Worker

Employer

Anonymised Parties

A Fire Fighter/Driver

A Local Authority

Act

Dispute Reference No.

Date of Receipt

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

SC - 00000329

31/05/2022

The issue in contention concerns a Driving Allowance that the Worker alleged that he was due from December 2021 to May 2022. It was maintained that the Council had erred in not allowing him resume driving duties, following a period of suspension, in December 2021.

The employment as a retained Fire Fighter commenced in August 1996 and continues.

The rate of pay is the Retained Fire Fighter basic allowance and driver additional allowance as per Local Government scales.

1:        Summary of Worker’s Case:

The Employer submitted a written submission and gave Oral Testimony from Mr JC, the Chief Fire Officer. (CFO) Mr. Irvine, LGMA, was the chief spokesperson.

The Worker had a drink driving incident in May 2019, (detected by the Gardai), which resulted in his losing his ordinary Public driving licence for three months. The Council took Disciplinary action, and the Worker was dismissed. On Appeal to the Chief Executive Officer, Ms B, the dismissal was withdrawn and replaced with a removal of driving duties for a minimum two-year period. At the end of the two-year period the Chief Fire Officer (CFO) was to review the conduct of the Worker and if satisfied allow the resumption of driving duties. CEO letter of 18th December 2019 refers.

In December 2021 the CFO, Mr JC, stated to the Worker that he was not prepared to allow a resumption of Driving duties until the Worker completed successfully the specialised ESDS driving course.

The Worker had not driven a Fire Tender for over two years and the CFO, conscious of his safety responsibilities to other Fire Fighters (travelling as passengers in the tender) and the public generally as road users, decided that the ESDS was a requirement for a resumption of driving.

He also noted that the Worker had not made himself available for a number of required Aerial Ladder & Breathing Apparatus training sessions during 2021. In addition, his attendances (“stand to” in Fire Service language) was the worst in the Brigade during the two-year period.

The Chief Executive letter of the 13th December 2019 gave the discretion to the Chief Fire Officer to decide when it would be appropriate to revert to Driver duties. The requirement to do the ESDS course was perfectly reasonable as was the review of attendances during the two-year period.

As regards the Payment of Wages Act,1991 there was no “Deduction”. All proper wages were paid, and the driving allowance was only applicable when driving.  

The commitment and good standing of the worker as a Fire Fighter was recognised. There was nothing personal or unfair in the CFO decision to require a Worker who had not been driving for over two years to do the ESDS course.

3:1          Review of Arguments presented.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

The legalities of the Payment of Wages Act,1991 issues are dealt with in Adj 39290.

Both the Worker/Driver and the Chief Fire Officer gave good oral testimony.

The Worker presented as a very dedicated member of the Fire Service for many years. Possibly unintentionally, he appeared to still feel very aggrieved over the loss of his driving licence in May 2019. For the Gardai to stop a Fire Tender on the way to an emergency incident and breathalyse the Tender driver was, it would be accepted by most people, a most unusual and virtually unprecedented situation.

He had been Dismissed from the Fire Service but on Appeal to the Council Chief Executive had retained his position subject to a two-year minimum suspension from all driving duties. His return to driving was to be subject to the CFO being satisfied that it was “Appropriate” for the Worker to do so.

It was very important to note that the Worker had only retained his Employment on Appeal and subject to conditions.

It was also clear to the Adjudicator, as an outside observer, that the morale & motivation of the Firefighter was seriously dented. His attendances at Calls Out and Training Courses during the two-year period was rightly problematic to the CFO. This did not add to the Worker’s case for full reinstatement.

The Worker maintained that his status and standing among his colleagues had been severely dented. In his Oral statements it was clear that he took considerable pride in being in the Fire Service and he had a natural human reaction to the suspension from Driving, a high-status position.

The CFO gave an Oral Testimony. The Fire Service is an Emergency Service which is subject to public scrutiny. A Fire Tender, a substantial road vehicle, responding to an emergency call out, travelling at speed with blue lights flashing etc cannot be open to questions as to the driver’s competence or record. The Insurance complications, from a traffic collision with an ordinary Road user vehicle, would have been, to say the least, very difficult.

It was his considered professional judgment that after a two-year gap from driving he required the Worker to do the ESDS before going back on the road in a Fire Tender.

The Chief Executive’s letter of the 18th December 2019 had given him professional discretion and he was doing exactly that.

It was recognised for Ms Flynn of SIPTU that it was not a strict legal requirement to have the ESDS standard and there were Fire Tender drivers on the Road without it. The grievance of the worker here could be understood. Ms Flynn was an experienced Official and her views carried weight.

There could be no suggestion of personal issues against the Worker.  As soon as the test became available the Worker completed it and was immediately put back driving. Delays had occurred largely due to instructor/tester availability due to Covid, but these were not unreasonable.

3:2           Adjudication conclusion

From the point of view of the Adjudicator the position of the Chief Fire Officer was impossible to argue against.

A Fire Tender operating in an Emergency Response mode on the Public Road is a serious traffic matter. Notwithstanding the non-legal requirement to have the ESDS the professional view of the CFO had to carry the day.

Furthermore, the Worker on Appeal to the Council Chief Executive had saved, in December 2019, his employment subject to conditions. The review by the CFO after two years was one such condition which the Worker had accepted even if later and understandably, he felt aggrieved about it.

This has to form the basis of any Recommendation.

Driving Allowance, Reinstatement after Suspension,