FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : BUS EIREANN - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Compensation.
BACKGROUND:
2. The Worker concerned works as an Engineering Operative in Letterkenny bus station. He was offered the position in November 2000 having previously been retired on grounds of ill-health in February 1999 from bus driving. The Worker was reviewed by the CIE Medical Department in November 2000 and found to be fit for the duties for the position which involved washing and cleaning of buses and station buildings, fuelling and shunting of buses. He remained unfit for Public Service Vehicle driving and 6-monthly medical reviews were stipulated.
In February 2004 a vacancy occurred in the Stranorlar garage. The Worker applied for the post and was unsuccessful. A further vacancy occurred and was filled internally. In June 2004 the post of General Operative/Tyre fitter was advertised externally because the Company would have required an additional operative whether the Worker transferred from Letterkenny or not. The Company position was that the Worker concerned, had he been found fit, would have filled the position. The Company, however, needed to start the recruitment process.
In September 2004 the Area Manager received an internal memo from the Chief Medical Officer stating that the Worker continued to be fit for his duties in Letterkenny but was considered unfit for the position in Stranorlar. The Union queried the Worker's unsuitability for the Stranorlar position by letter in October 2004.
In September 2006 the Union submitted a claim to the Joint Industrial Relations Forum (JIRF), a Company/Union dispute resolution body in Bus Eireann. The Union subsequently rejected the JIRF recommendation and referred the matter to the Labour Relations Commission in June 2007.
The issue could not be resolved at local level. The Union, on behalf of the Worker, referred the matter to the Labour Court on the 22nd June, 2007 in accordance with Section 20(1) of the Industrial Relations Act, 1969, and the Worker agreed to be bound by the Court's recommendation. A Labour Court hearing took place on the 21st May, 2008, the earliest date agreeable to the parties.
UNION'S ARGUMENTS:
3. 1. The Union maintains that prior to the Company arranging for the Worker to attend a medical with the Chief Medical Officer (C.M.O.) to assess his fitness for the Tyre Fitter vacancy it had already decided that the Worker was medically unfit and the company proceeded to advertise the vacancy externally.
2. If the Company was concerned about the fitness of the Worker it should have arranged for a medical with the C.M.O.prior to advertising the post externally.
3. As the Tyre fitter vacancy was based at Stranorlar and the Worker lives nearby he would have reduced his travel costs and time considerably.
COMPANY'S ARGUMENTS:
4. 1.Given the background to the case it was entirely reasonable for the Company to medically assess the Worker's suitability for the Stranorlar position which involves considerably more heavy work than the position in Letterkenny.
2. The Chief Medical Officer, an expert in occupational medicine, found the Worker unfit for the duties of the Stranorlar position.
3. The Company contends that for the Union to attempt to add a further tier to the agreed procedures, having agreed that the JIRF should recommend on the matter, is unfair and seriously undermines the effectiveness of those agreed procedures.
RECOMMENDATION:
The dispute before the Court concerns a claim by the Union on behalf of an Engineering Operative and relates to the procedures used when filling the post of Tyre Fitter/E.O. in Stranorlar Garage. The Union submittedinter aliathat the Company had already decided that the claimant was unfit for the position before advertising it and consequently proceeded to advertise externally, in breach of its own procedures.
The Union submitted the claim to the Joint Industrial Relations Forum, a Company/Union dispute resolution body set up under the agreed Negotiation and Dispute Resolution procedures. The Joint Industrial Relations Forum issued its recommendation on the issue and held in favour of the Company’s actions.
Having considered the submissions of both sides, the Court is of the view that due to the claimant’s medical history and the Chief Medical Officer’s report on his fitness to carry out the duties associated with the position, the Company had no option but to comply with its duty of care to the claimant and consequently was not in a position to consider him suitable for the vacant post.
The Court is satisfied that the conclusions reached by the Joint Industrial Relations Forum in this case should be accepted.
Accordingly, the Court does not recommend concession of the claim.
Signed on behalf of the Labour Court
Caroline Jenkinson
30th May, 2008______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Madelon Geoghegan, Court Secretary.