TED1617

FULL RECOMMENDATION

TE/16/30

DETERMINATIONNO.TED1617

r-157937-te-15/DI

INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 8 (1), TERMS OF EMPLOYMENT (INFORMATION) ACTS, 1994 TO 2012

PARTIES :

DUBLIN BUS

- AND -

ONOFRIO AMERICA
(REPRESENTED BY NATIONAL BUS AND RAIL UNION)

DIVISION :

Chairman: Mr Haugh
Employer Member: Mr Murphy
Worker Member: Mr Shanahan

SUBJECT:
1. Appeal of Adjudication Officer's Decision No. R-157937-TE.

BACKGROUND:

2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 8(1) of the Terms of Employment (Information) Acts, 1994 to 2012 on the 25th April, 2016. A Labour Court hearing took place on 3rd June, 2016. The following is the Determination of the Court:

DETERMINATION:

This is Mr America’s (“the Complainant”) appeal from a decision of an Adjudication Officer (r-157937) dated 23 March 2016. The Adjudication Officer decided against the Complainant and held that his complaint was not well-founded. The notice of appeal was received by the Court on 25 April 2016. A Court hearing took place on 3 June 2016.

The Factual Matrix

The parties aread idemin relation to the material facts. They can be succinctly stated as follows. The Complainant has worked as a bus driver with Dublin Bus (“the Respondent”) since July 2007. He has a contractual entitlement, in certain specified circumstances, to receive “Occupational Injury Benefit” from the Respondent in accordance with the terms of an agreement between the Respondent and SIPTU and NBRU detailed in correspondence dated 19 June from the Respondent to the Trade Unions.

The Complainant was involved in an incident on 10 February 2015 while driving for the Respondent. A car broke a red light and drove across the path of his bus. This required him to brake suddenly.

On 11 February 2015, the Complainant attended his GP who certified the Complainant as unfit for duty for one week due to soft tissue injury. Neither party submitted a copy of the relevant medical certificate to the Court.

On 12 February 2015, the Complainant completed and signed a standard form used by the Respondent and entitled, “Investigation of Industrial Accident”. The Complainant set out the details of the aforementioned road traffic incident of 10 February 2015 and stated:

“At 21:30 that evening I felt pain in my left shoulder and arm. Pain worsened overnight. The following day I was in a bad way and I had to go and see my GP. He told me that I have a soft tissue injury and certified me off work for 1 week. Due to see him again next Monday.”

The Complainant sought to avail himself of the Respondent’s occupational injury scheme, referred to above. The request was considered by the Complainant’s Depot Manager. The latter reviewed CCTV footage of the incident of 10 February 2015 and determined that any injury the Complainant presented with had not resulted from the incident. The Depot Manager advised the Complainant in writing by letter dated 19 February 2015 of his decision to refuse him access to the occupational injury scheme.

The Complaint

The Complainant alleges that the Depot Manager’s letter of 19 February “did not satisfy the requirements under [the Terms of Employment (Information) Act 1994] for notification of change of contract, in this instance section 4 of the CIE welfare scheme.”

Discussion

The Court asked the Complainant’s representative whether or not the Complainant could qualify for payment of an occupational injury payment under the Respondent’s scheme in the future were he to satisfy the agreed qualifying conditions for this payment. The representative advised that the Complainant could so qualify.

It follows, therefore, that the Respondent has not made any change to the Complainant’s terms and conditions. The Respondent simply determined, in all the circumstances, that the Complainant did not satisfy the necessary qualifying conditions to avail himself of the Respondent’s occupational injury benefit scheme when he applied for payment thereunder in February 2015.

Nothing occurred - as a consequence of the events outlined to the Court or otherwise - that triggered any obligation on the part of the Respondent to issue the Complainant a written notification pursuant to section 4 (or any other section) of the Terms of Employment (Information) Act 1994.

Decision

The appeal fails and the decision of the Adjudication Officer stands.

The Court so determines.

Signed on behalf of the Labour Court

Alan Haugh
1st July 2016______________________
SCDeputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.