Complainant

Respondent

Anonymised Parties

A Worker

An Employer

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00030523-001

28/08/2019

The worker is 55 years of age. He is a widow and the father of five children. He has worked for the Respondent since July 2008 and is based in the South East. He has performed the full range of duties associated with his position including driving a truck as he was the only employee in the office who had the necessary C licence.

In August 2018 the Worker had a medical issue while driving a truck to Dublin as part of his working day. This happened outside Gorey and as he was not sure what was happening to him so he rang an ambulance. He was taken to Wexford General Hospital but was released some hours later after getting the all clear following many tests.

He subsequently attended his own GP as he wanted to get more medical checks to ensure that there was nothing physically wrong with him. These tests were done while he was on annual leave and he returned to work the following Monday without the requirement to take any sick leave.

The Worker continued to perform the full range of duties including working nights and he did truck work without incident until early February 2019. In January 2019 The Worker was required to attend his Doctor to undergo a medical as part of the renewal of his HGV Licence and he successfully passed this medical with no concerns raised.

In early February 2019 the Worker attended a meeting with his Manager at The Worker’s request, to discuss an ongoing concern he had relating to his treatment in the office. The Worker advised the Manager that for some time he had being the subject of a campaign of abuse by a small number of his colleagues in the Office. The Worker had previously been the Branch Secretary in the office. He was involved as the Union Representative when major change was introduced in the office and these individuals blamed the Worker for their increased workload. This was a national agreement with the requirement for local engagement to implement the changes. The Worker requested that this matter be dealt with informally as he did not wish to antagonise these individuals further and only wished the abuse to stop.

The following day the Worker was called into his Manager’s office and advised that he was being removed from all driving duties, including using his own car on delivery. He was advised that he would be referred to Occupational Health for Assessment. This, the Worker contends, was done without any medical support and the Worker was given no reason for his removal from driving. Two weeks later The Worker was contacted by the Occupational Health Service and the Nurse who contacted him advised him that he would not be allowed to drive until such time as he met the Chief Medical Officer and had further tests carried out.

The Worker wrote to his Manager asking him to clarify why he had been removed from all driving duties given that he had passed his recent medical and that he had driven on a regular basis for the Company without incident.

In response The Worker received no explanation other than a single page from the RSA Handbook Section 3.5 “Undifferentiated condition” which, ironically enough was given to the Manager by one of the colleagues the Worker had complained about.

The Worker at this stage referred this case to the Union’s Regional Officer who in turn wrote to Mr LH, HR Manager, seeking an explanation for the Company’s actions . The response the Union received from the Company did not address the issues raised by the Union but rather advised that the Worker was removed from driving as a result of a medical event that the Worker had brought to his Manager’s attention. The HR Manager did not appear to be aware that Medical event had occurred seven months previously, that he had since been cleared through medical tests and had completed the full range of tests necessary for him to renew his HGV licence. He also did not appear to realise that the Worker continued to drive after this incident sometimes seven days a week. The HR Manager also advised that the Worker should forward any Medical information he had to the Chief Medical Officer.

On the 28th February 2019 the Worker once again attended his GP with a view to requesting him to update the Chief Medical Officer in relation to any medical issues he had. His GP confirmed that the Worker had no medical issues with the renewal of his HGV licence. He stated that he was concerned in August 2018 with the Worker’s drinking. He also confirmed he met the Worker in January 2019 and his health had improved significantly and he was satisfied that the Worker had reduced his drinking and it was not a concern.

The Company requested that The Worker should attend the Mater Hospital to undergo some tests which he did and passed them all. They also requested that he attend Aiséirí for 8 counselling sessions. The Worker was required to attend these sessions at his own expense (€40 per session) and given his financial circumstances he was only able to attend one a week which meant that these sessions were spread over eight weeks. At the end of these sessions the Worker was advised by his counsellor that he did not require any further sessions.

The Worker has constantly sought an update from the Occupational Health Service in relation to his case. The Nurse he was dealing with advised that she would have to speak to the Chief Medical Officer. The Worker rang the Chief Medical Officer to seek an appointment, but this request was refused as the Chief Medical Officer advised that any appointments could only be made through the nurse and as a result he remained in limbo.

Throughout this period Union Head Office had been in contact with the Company Headquarters seeking answers for the unacceptable manner in which the Worker was being treated. We advised them that his removal from Driving was unacceptable, was costing the Worker a considerable amount of money as his earnings was affected and also it was causing him stress which in itself was dangerous. As a result, the Company arranged for the HR Manager to meet with the Worker. This meeting took place on the 30th July 2019 and concluded with the HR Manager committing to getting answers to the issues raised by The Worker.

Since that meeting the Worker has received no further correspondence from the Company other than a standard letter received in September 2019 following an absence as a result of work related stress caused by all of this.

In August 2019, following a request from the Worker, a counsellor from Aiséirí wrote to the Chief Medical Officer stating that The Worker required no further treatment.

On the 11th of October 2019 he met with Mr NS Occupational Health Support. This meeting took place after the Worker had complained to his Working Leader that he had no contact from Occupational Health during his absence. He was informed at that meeting that he could now return to normal driving but would be banned from Truck driving until February 2020 when he would be allowed to reapply.

He returned to work on the 14th October 2019 and has been covering a job that entails using a van only.   His GP again wrote to the Company on the 2nd October 2019 and gave him the all clear for all duties.

Union Case

The Union contends that the Worker has been treated unfairly by the Company and this has not only caused him to be stressed bit has also caused him a significant loss of earnings. The Union would advance the following reasons in support:

1.            In February 2019 the Worker was removed from Driving by his Manager following a complaint made by the Worker.

2.            This was done without any medical support and the Company failed to advise him of the reason for this.

3.            The Worker was advised that he would not be returned to full driving duties until he met the Chief Medical Officer who refused to meet the Worker.

4.            The Worker has provided all reports requested, completed medical assessments, and attended counselling at his own cost but has still not been returned to full driving duties.

5.            The Worker met with the HR Manager who undertook to respond to his issues but has not done so.

6.            The Worker is a widowed Father of five and the sole earner in his family.

7.            As a result of his removal from driving duties The Worker has suffered significant financial loss in the order of €23,000.

8.            The Worker has had to take sick leave as a result of the stress this issue has caused him costing him a further loss of earnings.

Claim

The Union is requesting the Adjudicator to find that The Worker has been treated unfairly and to compensate him for both the loss of earnings he has suffered but also for the stress this has caused him and to direct the Company to immediately return him to full driving duties.

The Union are also seeking to have the cost of attending Aiséirí reimbursed to the Worker.

This matter concerns a complaint by the worker who is a postal operative a South East delivery services unit. The worker’s complaint is that he was taken off HGV driving duties on medical grounds and that restrictions have resulted in a loss of earnings. He also cites a claim of being bullied against co-workers.

Background

The worker had two medical episodes in 2018. These consisted of dizziness. The worker believes that colleagues within his office made an issue of his driving in the context of the above and this led to a complaint to his Delivery Services Manager (DSM). The reason this is an issue is that the worker is a HGV driver and his driving ability was been called into question.

The DSN consulted the Eastern Region area manager and the HR manager seeking their advice on the 1st of February 2019. They recommended that the DSN seek the advice of the company's occupational health services which the DSM did on the 5th of February 2019.

Based on his advice the worker was removed from all driving pending further assessments. The workers stated that he had been assessed in the Mater Hospital and and in Ais Eiri at the request of the CMO. The worker was of the belief that all reports on these investigations gave him a clean bill of health.

On the 6th of February 2019 the DSM had a meeting with the worker. This meeting attempted to bring matters into the open with the DSM stating that he would take steps to try and rectify the situation. There have been no reports of any undue interaction between these parties since that date. The HR manager met with the worker on the 30th of July 2019. The worker identified that he had two medical episodes in 2018 one early in the year and one in October. Local management were aware of both. The worker continued to do HGV driving on behalf of the employer during this time. The worker alleged that staff members expressed their concerns to the delivery services manager regarding whether or not it was appropriate for him to be driving following these medical episodes. The worker was up the belief that the concerns raised where motivated by particular members of staff who had taken issue with him in his union role the previous year.

At the meeting the worker explained that there had been other individuals in the office who had similar episodes to his initial one, but they had not been removed from their driving duties. The HR manager asked the worker what he would like him to do subsequent to the meeting. According to the HR manager, the worker replied that he was aware there was a decision reached regarding his return to driving and asked the HR manager to ‘find answers’ for him.

The last CMO report on the 5th of September 2019 explained that there were a number of factors affecting fitness to drive. It mentioned a funny turn “dizziness” episode which the CMO stated occurred whilst he was in the HGV. The worker did not fully black out but an ambulance took him to A&E. The worker had a full assessment by a specialist and the CMO received a comprehensive report indicating that there were no ongoing concerns. The CMO reported that the worker was separately on medication that is not usually compatible with driving. We understand that the worker has never ceased this medication.

The third issue was an alcohol issue. The worker was referred to an addiction centre and underwent a short program. However, based on the information available to the CMO advised that the worker would be currently fit to undertake ordinary driving but not to undertake HGV. As regards the ongoing fitness for ordinary driving management where requested that they need to satisfy themselves that his previous use of alcohol is under control.

Company's position.

The worker returned to work on the 14th of October 2019 and is performing his non HGV driving post. it is expected that the restriction from HGV driving will be lifted in February 2020.

RSA medical guide to driving guidelines state:

“persistent alcohol misuse confirmed by medical enquiry with or without evidence of otherwise unexplained abnormal blood biomarkers require sensation from driving until the minimum one-year period of abstinence or controlled drinking has been attained without normalisation of biomarkers, if relevant. driver to seek advice from medical or other sources during the period of the road.”

These standards are minimum standards and do not preclude the employer from setting higher standards in terms of demands of driving tasks in counted in the course of employment.

The worker had a medical episode in August,2018 during which he became dizzy whilst driving a HGV. He did the responsible thing by pulling in and calling an ambulance. I note that following a full medical enquiry, the worker was deemed healthy. His Doctor wrote to the CMO on the 28th February,2019 setting out the details of the episode in August, the contributing factor for that episode and all of the tests the worker had undergone and passed. The CMO was also informed that the worker was deemed medically fit to have his licence renewed on the 02.01.2019. The contributing factor in the August episode was over consumption of alcohol whilst on holidays but that he had significantly reduced his alcohol consumption since then. The worker was not removed from driving duties until February,2019 despite the fact that he had been driving a HGV since August, 2018. I note that the CMO actually never met with or examined the Worker himself. I further note that the worker was never disciplined in relation to his driving and the respondent never had cause to prevent him from driving due to the consumption of alcohol.

I could find no medical evidence whatsoever that could have justified the respondent’s decision to remove the worker from his HGV driving duties.

On that basis I am making the following recommendation:

-              The Worker is to be reinstated as a HGV driver with immediate effect.

-              The Respondent pay to the Worker the difference in his wages from what he was paid to what he should have been paid if his HGV driving duties were never stopped.

-              The Respondent reimburse the Worker the € 320.00 €40 x 8) paid for counselling.

-              The Respondent pay to the worker compensation of €2,000.00 for the upset and distressed caused by taking him of his driving duties.

basis I am making the following recommendation:

-          The Worker is to be reinstated as a HGV driver with immediate effect.

-          The Respondent pay to the Worker the difference in his wages from what he was paid to what he should have been paid if his HGV driving duties were never stopped.

-          The Respondent reimburse the Worker the € 320.00 €40 x 8) paid for counselling.

-          The Respondent pay to the worker compensation of €2,000.00 for the upset and distressed caused by taking him off his driving duties.