Employee

Employer

Anonymised Parties

A Bus Driver

A Transport Company

Representatives

Joanna Ozdarska, SIPTU

Naledi Bisiwe, IBEC

Act

Dispute Reference No.

Date of Receipt

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

IR - SC - 00001170

14/03/2023

The driver commenced working for this employer in February 1980 and he has been a bus driver since 1983.  An incident occurred on August 1st 2021, following which the driver went absent due to what he claims was bullying by an inspector.  He was out sick for nine weeks due to stress.  This dispute is about the fact that, while he was absent, the driver received sick pay and not occupational injury pay, which is more beneficial.  As a result of the company’s decision not to pay him occupational injury pay, the driver claims that he is at a loss of €1,448.48.  He also claims that he should have received a safe driving token to the value of €150 which he lost due to his absence which was caused by the incident on August 1st.

This grievance is complicated by the fact that the company’s payroll department signed a social welfare claim form indicating that the driver was entitled to social welfare injury benefit during his absence in 2021.

The driver returned to work on October 4th 2021 and on October 7th, he submitted a grievance concerning the inspector’s conduct on August 1st.  His grievance was not upheld and, following an appeal, on February 17th 2022, his appeal was not upheld.  On March 14th 2023, he submitted this grievance to the WRC for a recommendation under section 13 of the Industrial Relations Act 1969.

On Sunday, August 1st 2021, when he arrived at a bus stop on his normal route, an inspector boarded the bus and confronted the driver in what he considered to be a disrespectful manner.  At the hearing, the driver said that Covid-19 regulations were in place at the time and masks were required on buses.  The inspector wasn’t wearing a mask and the driver said that he pointed to his own mask, indicating that the inspector should put one on.  The inspector disembarked and put a mask on.  The driver said that the inspector then got back on to the bus and shouted to the passengers that the bus would not be leaving the stop because it was three minutes ahead of schedule.  He turned to the driver and, in earshot of the passengers, told him that that his timing point was 11.40 at a certain stop.  The driver asked the inspector if he meant a different stop, which sounded like the stop he had mentioned, and the inspector said, “you know what I mean.”  The driver said that he told the inspector that the bus was on time and he told him never to speak to him in that manner again.  He asked the inspector his name and the inspector in turn asked the driver for his name.  Before the driver could reply, he said that the inspector seemed to look at the ticket machine and he disembarked.  A passenger then commented to the driver that she was disgusted with the inspector’s conduct.

The driver said that he was stressed out with the inspector’s disrespectful conduct and with how he violated the company’s protocol that an inspector should not challenge a driver in public.  The driver said that he finished the route and when he arrived back at the bus garage for his break, he told an inspector what had happened.  Shortly after 2.00pm, he sent an email reporting the incident to the garage manager and to a member of the HR team.  He then commenced a period of sick leave.  He returned to work nine weeks later.

The driver applied for occupational injury pay, because he claims that his absence was caused by stress due to a workplace incident in which he was a victim of bullying.  On August 10th, his application was refused and he was paid sick pay.  He is seeking a recommendation that the company pays him €1,448.48, which is the difference between the amount he was paid in sick pay and what he would have been paid if he had been entitled to occupational injury pay.

Opening her submission on behalf of the employer, Ms Bisiwe said that the driver has delayed too long, between August 2021 and March 2023, to submit this grievance to the WRC.  I note that the final response from the company was its refusal to allow the driver’s appeal and that this was communicated to him on February 17th 2022, resulting in a delay of more than a year to submit this grievance to the WRC.  However, having listened carefully to the driver’s case, I have decided that the delay should not be an impediment to my investigation of his claim.

I note also Ms Bisiwe’s submission regarding the collective nature of this grievance, and her point that any outcome would have an impact on the entire body of drivers in the company.

When he was absent for nine weeks, the employee was paid sick pay at 100% of his wages for 14 days and the remaining 49 days at 70%.  The fact that the driver claimed a payment for occupational injury from the Department of Social Welfare and that his claim form was signed by an administrator in the company is not relevant to his claim for occupational injury pay from his employer.

The company’s position is that there is no automatic entitlement to occupational injury pay.  The scheme is provided as an additional benefit to employees where, in the opinion of the company, such a payment is justified by the circumstances of the incident or the injury.  It is the company’s position that the interaction between the driver and the inspector on August 1st 2021 was in line with the company’s protocols and that an inspector is entitled to stop buses to conduct inspections and to give instructions to drivers.  The fact that the driver felt aggrieved by the inspector raising his voice must be considered in the circumstances in which he was wearing a face mask and had to project his voice to be heard by the passengers.

When the driver was out sick, he had the benefit of the company’s sick pay scheme, which, Ms Bisiwe argued is generous and indicates that he was treated fairly.  She said that the company’s position is that the circumstances of this case were not appropriate for the provision of occupational injury pay and she asked me not to recommend in favour of the driver’s claim.

I have considered the submissions of the union and the employer and I have given some thought to the driver’s testimony at the hearing on July 12th 2023.  It is evident to me that he was very upset by what occurred on August 1st 2021, when an inspector boarded his bus, and he continues to be upset by how he was treated by the company afterwards.

I have read the reports of the grievance hearing and the appeal and I find that what occurred on August 1st does not come within the definition of bullying, which is considered to be repeated inappropriate behaviour intended to undermine a person’s dignity.  Even if the inspector raised his voice when he was speaking to the driver, and, even if he was wrong when he claimed that the bus was three minutes early at the stop, this does not indicate that he intended to be disrespectful or that he wanted to embarrass or undermine the driver.  Having said that, the driver felt disrespected, and he said that he was stressed out by what occurred.  This was his personal response and he is entitled to respond in accordance with how he felt at the time.

The employer must administer the occupational injury scheme in a manner that is consistent with the purpose for which it was established.  This purpose must relate to what is generally considered to be an injury, which is an outcome from an accident or an assault.  We know that such an outcome may include a psychological outcome.  Having listened to the driver, it seems to me that his response to what occurred on August 1st 2021 could more properly be described as affronted, insulted or offended, rather than psychologically injured, as he is a sensible, level headed person with a genuine commitment to doing his job well.

It is my view that the driver was treated fairly by the company when he was paid sick pay for nine weeks between August 1st and October 4th 2021.  I find that his claim for occupational injury pay is not consistent with the purpose of that scheme and that the employer acted reasonably by not conceding his claim. 

I recommend that the employer takes no further action with regard to this dispute.

Occupational injury