FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : BUS EIREANN - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr McGee Employer Member: Mr Pierce Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioners recommendation R-030524-IR19-04/NO.
BACKGROUND:
2. The appeal concerns a worker who commenced employment in 2002 as a part/time school bus driver based in the Company's Drogheda depot. The worker claimed that the Company discriminated against her when filling regular drivers' positions, and also in relation to a number of other matters. The Company rejected the claim. The dispute was referred to a Rights Commissioner for investigation. On the 22nd March, 2005 the Rights Commissioner issued his recommendation as follows;
I have given this matter careful consideration and I must come to the conclusion that the Company have given the complaints serious attention and I broadly agree with this interpretation of the issues. However, I accept that some loss has been established and I recommend the claimant be paid the sum of €3,000 in compensation in full and final settlement of the losses and the other matter.
On the 23 rd March, 2005 the Union appealed the Rights Commissioner's recommendation to the Labour Court. The Court heard the appeal on the 16th June, 2005.
UNION'S ARGUMENTS:
3. 1. The claimant has been used by the Company as a Category 2 driver, used to augment regular drivers when there is a shortfall due to illness, holidays etc,. She has also acted as a seasonal driver covering holidays (May to September) and also provided cover for drivers who are on long term illness.
2. The Union appealed the Rights Commissioner's recommendation because it did not address the substantive issue of the claimant becoming a regular full- time bus driver in Bus Eireann in a manner that is consistent with Clause 4.3 (Filling of Vacancies) of the Company Union agreement. Clause 4.3 clearly gives employees the right to attain full-time employment. While the Rights Commissioner recommended a payment of 3,000 in compensation for the unfair treatment and loss of earnings that she suffered, the Union had proven that the losses were in the region of €7,133.
3. The claimant in her application for employment with the Company stated that she was a former employee of Dublin Bus and had availed of voluntary severance in 1998.
4. The Company policy of not re-employing ex-employees who have taken voluntary severance does not apply in this case as she was never employed by Bus Eireann. Whether the Company likes it or not she is now an employee and as such she is entitled to the rights that have been agreed between the Union and the Company.
COMPANY'S ARGUMENTS:
4. 1. The claimant does not qualify under Clause 4.3 as she is not deemed suitable for employment as a road passenger driver with Bus Eireann.
2. The claimant was informed in April, 2004 that her application for a full-time driver's position in the Company could not be accepted because she had received voluntary severance compensation from Dublin Bus.
3. The claimant on her own admission could not cope with driving in Dublin Bus and reverted to the conductor grade. She failed to disclose this fact on her application form to Bus Eireann or at interview, which, if it had been known would have meant that she would not have been employed at all.
4. She has a proven bad attendance record with Dublin Bus which has not been disputed.
5. The Rights Commissioner dealt fully with all issues and his recommendation clearly states that the €3,000 was "in full and final settlement of the losses and the other matters"
DECISION:
The Court, having considered the written and oral submissions of the parties, decides that in the unique circumstances of this case alone, and not to be used as a precedent in any other or future case, the claimant should, in addition to the €3,000 awarded by the Rights Commissioner for losses, be accorded the opportunity to become a full-time bus driver subject to meeting the required standard. The Rights Commissioner's recommendation is varied accordingly.
Signed on behalf of the Labour Court
Raymond McGee
25th July, 2005
tod______________________
Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.