LCR13823

Subject:
Appointment as signalman at Little Island.

Recommendation:
5. Given all the circumstances of this case the Court considers
in equity that the complainant should be restored to the position
of signalman on the Cobh/Cork line.

The parties should immediately discuss the implications of the
above recommendation and how best it can be implemented.

The Court does not find grounds for the payment of compensation.

The Court so recommends.

Division: MrMcGrath Mr Brennan Mr Walsh

Text of Document__________________________________________________________________

CD92429 RECOMMENDATION NO. LCR13823


INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990

PARTIES: IRISH RAIL

and

NATIONAL BUS AND RAIL UNION


SUBJECT:
1. Appointment as signalman at Little Island.

BACKGROUND:
2. The worker concerned commenced employed with the Company as a
temporary depotperson in March, 1985. In June, 1988, he was
appointed as a signalperson at Little Island station. In June,
1990, the worker was selected for locomotive driver training
pending a medical examination. He was found unfit for driving
duties but fit to continue working as a signalperson. The worker
was absent on sick leave from 13th September, 1990. In December,
1990, he entered hospital to receive treatment which would
hopefully result in the worker being passed fit for driving
duties. In February, 1991, following a medical examination the
worker was allowed back to work but was deemed unfit to work as
signalperson. He resumed work on 6th February, 1991, as a
depotperson in Cork Coaching. When he resumed work the worker was
requested to sign a rehabilitation form. On 7th February, 1991,
the Union was informed by the Company that the worker concerned
had been deemed permanently unfit for signalling duties and that
he would be re-examined by the Company's Chief Medical Officer
(C.M.O.) in six months time. In April, 1991, the worker was
instructed to perform signalling duties at the main line
signalcabin at Cork station. In August, 1991, following
investigation and discussions involving the C.M.O. and the
worker's specialist, the worker was passed fit to perform
signalling duties. The worker sought re-instatement to his
position as signalperson at Little Island. He was informed by
management that as the Little Island operation had been reduced
from a three-man operation to a two-man operation, his position no
longer existed. The Union claims that in circumstances where a
job is suppressed, it is the junior person's position that is
suppressed. The Company rejected the claim. Local level
discussions failed to resolve the issue and the matter was
referred to the Labour Relations Commission. A conciliation
conference was held on 10th June, 1992, and as no agreement could



be reached, the matter was referred to the Labour Court on 23rd
July, 1992. The Court hearing took place on 6th October, 1992.

UNION'S ARGUMENTS:
3. 1. The worker concerned was second in seniority in the
three-man operation in Little Island.

2. The option was open to the worker to continue on sick
absence for a period of one year while under medical care,
during which time he was entitled to have his position kept
open for him. The welfare scheme in operation in 1990 has
since been amended to allow for the positions of workers on
sick absence to be kept open indefinitely. This change was
brought about because of the Company's fear that the one-year
option might contravene the Unfair Dismissals Act.

3. The Company in its letter dated 23rd February, 1992,
stated that, in accordance with regulations the worker
concerned signed a rehabilitation form. There is no such form
or regulation covering staff in such circumstances. The
worker was told that if he did not sign the form he would not
be allowed resume work. In signing the form the worker did
not relinquish his right to have his job in Little Island kept
open, pending his medical review.

4. The Union's interpretation of the C.M.O.s report of 5th
February, 1992 is that the worker was fit for depotperson duty
but regarding fork-lift driving and signalling duties he must
be limited and remain in that state until re-examined in six
months time, i.e. the worker's position would be reviewed in
six months.

5. The C.M.O. passed the worker fit for all duties including
signalling when he reviewed his condition at the end of six
months.

6. The worker was wrongly removed from his position at Little
Island. His rights have been ignored. He should now be
re-instated to this position in Little Island.

COMPANY'S ARGUMENTS:
4. 1. In January, 1991, the worker was found medically unfit by
the Company's Chief Medical Officer to perform the duties of
signalperson. His employment would have eventually been
terminated had it not been possible to redeploy him in an
alternative position. He had previously been found medically
unfit for training as a locomotive driver having been selected
for training through the normal selection process.

2. If he had been found fit at the trainee locomotive driver
pre-entry medical examination, he would have commenced
training in the normal way, i.e. he would not have remained as
a signalperson at Little Island.




3. As he was found medically unfit for signalling duties the
Company could not have reinstated the worker in Little Island
Cabin. The worker accepted in writing the terms of his
redeployment.


4. The worker's relief duties performed at Cork Cabin arose
out of the need to provide cover for a very brief period in
the absence of staff with the requisite knowledge and in the
context of additional supervision.


5. When the worker was again found fit for signalling duties
in July, 1991, the position he held as a signalperson at
Little Island had been suppressed four months previously, on
foot of revised signalling arrangements prompted by a decline
in business on the Cork/Cobh service.


6. The worker did not suffer any loss in earnings on foot of
his re-deployment to the depotperson position at Cork Station.
In fact his earnings increased significantly.


7. The worker has been dealt with correctly in accordance
with the medical certification in his case. There is now no
position available to him in Little Island Signal Cabin. Both
positions in this cabin are occupied by signalpersons in
membership of N.B.R.U. The worker did not suffer a loss of
earnings as a result of his re-deployment which he accepted in
writing. However, even if there had been a loss of earnings,
the worker would not have had cause for complaint as he was
re-deployed in order to keep him in employment.



RECOMMENDATION:
5. Given all the circumstances of this case the Court considers
in equity that the complainant should be restored to the position
of signalman on the Cobh/Cork line.

The parties should immediately discuss the implications of the
above recommendation and how best it can be implemented.

The Court does not find grounds for the payment of compensation.

The Court so recommends.
~

Signed on behalf of the Labour Court


Tom McGrath
_______________________
30th October, 1992. Deputy Chairman.
F.B./J.C.

Note

Enquiries concerning this Recommendation should be addressed to
Mr. Fran Brennan, Court Secretary.