FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DUBLIN BUS - AND - A WORKER NATIONAL BUS & RAIL UNION DIVISION : Chairman: Mr Flood Employer Member: Mr Pierce Worker Member: Mr O'Neill |
1. Appeal of Rights Commissioner's Recommendation IR/12021/02/GF
BACKGROUND:
2. The issue involves a refusal by the Company to pay the claimant, a Bus Driver, assault pay under a Dublin Bus Scheme. The Driver had been severely traumatised and had been off work for a period of seven weeks. He attended the medical officer, and was sent for counselling. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 28th February, 2003 the Rights Commissioner issued his recommendation as follows:-
"I have come to the conclusion the claimant was assaulted and he should be entitled to payment under the assault pay scheme. I require the Company to pay him for the period in question".
On the 12th March 2003 the Company appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 30th April 2003.
COMPANY'S ARGUMENTS:
3. 1 The Company are appealing the Right's Commissioners Recommendation on two grounds.
- That the assault payment scheme is a non statutory additional payment scheme that is outside the terms of the labour relations machinery.
- The 'test' of what constitutes an assault as determined by the Rights Commissioner is a legalistic one and is not in keeping with the spirit of the Assault Payment Scheme.
3. The bus, an RV type has a protective screen fitted as do all Dublin buses. The design and installation of these screens are as a result of eight years of consultation with the Union and reflects the imput and requests of all parties to the process. The incident concerned, involves an unknown male who spat at the Driver through the audio holes of the protective screen of the bus.
4. The incident that is being contested by the Union does not qualify for benefits under the assault payment scheme It did not result in a personal injury being sustained by the Driver.5. The benefits of the Scheme are payable only to those who qualify under the terms agreed with the Unions. The possibility of assault pay being payable to those who are not actually personally injured would leave the Company open to a level of claims that would severely impact on the financial viability of the Company.
6. The Rights Commissioner's recommendation appears to treat the fact that the Driver underwent counselling as proof of a personal injury having taken place. This assertion is not proven. Counselling of itself cannot be considered as proof of an injury.
UNION'S ARGUMENTS:
4. 1. The Driver was operating his Bus, when a male passenger became extremely aggressive and abusive towards him. The passenger attacked the safety screen and spat at the Driver. The spittle through the perforated section of the protective screen lodging on the Driver's beard and mouth. The Driver was severely traumatised by the event and had to take sick leave from work.
2. The Driver went to his local Doctor, who in turn sent him to Beaumont Hospital for blood tests. A couple of days later he attended the Chief Medical Officer who recommended him for counselling. He was still attending counselling up to the time he returned to work seven weeks later.
3. The Company and the Union entered into agreement on Assault Payment Schemes. Despite numerous amendments to the Scheme over the years the issue of payment concerning staff having to take sick leave due to assaults involving spitting was never in dispute. In fact, dozens of members have been paid in accordance with the provisions of the scheme in such incidents.
4. The Company only changed the method of payment in such situations in recent years. No consultations or discussions ever took place involving the Unions regarding this change of policy. The Assault Payment Scheme is a collective arrangement and as such the Union are entitled to be consulted on any decision that alters the benefits of the Scheme to its members.
5. The Assault Payment Scheme is an agreed Scheme, therefore the Company were not entitled to alter the provisions of the Scheme without agreement. For many years drivers were afforded the provision of the scheme in identical circumstances. If the Company were experiencing problems in relation to abuse etc. any proposal to amend the Scheme would have been favourably considered by the Union.
DECISION:
It would appear that the Assault Payment Scheme, while clearly stating that there must be "personal injury" arising out of an incident in order for payment to be made, has been applied in a flexible manner over the years. It is accepted by the Company that in some instances prior to the installation of the protection shields for drivers, money was paid in cases of spitting.
It is also accepted by both sided that in certain instances where employees did not qualify clearly under the definition as outlined in the agreement some gesture was made by the Company.
It is the Court's view that while there is a written agreement, which lays down the rules of the Assault Payment Scheme, it has not been rigidly applied in the past and that management have applied their discretion when dealing with individual cases. This situation has suited both sides on occasions in the past.
However, it is clear that the present lack of clarity is no longer satisfactory, and therefore, the Court recommends that the parties enter into discussions in order to address management's concerns in relation to the scheme and Union's concerns in relation to its members.
Given the flexibility that seems to have applied in the past it would appear that management have applied its perceived prerogative in this case as it has in other situations. The Court having considered all the information before it upholds the Company appeal and rejects the Rights Commissioners Recommendation.
Signed on behalf of the Labour Court
Finbarr Flood
12th May 2003______________________
JB/MB.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jackie Byrne, Court Secretary.