Complainant

Respondent

Anonymised Parties

A Worker

A Transport Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00030902-001

12/09/2019

The Respondent operates in the transport business.  The Complainant has worked for the business for over 5 years as a coach driver. A complaint was made to the Managing Director (via work colleagues) that the Complainant was falling asleep while driving his coach while on a tour which was a serious health and safety concern.

When alerted to this, the Respondent organised for the Complaint to attend a medical assessment.

This complaint concerns the payment of wages during the period pending the medical assessment/appointment.

The Complainant was a driver with the Respondent company for over 5 years. On the 14th March 2019, the Complainant received a call from the Managing Director requesting a meeting as he had received complaints from two colleagues that the Complainant had fallen asleep while driving the coach. The Complainant denies this occurred.

The Complainant contends that during a meeting to discuss the matter on the 15th March 2019, the Managing Director gave him two choices. 1. Go for a medical assessment to the company doctor or

2. Leave the business and receive 8 weeks’ pay in lieu

The Complainant took the first option of a medical assessment as he did not believe he had done anything wrong. Pending the outcome of the medical, the Complainant was not available to work his usual duties as a coach driver, so he volunteered to clean the buses at night until the date of the medical appointment which was scheduled for early April 2019.

Towards the end of March, the Managing Director put the Complainant back on the roster to work. He worked 1 day and was removed from the roster again. His roster consisted of 3 long days at €210.00 per day and 1 short day at €180.00. As he was for the most part not on the roster for March and April while he awaited the medical appointment, his claim is for lost wages amounting to a total of €4,825.00 during this period.

The Complainant is of the view that he should be paid from 21st March 2019 to 1st May 2019 in full due to the fact he was removed from the roster pending a medical review and believes this was through no fault of his own.

Concerns were raised by two staff members regarding the Complainant’s dangerous driving. It was felt his driving was very poor and suffered from a loss of concentration while at the wheel. In this context the Respondent felt they had to act immediately as this was potentially a serious health and safety issue both for the Complainant and others, particularly due to the nature of his work as a coach driver.

The Managing Director met with the Complainant on the 15th March 2019 to bring his attention to these concerns and it was agreed between them that he would take up coach cleaning duties in the short term pending the results of a medical assessment with an Occupational Medical Assessor to ensure he was fit to drive from a health and safety perspective which would take place in early April.

It was agreed between the two parties that the Complainant would take up cleaning duties in the yard over 4 days per week and he would earn €240.00 per day for this work. After working one day on this job, 19th March 2019, the Complainant decided he did not want to continue with this work. From the 21st March 2019, the Complainant did not report for work nor did the Respondent receive any contact to explain his absence or a medical certification for this absence.

On the 26th March 2019, a registered letter was sent to the Complainant confirming that the medical appointment had been arranged. The first medical assessment was scheduled for 8th April 2019. Confirmation of the medical assessment date was sent via the company solicitor’s offices by registered post to his home address. Notification of the appointment was also sent to the Claimant’s nominated legal representative. The Claimant did not attend the designated medical appointment, nor did he notify his employer that he was not going to attend the appointment or offer any explanation for his non-attendance. A fee was changed for non-attendance at the doctor as a result.

Following this, the Respondent attempted to reach the Complainant on several occasions without success to seek an explanation for his non-attendance at the medical. The Respondent eventually got hold of the Complainant and arranged another medical appointment. It was agreed between them that if the Complainant passed the medical assessment, he would return to work in his position of coach driver. On the 30th April 2019, the Complainant called the Respondent to confirm that he had passed his medical assessment and would therefore return to his position of coach driver.

The Managing Director told the Claimant he would await the official confirmation of the assessment report from the doctor but in the meantime would discuss including him on the roster with the Transport Manager. He said he would roster him based on what they agreed, 2 days on and 2 days off. When the report arrived, the Company doctor certified the Complainant as fit to work but noted that this revised shift pattern was “a good idea” for the Complainant as it was “likely to reduce the risk of fatigue or day-time sleepiness while driving.”

The Complainant said he was not sure of this and wanted time to think about it and would call the Managing Director back. No further direct contact was made between the parties after this point. During this time, the Respondent became aware that the Complainant was contracting out his services to competitor companies from mid-April.  In April, the Claimant was paid €1,042.00 which included payment for a public holiday on the 22nd April (Easter Monday) and a discretionary sick leave payment €630.00.

The Complainant was absent from work without explanation from 21st March 2019 despite the fact suitable alternative work was agreed between the parties at a meeting on the 15th March 2019 pending the outcome of the medical assessment to ascertain the suitability of the Complainant to operate his vehicle safely. The Complainant did not make himself available for work after this time on the revised arrangements and appears to have been difficult to contact.

The Complainant failed to notify his employer of his inability to attend the medical arranged on the 8th April 2019 and no reasonable explanation was been put forward by the Complainant as to why two registered letters (one to his home address and one to his solicitor’s offices) did not come to his attention and further why he failed to notify his employer that he would not attend the assessment when he was aware that this was an important and necessary appointment to ensure he could return to his role.

The Complainant did not report to work during the period in question and therefore did not make himself available to carry out his duties as mutually agreed.

Therefore, I am satisfied the Complainant did not make himself available to work under the revised terms as agreed between the parties during the period in question to facilitate the pending medical assessment which was a prudent action by the Respondent to ensure the Complaint was medically fit to drive following complaints by two colleagues for his own health and safety and the health and safety of others.

In this context and having carefully considered the final payments made to the Claimant, I believe all outstanding payments due were discharged accordingly in full. 

The claim put forward under the terms of the Payment of Wages Act, 1991 fails.

Payment of Wages – Medical Review