ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: IR - SC - 00000336
Parties:
| Worker | Employer |
Anonymised Parties | Bus Driver | Senior Employee Relations Manager |
Representatives | Thomas O'Connor National Bus & Rail Union | Operations Manager |
Dispute(s):
Act | Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | IR - SC - 00000336 | 01/06/2022 |
Workplace Relations Commission Adjudication Officer: John Harraghy
Date of Hearing: 01/02/2023
Procedure:
In accordance with Section 13 of the Industrial Relations Act 1969 (as amended) following the referral of the dispute(s) to me by the Director General, I inquired into the dispute(s) and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute(s).
Background:
The worker commenced employment on 17/05/2021. He was on a probationary period of 12 months. On 19/11/2021 the worker experienced an incident with his bus and evacuated the bus and extinguished a fire at the rear hub. He returned to work for a period of two weeks and then took sick leave. He was diagnosed with Traumatic Stress Disorder (PTSD) on 06/12/2021 and returned to work on 28/2/2022. He was not entitled to sick pay during this time due to the fact probationary workers are not entitled to participate in the employer’s welfare scheme. The worker is seeking payment as his sick leave was due to a work-related incident. The employer is adhering to the provisions of its illness benefit scheme. |
Summary of Workers Case:
The worker commenced as a bus driver with the employer on 17/05/2021. He was required to undergo a probationary period of 12 months. On 19/11/2021 the worker experienced a serious mechanical incident which resulted in him bringing the bus to a stop and successfully evacuating the passengers. There was a fire in the rear hub which he extinguished. As a result of his actions there was no injury to any passenger and the damage to the structure of the bus was minimised. The worker returned to work for a period and on 06/12/20212 he was diagnosed with Post-Traumatic Stress Disorder (PTSD) and was on sick leave until 28/02/2022. During this time, he attended and engaged with the employers Chief Medical Officer. The worker was not paid during this period of sick leave because he had only completed six months of his probationary period. The employer’s Welfare Scheme, which entitles employees to sick pay, does not apply to workers on probation. It was submitted on behalf of the worker that the employer should demonstrate a degree of flexibility in this case as the workers sick leave was due exclusively to the serious incident. It was also submitted on behalf of the worker that his prompt actions resulted in a positive outcome for the employer as there were no injuries sustained by any passengers and his actions also saved the bus from extensive fire damage. The trade union, on behalf of the worker, quantified his loss. The worker was on sick leave for a period of 11 weeks. His loss during this time amounted to €8,044. He received Social Welfare payments of €2,172.44 leaving a net loss of €5,871.85. The employer made a without prejudice offer of four weeks along with payment of the workers GP expenses. This was rejected by the worker. He submitted his dispute to the Workplace Relations Commission on 01/06/2022. |
Summary of Employer’s Case:
The employer provides a substantial number of passengers journeys each year to the travelling public. These are split across several areas. The worker is a full-time worker and is employed as a professional bus driver. He operates a 5 over 7 working arrangement and this involves working two Sundays out of every five. The worker commenced employment on 17/05/2021 and was on a probationary period of twelve months. The successfully completed his probation and was made permanent in May 2023. The worker was operating a bus on 11/11/2021 and experienced a mechanical failure which resulted in a “flame on the rear hub”. The worker noticed the vibration and he checked the bus. As there was no obvious fault, he continued the journey but when he smelt smoke, he immediately vacated the bus and noticed a “flame on the rear hub”. He ensured that all passengers were safely away from the vehicle, and he used the extinguisher to control the flame. The worker checked if any passenger required assistance and no injury was reported. The worker waited for a maintenance assistance team to arrive, and he returned to the depot on the next available bus. The worker was on sick leave for a period of 11 weeks and during that time he did not qualify for the employer’s welfare scheme at the time of his absence and therefore was not entitled to any illness benefit. The employer did make a settlement offer of four weeks’ pay to the worker, but this was declined. The employer is clear that their policy was adhered to, and the worker is not entitled to any payment. |
Conclusions:
In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties. There is no disagreement in relation to the background to this dispute. The only matter in dispute is the application of the employer’s welfare scheme which, among other matters, covers illness benefit. The key point is that the illness benefit is only applicable to employees who have successfully completed a twelve-month probationary period.
The worker in this case was in the unfortunate position of having completed six months of his twelve-month probation at the time of the incident and therefore did not qualify for illness benefit.
I note that the employer had made an offer of four weeks’ pay to the worker and this was rejected. The worker was absent for a period of eleven weeks. I accept that the employer applied the terms of the illness benefit scheme properly.
To bring closure to this dispute I am recommending that the employer pay the worker an ex-gratia sum of €4,000 subject to the worker signing the employer’s waiver agreement in such matters. The employer should also reimburse the worker for vouched GP expenses relating to this absence.
This recommendation is made on the basis that such a similar situation is unlikely to occur given the recent implementation of the EU Directive 2019/1152 which introduces a statutory limit of 6 months on probationary periods. |
Recommendation:
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.
I am recommending that the employer pay the worker an ex-gratia sum of €4,000 subject to the worker signing the employer’s waiver agreement in such matters. The employer should also reimburse the worker for vouched GP expenses relating to this absence.
Dated: 03rd March 2023
Workplace Relations Commission Adjudication Officer: John Harraghy
Key Words:
Probation. Illness benefit. |