FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TRALEE TOWN COUNCIL - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal of Rights Commissioner's Recommendation IR17471/03/MR.
BACKGROUND:
2. The worker was employed as a general operative in May, 1995, and was assigned to the refuse service in May, 2000. In 2001, the worker informed the Council that he was suffering from a medical condition related to the exposure of household dust mites. The case was the subject of a previous Rights Commissioner's Recommendation in January, 2003, which recommended that"the Council should continue to limit, as far as practicable, the worker's exposure to dust mites". It is the Union's contention that on two occasions in 2003, the worker was instructed to undertake refuse collector duties and, as a result, suffered severe allergic reactions and consequent loss of earnings / overtime due to having to take sick leave. (In later correspondence to the Court, after checking records, the Council maintained that there was only one occasion in which he was rostered on the refuse truck but that this did not result in a loss of overtime.)
The worker was assigned to the Parks and Open Spaces section in July, 2002. This sector provides relief cover to the Cleansing Section should a shortfall of staff occur. This involves work on road sweeping, 'pram', emptying street bins, refuse trucks, and sewer cleaning.A roster system is in place in the Parks and Open Spaces section whereby overtime that becomes available would be allocated on a roster basis. The Council claims that the worker demanded seniority over other employees in this section. Availability of overtime is highest on the roadsweeper. Overtime on the refuse truck is considerably lower than on the pram and the roadsweeper. The worker claims that working on the pram / roadsweeper does not affect his medical condition.
The Union referred the worker's case, in regard to the two losses of overtime in 2003, to a Rights Commissioner and his recommendation was as follows:-
"In the circumstances, I recommend that the Union should accept that any claim for compensation must fail and that, as far as has been practicable, the Council has limited, and will continue to limit, the worker's exposure to house dust".
(The worker was named in the above recommendation).
The Union appealed the recommendation to the Labour Court on the 23rd of June, 2004, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 25th of May, 2005, in Limerick.
UNION'S ARGUMENTS:
3. 1. The Union does not believe that the Council has "as far as practicable" limited the worker's exposure to the dust mites / house dust.
2. Other employees had been available to undertake the duties on the refuse trucks on the two occasions in 2003. On one occasion another general operative was instructed to "step down" from the refuse truck to be replaced by the worker.
3. The worker suffered a considerable loss of pay as a result of being unable to do overtime on the two weekends in 2003.
COUNCIL'S ARGUMENTS:
4. 1. The Council has accommodated the worker as far as reasonably practical in limiting his exposure to dust mites
2. There are occasions, however, when, due to the absence of other employees the worker is allocated duties such as refuse collection. These occasions are very rare.
3. The worker has sought compensation for loss of overtime. The Council does not accept that any such loss exists or that the worker is entitled to overtime. The Council operates a roster for duties / overtime and the worker is accommodated within this roster.
DECISION:
The Court has considered the views of the parties expressed in their oral and written submissions. Following the hearing, the Court sought additional information concerning the appellant's sick leave absences, details of the opportunities to work overtime hours in comparison with other workers' overtime hours. Having examined all details, the Court concurs with the findings of the Rights Commissioner and, therefore, upholds his recommendation in full.
The appeal fails.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
4th July, 2005______________________
CON/MB.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.