Labour Court Database __________________________________________________________________________________ File Number: CD89691 Case Number: LCR12715 Section / Act: S20(1) Parties: BUS EIREANN - and - FEDERATED WORKERS UNION OF IRELAND |
Restoration of pay and compensation for legal expenses incurred by a school bus driver.
Recommendation:
5. Having considered the submissions of the parties and the
additional evidence presented at the hearings, the Court is of the
view that much of the conflict of the evidence regarding the
reporting/non-reporting of defective brakes arose from poor
communications. The Driver in his written weekly report sheets
did not detail any brake defect but regarded his verbal complaints
regarding air-pressure as reporting some deficiency in the overall
braking-system. The Company and the representative of the garage
on the other hand regarded the driver's verbal complaints as
referring only to an air leak.
It cannot be established when precisely the brake-fluid leaked
thereby rendering the hydraulic system ineffective. It occurred
at least some days before the accident on the 23rd September
because the P.S.V. inspection disclosed that there was no brake
fluid for "some time".
The Court is of the view that the driver should have been aware of
the fact that the rear-brakes on the vehicle were not working. In
the circumstances the Court accepts that it is reasonable for the
Company to consider that the driver did not do enough by way of
clear reporting to ensure the road-worthiness of the vehicle
before driving it again.
There is conflicting evidence regarding discussions prior to the
Company hearing of the case but from the evidence presented it
seems that the driver was unfamiliar with the procedures and with
the role of his Union. This was not the responsibility of the
Company and in the Court's opinion did not result in the driver
being unfairly treated.
While the Court considers that the driver did not take sufficient
reasonable steps to ensure that the nature of the defect was
clearly known to his employer the Court does not consider that he
"fabricated the brakes - problem to cover up his culpability for
the accident" as claimed by the Company. Accordingly the Court
recommends that his suspension be reduced to one week and that he
be compensated to the extent of his net loss for the second week.
The Court does not recommend concession of the Union's claim in
relation to the Court costs incurred by the driver.
Division: CHAIRMAN Mr Brennan Mr O'Murchu
Text of Document__________________________________________________________________
CD89691 RECOMMENDATION NO. LCR12715
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 20(1)
PARTIES: BUS EIREANN
and
FEDERATED WORKERS UNION OF IRELAND
SUBJECT:
1. Restoration of pay and compensation for legal expenses
incurred by a school bus driver.
BACKGROUND:
2. In September, 1988, the driver concerned with this dispute was
involved in a road traffic accident while driving a school bus.
There were no personal injuries arising from the accident but
there was some damage to vehicles. The Company held an
investigation into the incident in October, 1988. Following the
investigation the driver who was present at the inquiry, was
suspended from work for two weeks without pay. In May 1989, the
driver and the Company were prosecuted before the District Court
and the Company was found guilty of having a faulty vehicle on the
road. The driver was acquitted of all charges. The Union contend
that, as the driver was acquitted of all charges, he should be
compensated for the loss of the two weeks pay arising from his
suspension. He should also be compensated for the legal costs
incurred when arranging for his own legal representation at the
District Court hearing. The Company refused to re-open the case
on the grounds that it had followed established practice for other
grades within the organisation and that the driver was afforded
every opportunity to state his case at the Company's investigation
of the incident. He also had the right to appeal his case to the
Company's Regional Manager. As the Company did not agree to
attend a Labour Court conciliation conference the Union requested
a Labour Court hearing under Section 20 of the Industrial
Relations act, 1969, agreeing to be bound by the recommendation of
the Court. The Court investigated the dispute on 6th November,
1989 but adjourned the investigation to allow for the attendance
of witnesses. The resumed hearing on 19th December, 1989 was
attended by 2 Inspectors and 1 Maintenance Engineer - Dublin Bus,
the garage mechanic who serviced the bus, the school bus driver
and a member of the Garda Siochana who investigated the accident.
UNION'S ARGUMENTS:
3. 1. The Company was found to be guilty in law for having a
faulty vehicle on the road. The worker concerned with the
dispute was found to be 'not guilty' in law and had all
charges against him dropped. This must supercede the Company
decision to impose a penalty and fine on the worker for an
offence that he was found 'not guilty' of.
2. The worker was interviewed on 10th October, 1988, by his
Supervisor and District Manager. He was advised that the
discussion was merely procedural and that he would not need
representation as it was acknowledged by his immediate
Supervisor that the accident occurred through no fault of his
own. The worker was amazed to find later that the Company did
not take the lenient view expounded. They found the worker
culpable and suspended him from work for two weeks without pay
eventhough it was acknowledged by a Supervisor that he was not
guilty of the accident.
3. In September, 1988 the worker and his Supervisor had a
discussion/argument about the condition of the school bus.
The worker complained that the demister was not working, there
were problems with the gearbox and that while he could not be
specific there was something wrong with the brakes. The main
thrust of the discussion/argument was that the particular bus
was taken to the garage in February, 1988, for a general
overhaul. It was not returned until September, 1988, and in
the worker's opinion it came back in a similar or worse
condition than when it was taken away.
4. The garage report (supplied to the Court) concerning an
inspection of the bus on 6th September, 1988, states (point 4)
"air leak on brake system" (air went low in bus if left
standing for period of approx five hours). The Company
maintain that a comprehensive check was carried out on the
bus. If a comprehensive test was carried out, why did the
garage concerned not check the braking system fully? When the
brake system was checked by the Carriage Office it was found
that the hydraulics in the braking system were bone dry. This
would indicate that there was no brake fluid in the system for
quite some time, indicating that the bus would have been
returned to the worker, having been seven months in the
garage, comprehensively checked on 6th September and yet
nobody discovered the brake fluid problem.
5. The Garda Sergeant who examined the bus after the
accident stated at the District Court hearing that the bus was
a 1976 model. The brakes were very bad. The speedometer was
not working. The bus did not have a service brake and it was
in a dangerous and defective condition. The brake fluid
reservoir was dry and it would have been impossible to control
the vehicle in terms of braking. He also explained that while
the air system controlled possibly two of the brakes, the
hydraulic system was needed to control the back brake. This
would indicate that the air system alone was not sufficient to
control all of the braking system.
6. The worker is not required to have a knowledge of the
mechanics/braking system of the vehicles which he drives. He
is adamant that he discussed/reported the braking system in
the form of the air pressure going low and that the brakes
were "just not right" with his supervisor and with the garage
mechanic. The worker is solely dependant on the garage for
the diagnosis of defects and for the general maintenance of
any vehicles he drives while working for the Company.
7. The worker had to engage his own solicitor to represent
him at the District Court hearing. As all charges against the
worker were dropped and the Company found to be negligent he
should be compensated for legal expenses incurred.
COMPANY'S ARGUMENTS:
4. 1. The worker was involved in a traffic accident on 23rd
September, 1988. Following the accident he stated that he had
failed to stop the bus because the brakes were bad. On 6th
September, 1988 a mechanic carried out a comprehensive check
on the vehicle, following complaints from the worker. No
serious problems were found on the bus following exhaustive
testing. The report of the mechanic states that at no time
was the question of the brakes mentioned to him by the worker.
No faults were found with the brakes. The worker informed the
gardai at the scene of the accident that the brakes on the bus
were faulty and that he had reported the matter to the
Company. He later repeated this to the Company District
Manager and to the Regional Maintenance Engineer.
2. The Company held its own investigation and disciplinary
hearing into the matter in October 1988, almost 8 months
before the District Court hearing. As the worker is a
part-time school bus driver there is no formal agreement
between the Union and Company on disciplinary procedures. The
Company applied the established practice for other grades
within the organisation. The worker was advised that he had
the right to have a representative, either a trade union
official or a shop-steward present at the disciplinary
hearing. He was also advised that he had a right of appeal to
the Regional Manager against the outcome of the hearing.
3. In the course of the disciplinary hearing the worker was
unable to offer any satisfactory explanation as to why he
claimed, on the date of the accident, that he had reported
faulty brakes to his Inspectors, when it transpired that at no
time had he reported this fact. He could not explain why he
had not contacted the garage or advised the Company by way of
his weekly operating reports, of any difficulty he was
experiencing with the bus. In view of all the factors it was
the opinion of the District Manager that the worker had
fabricated the brakes problem to cover up his culpability for
the accident. The worker was given two weeks suspension from
work without pay as a disciplinary measure. He was advised
that if he wished to appeal the decision he could return to
work pending that appeal. The worker decided not to appeal
the penalty.
4. Air pressure will always drop when a bus is left
standing over a period of time. It is always necessary to
build up air pressure when starting a bus following such a
period. The engine running has the effect of topping up the
pressure.
5. It is custom and practice in the Company that legal fees
incurred by workers are not paid by the Company. It has been
practice that Unions provide the services of a solicitor for
their members. A solicitor could have been supplied in the
worker's case. Furthermore, if the Company had to pay the
worker's legal expenses this time it would create a serious
precedent not only for the Company but also for the other
Companies in the C.I.E. Group.
RECOMMENDATION:
5. Having considered the submissions of the parties and the
additional evidence presented at the hearings, the Court is of the
view that much of the conflict of the evidence regarding the
reporting/non-reporting of defective brakes arose from poor
communications. The Driver in his written weekly report sheets
did not detail any brake defect but regarded his verbal complaints
regarding air-pressure as reporting some deficiency in the overall
braking-system. The Company and the representative of the garage
on the other hand regarded the driver's verbal complaints as
referring only to an air leak.
It cannot be established when precisely the brake-fluid leaked
thereby rendering the hydraulic system ineffective. It occurred
at least some days before the accident on the 23rd September
because the P.S.V. inspection disclosed that there was no brake
fluid for "some time".
The Court is of the view that the driver should have been aware of
the fact that the rear-brakes on the vehicle were not working. In
the circumstances the Court accepts that it is reasonable for the
Company to consider that the driver did not do enough by way of
clear reporting to ensure the road-worthiness of the vehicle
before driving it again.
There is conflicting evidence regarding discussions prior to the
Company hearing of the case but from the evidence presented it
seems that the driver was unfamiliar with the procedures and with
the role of his Union. This was not the responsibility of the
Company and in the Court's opinion did not result in the driver
being unfairly treated.
While the Court considers that the driver did not take sufficient
reasonable steps to ensure that the nature of the defect was
clearly known to his employer the Court does not consider that he
"fabricated the brakes - problem to cover up his culpability for
the accident" as claimed by the Company. Accordingly the Court
recommends that his suspension be reduced to one week and that he
be compensated to the extent of his net loss for the second week.
The Court does not recommend concession of the Union's claim in
relation to the Court costs incurred by the driver.
~
Signed on behalf of the Labour Court
Kevin Heffernan
24th January, 1990 ----------------
A. McG/U.S. Chairman