FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : BUS EIREANN - AND - NATIONAL BUS AND RAIL UNION DIVISION : Chairman: Employer Member: Worker Member: |
1. Appeal by the Union against Rights Commissioner's Recommendation No. DC 142/96.
BACKGROUND:
2. The appeal concerns a worker who is employed as a bus driver at the Dundalk depot. Since 1992, a set of procedures has been in place in the Dundalk depot to cover emergency situations which require drivers to be available for call-out. An emergency book system has been introduced and the substitution of bus services for the rail service, when the rail line between Dundalk and Northern Ireland is closed, has been defined as an emergency situation. On the 11th February, 1996 the rail line was closed. The Company defined this as an emergency situation. A substantial number of buses was required. Drivers were telephoned at home to ascertain if they were available for duty. The worker concerned did not receive a call-out for duty on that day. The Union claimed that the worker was unfairly treated and submitted a claim on behalf of the worker for a day's pay. Management rejected the claim. The dispute was referred to a Rights Commissioner for investigation. On the 12th August 1996, the Rights Commissioner issued his recommendation as follows:
"If there was a formalised agreement between the parties that emergency call-out of drivers be operated on a strict seniority rotational basis, one could have some sympathy with this claim, but that is not the case.
Both parties acknowledged that seniority was not the recognised criteria for emergency call-outs, in fact it is quite evident that requests for such attendance is conducted on an ad hoc basis, and the level of the ultimate operation depends on not only the number of drivers available but those who are actually prepared to respond to the call-out and come on duty.
I am satisfied that the worker has no substantive grounds for his claim and I therefore recommend that it fails".
(The worker was named in the Rights Commissioner's recommendation).
On the 16th August, 1996 the Union appealed the Rights Commissioner's recommendation to the Labour Court. The Court heard the appeal in Dundalk on the 23rd October 1996.
UNION'S ARGUMENTS:
3. 1. In accordance with the procedures all drivers who were available for the extra work should have been contacted. The worker concerned was the only driver who was not contacted. It is noteworthy that the worker, for a number of years prior to this incident, was the Union's shop steward in Dundalk.
2. The fact that the worker operated the 6.30 a.m. service in Dundalk is not a reasonable excuse for the Company to offer for not contacting him. The Company excuse that it had no idea as to when the work on Sunday evening would terminate is inaccurate. The service terminated at Newry and Management knew this.
3. The train for which bus transfer was required on that evening was the 18.20 Dublin - Belfast, due in Dundalk at 19.43 hours. Allowing for passenger transfers, buses would be expected to depart at 20.00 hours. Even if the claimant was required to operate further than Newry, he would have been able to cover the journey to Belfast and back by 22.00 hours.
4. A number of other drivers operated that Sunday evening, five of whom were rostered for work early next morning (details to Court).
5. The Rights Commissioner referred to the absence of a structured call-out agreement. This would have merit if other drivers were disputing the issue of who or who should not be called out. It is a fact that the claimant was the only driver who was not contacted by the Company. He was deliberately excluded from the opportunity of potential earnings.
COMPANY'S ARGUMENTS:
4. 1. When the emergency situation arose at 18.50 hrs. on Sunday the 11th February, Management decided that, because it was uncertain how far buses would travel or whether overnight stops would occur on Sunday night, it would leave intact and not call out early morning staff required for the Monday morning commuter services. The worker concerned was not called out as he worked a vital commuter service from Dundalk to Dublin at 6.30a.m. every day. There were 2 other drivers in a similar position.
2. Every effort was made in emergency situations to contact and utilise all available drivers but the operation of normal services must be protected. As the claimant worked a vital early morning commuter service he was not called out, given the circumstances of the emergency.
3. The worker concerned has been called out for extra duty on previous occasions (26th May, and 18th August) when it was known that such working would not interfere with his normal Monday roster. On 13th October, the worker was called upon to work but he was unavailable for duty.
DECISION:
The Court finds that the manner in which the drivers were called out resulted in the Company being able to provide sufficient drivers for the emergency service on the evening concerned, without the need to call on the claimant. Drivers are called on an ad hoc basis.
The Court notes the claimant has been called out on a number of occasions.
Given all the circumstances the Court does not find the claimant was discriminated against and accordingly upholds the Rights Commissioner's recommendation and rejects the appeal of the claimant.
Signed on behalf of the Labour Court
Tom McGrath
21st November, 1996______________________
T.O'D./S.G.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.