something
similar to the proposed driver safety programme would have
been a more appropriate penalty.
COMPANY'S ARGUMENTS:
4. 1. Following a number of incidents, the worker concerned was
given a week's unsuitability notice on 3rd January, 1990. His
Union appealed this decision on his behalf through the
internal appeals procedures. However, the decision was upheld
and the worker's employment ceased on the grounds of
unsuitability on 14th January, 1990.
2. The worker concerned was recruited as a driver on twelve
months probation as stated in his contract of employment.
Section 13 states:-
"Your employment will be probationary for the first twelve
months, during which time you will remain temporary.
Termination of this agreement within the probationary
period shall be at the discretion of the Company."
The Company reserves the right to terminate the employment of
any worker found unsuitable within their probationary period.
The Company feels it has taken the correct course of action in
this case.
RECOMMENDATION:
5. The Court has considered the submissions made in this case.
It notes that the driver in question was still in the probationary
period of his employment during which the Company has complete
discretion as to his suitability. Whilst not seeking in any way
to modify this discretion the Court is of the opinion that in this
case the Company might as an "ad misericordiam" measure reinstate
the driver in question on a probationary basis in a further and
final test of his suitability.
~
Signed on behalf of the Labour Court
John O'Connell
________________________
10th April, 1990. Deputy Chairman
T.O.'D./J.C.