Labour Court Database __________________________________________________________________________________ File Number: CD92644 Case Number: AD92223 Section / Act: S13(9) Parties: TANKFREIGHT (IRELAND) LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Clarification of Appeal Decision AD No. 61292.
Recommendation:
5. The Court has considered all of the views expressed by the
parties and the documentation provided.
The Court is of the view that the Company has acted in a
responsible manner in its handling of this case. In all the
circumstances the Court does not find that the Company acted
unreasonably in dismissing the worker concerned.
Division: MrMcGrath Mr McHenry Mr Walsh
Text of Document__________________________________________________________________
CD92644 APPEAL DECISION NO. AD22392
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: TANKFREIGHT (IRELAND) LIMITED
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Clarification of Appeal Decision AD No. 61292.
BACKGROUND:
2. In August, 1991, the worker concerned was involved in an
accident when the articulated lorry he was driving overturned,
causing the loss of its cargo of diesel and petrol. Following an
investigation by the Company the worker was dismissed in January,
1992. The matter was referred to a Rights Commissioner who
recommended that the worker be reinstated. The Rights
Commissioner's recommendation was appealed to the Labour Court by
the Company. In May, 1992, the Labour Court issued Appeal
Decision No. AD16292 which provided for the reinstatement of the
worker concerned with effect from 1st July, 1992, and that he be
issued with a final warning, his driving to be monitored for one
year and that any lapse from acceptable driving standards during
the year should result in his dismissal. The worker concerned was
reinstated with effect from 1st July, 1992. On 31st July, 1992
the worker was involved in an accident when the lorry he was
driving collided with a diesel fuel pump while making deliveries
at Clashmore, Co. Waterford. Following the accident the worker
was suspended on pay, pending an investigation. On 11th August,
1992, a disciplinary hearing took place, following which the
worker was dismissed. The Union appealed the decision. At the
appeal hearing the worker's dismissal was confirmed. The Union
claims that the Company's action in dismissing the worker was
harsh and extreme, that under the circumstances in which the
accident occurred it was inevitable that such an accident would
occur, and that the manoeuvring involved which led to the accident
is distinctly different from the substantive issue of the worker's
driving ability. The Company rejected the claims. The Union
referred the matter to the Labour Court. The Labour Court hearing
took place on 9th November, 1992.
UNION'S ARGUMENTS:
3. 1. It was extremely difficult for the driver to gain access
to make the delivery because of the kerbside siting of the
fuel pumps.
2. There is growing awareness nationally of the unsuitability
of kerbside fuel pumps.
3. The extent of the damage to the diesel pump in this
incident was due to the lack of protection barriers around the
pumps.
4. The Union's Industrial Engineer/Health and Safety Advisor
investigated the accident. In his opinion it was an accident
that was waiting to happen for the following reasons:
(A) the premises i.e. O'Malley's Garage, Main Street, is
unsuitable for making such deliveries because of parked
cars on both sides of a narrow street,
(B) because of parked cars and the small space available, the
driver is required to drive blind as his off-side
reflector mirror cannot be used due to the angle created
between the driving cab and his rear articulated tanker.
In addition the driver is required to get as close to the
pumps as possible so that he will not obstruct the flow of
traffic,
(C) the obligation that the tanker-driver should ask the
owners of all the parked cars to move them is unrealistic.
It could be extremely difficult to contact the owners and
it would result in considerable delays,
(D) Unless drivers have the assistance of helpers in making
such deliveries in the future, similar accidents could
occur, or a pedestrian could be injured or killed.
COMPANY'S ARGUMENTS:
4. 1. Under Section 4 of Statutory Institute number 314 of 1979,
made under the Dangerous Substances Act, 1992, a carrier is
responsible for the employment of a competent person to carry
out his duties. Despite training and retraining, the Company
cannot be satisfied that the worker concerned is competent.
2. The worker has already been involved in a serious accident
which did not involve any other road user.
3. The worker was given training in the Company's driving
school for Heavy Goods Vehicles in the United Kingdom.
4. The worker was given time with other drivers, travelling
as an observer during the period prior to his course in the
U.K.
5. One week after returning from the course the worker
concerned was involved in an accident which could have been
avoided by taken the following action.
(A) getting help to direct him while reversing,
(B) reversing a short distance at a time and checking until
the movement was completed,
(C) request the removal of cars that were in his way. This
is an option all the Company's drivers apply at this
particular location,
6. The Company has a duty under law and a moral duty to the
public at large, to endeavour to avoid the risk of injury or
damage to person or property. Given the extent of the
accidents that have happened, the Company cannot take any
further risks.
DECISION:
5. The Court has considered all of the views expressed by the
parties and the documentation provided.
The Court is of the view that the Company has acted in a
responsible manner in its handling of this case. In all the
circumstances the Court does not find that the Company acted
unreasonably in dismissing the worker concerned.
~
Signed on behalf of the Labour Court
Tom McGrath
___________________
30th November, 1992. Deputy Chairman.
F.B./J.C.