FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : ELLIS & EVERARD (IRELAND) LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Flood Employer Member: Mr McHenry Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Recommendation IR159/98/MR.
BACKGROUND:
2. The Company is involved in the chemical transportation business and currently employs a staff of 14 in its Limerick base. The dispute concerns one worker, a driver, who commenced employment with the Company in October, 1994. In March, 1997, the worker complained that he had incurred an injury during the course of his duties and that the injury was attributable to his having been driving a particular vehicle. The worker has been on sick leave since, with the exception of a period in Summer, 1997, when he assumed light duties. He has been paid sick pay for approximately 8 months only. The Union, on behalf of the worker, claims that he could have returned to work some time ago had the Company addressed certain matters in respect of the vehicle in question. The Union sought full reinstatement of the workers' sick pay, retrospective to January, 1998, the date from which it has been withdrawn.
The Company rejected the Union's claim on the grounds that it had acted fairly and reasonably in respect of the worker's complaint. The matter was the subject of an investigation by a Rights Commissioner, who found that the Company had acted reasonably in terminating his sick pay. The Rights Commissioner noted that the situation was far from satisfactory and suggested that the parties meet to resolve all the outstanding issues. The Rights Commissioner recommended that the Union's claim should fail.
The Union appealed the Rights Commissioner's Recommendation to the Labour Court, on the 2nd of June, 1999, in accordance with Section 13 (9) of the Industrial Relations Act, 1969. The Court heard the appeal, in Limerick, on the 24th of August, 1999.
UNION'S ARGUMENTS:
1. The particular vehicle in question caused considerable hardship to the worker and to anyone else who drove it for any period of time. Modifications were made to the chassis of the truck after its purchase, which quite clearly changed the manoeuvrability of the chassis, causing discomfort to the driver and the shifting of loads while in transit. In this respect Section 96 of the Road Traffic (Construction, Equipment and use of Vehicles) Regulation 1963, S.I. No. 190 of 1963, Clause 3(a) clearly was not adhered to by the employer.
2. In a case involving Bus Eireann, defective vehicles were reported by drivers for a period of time, but the reports were not acted upon, for a time, by the Company. The drivers eventually took a stand and refused to drive the vehicles. The drivers' stance was upheld by a Rights Commissioner and following a subsequent Labour Court appeal.
3. In this particular case, the worker did not take such action to highlight his case and, for his commitment to the Company, he has received a back injury which has affected his life, along with the lives of this family. Although, there is a pending legal case relating to this issue, the industrial relations procedures must be seen to apply in respect of this dispute.
4. In view of Section 6 of the Safety, Health and Welfare at Work Act, 1989 and the S.I. No. 190 of 1963, for the Company to deny the worker sick pay, while knowing that his injury was as a direct result of its irresponsible actions, is punitive. Two medical certificates have been provided stating that the worker is fit for work, if provided with the proper equipment. If he had been provided with the proper equipment in 1994, he would not have been subjected to the pain and suffering which he has received as a result of the Company's stance on this one vehicle.
COMPANY'S ARGUMENTS:
1. The Company operated in a responsible, fair and reasonable manner throughout this entire matter. Upon receipt of a formal complaint from the worker with regard to the Company truck, the Company immediately referred him for examination by the Company doctor, at the Company's expense and, thereafter, placed him on sick leave in accordance with the doctor's recommendation, again at a significant cost to the Company. The Company paid him for a total of eight months at a net cost of £4,651.00 for that period. In the absence of an agreement with the Union in this regard, there can be no question but that the Company has shown itself to be extremely generous indeed. By continuing to pay the worker for a period of 8 months, the Company has by far exceeded the terms of typical sick pay schemes both across industry and within the chemical industry itself. The Company could, however, not be expected to continue to make such payments on an indefinite basis. Accordingly, the Company, on the 29th of January, 1998, gave him notice of its decision to terminate his sick pay.
2. Since the worker was initially placed on sick leave, in March, 1997, the Company arranged for him to be examined by the Company doctor on no less than four occasions so as to ensure that an up to date assessment of his medical condition could be maintained. In addition, his own doctor saw fit to refer him to a Consultant Neurosurgeon and a number of detailed tests were carried out, which included MRI and CT scans. During this time, it was abundantly clear that no definitive medical position could be established by either the Company's doctor or the worker's own doctor. The worker's Consultant Neurosurgeon, in his report to the Company, stated his opinion that it was very difficult to know the workers precise situation and that he appeared to have this fixed idea about the suspension of some of these trucks. Moreover, the worker continued to complain of backache even whilst carrying out light duties at the Company. In such difficult circumstances, it is clear that there was no alternative available to the Company but to place him on sick leave, pending the outcome of all the relevant and necessary tests and, in particular, receipt of confirmation by medical advisors that he was fit to carry out full normal duties as a driver. In so doing, the Company acted entirely in accordance with its obligations both at common law and under the Safety, Health and Welfare at Work Act, 1989.
DECISION:
The Court having considered the written and oral submission made by the parties agrees with the Rights Commissioner findings and upholds his Recommendation.
The Court, therefore, rejects the appeal.
The Court so decides.
Signed on behalf of the Labour Court
Finbarr Flood
14th September, 1999.______________________
MK/BCChairman
NOTE
Enquiries concerning this Decision should be addressed to Michael Keegan, Court Secretary.