Worker

Employer

Anonymised Parties

A Bus Driver

A Transport Company

Representatives

Thomas O'Connor National Bus and Rail Union

Michael McGrath

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 - 00001371

05/05/2023

This referral is made on behalf of a Bus Driver (referred to herein as “the Driver”) who has worked for the Company since 2003. His grievance related to a medical examination which he attended organised by the office of the Chief Medical Officer which generated what was thought at the time to have been a cardiac incident. The outcome was that the Driver was deemed unfit for duty. The Driver sourced private medical diagnostics procedures which clarified that he was in good health and was fit for work. The Driver was eventually cleared to return to work. He complained that the initial medical assessment had generated a false alarm which was not of his making, but which caused him and his family distress, and needless worry, and which caused inconvenience and loss to him personally.  

The Company did not concede the claim.

The matter came before me for investigation and a hearing took place at the offices of the Workplace Relations Commission.

On the 15th of November 2022 the Driver attended a medical appointment at the medical department run by the Chief Medical Officer (CMO). The Driver recollected that when an electrocardiogram (ECG) was being conducted, there were difficulties attaching the electrodes or sensors to his body and eventually they had to be taped into position. The Driver left the appointment and went home and only later that day did he receive a telephone call advising him that he had undergone a “cardiac event”. As a result, he was deemed unfit for work immediately with the situation to be reviewed a month later. The Driver and his family were shocked, upset and extremely worried about the Driver’s state of health and rather than wait for the CMO to organise the follow-up ECG, the Driver went to his own G.P who arranged a private ECG at a private hospital shortly after the appointment with the CMO, which the Driver paid for himself. The result, which was all clear, was communicated to the office of the CMO and the Driver was deemed fit to work on the 10th of December 2022.

The Union’s submission asserted as follows:

“In all probability, and given that medicine is an exact science, the test in the medical appointment was faulty due to the inability to attach the diodes properly. The Complainant should never have been stood down from work.”

It was acknowledged that the Company reimbursed the Driver in respect of the expenses incurred in procuring the private ECG albeit that this was alleged to be belated and a tacit acceptance of fault on the part of the Company. The Union was unable in submissions, to quantify the loss of earnings sustained by the Driver and called on the Company to do so and to pay what was lost.

The Union delivered a written grievance on the Driver’s behalf by letter dated the 26th of January 2023 following unsuccessful local representations to resolve the matter informally. Despite numerous telephone conversations to the HR Manager, a meeting to discuss the issues never took place.

The following was sought on behalf of the Driver:

That the Company would fully calculate the Workers loss of earnings and reimburse that amount.

An apology for the trauma and upset caused by the probable misdiagnosis of a cardiac event by the Company’s medical department.

Compensation for the trauma and upset caused by the probable misdiagnosis of a cardiac event by the Company’s medical department.

Compensation for the failure of the Company to answer the complainant’s grievance contrary to the agreed procedures and S.I. 146/2000

In the first instance it Was submitted that the issue was one which affects ‘a body of workers’. I.e., the issue is not limited to the individual claimants but affects all employees in the Company’s employment. That issue is the ability of the CMO to deem employees ‘unfit for duties’ which then affects the pay of those employees.

The Company operates a public transport network. On 15 November 2022 the Driver attended a scheduled medical appointment with the Chief Medical Officer. Following this, the Driver was found unfit for duty with immediate effect and could not return to work without the clearance of the Chief Medical Officer. A further medical appointment was scheduled for 16 January 2023. The Driver was advised by the doctor working for the CMO that he needed a cardiac stress test in order to assess his fitness to resume duty. The Driver made his own arrangements to attend a private clinic and had this test completed, which was clear. A copy of the tests results was sent to the CMO doctor for review. Upon review of the test result by the CMO, The Driver was found fit to resume duty from 10th December 2022.

It was contended that it is fundamental to the Company’s ability to ensure appropriate levels of health and safety to employees and passengers, management of driver welfare and absence management, that a driver can only carry out driving duties from the point at which the CMO deems a driver fit for his/her duties. This is agreed by all unions and is applied collectively across the Company.

On 26 January 2023, the Driver’s trade union sought; ‘full reimbursement for the cost of the test and all lost wages’, The expense incurred in getting a private cardiac stress test in a private clinic was reimbursed to the Driver. The Company would ordinarily avail of such services in an alternative hospital with which it has an ongoing relationship for these and similar tests.

In respect of loss of earnings, the Driver as a result of a high level of previous absence was on the ‘C Scale’ of the Company’s welfare scheme. This entitled him to 60% of pay for a period of 14 weeks which expired on 9 December 2022. As the Chief Medical Officer/Medical Department is under the remit of another entity, the Company sent a letter making representations from the Driver’s union to that other entity requesting that the latter investigate and revert. The HR manager of that entity reverted saying that she was advised, having engaged with the medical department;

‘that given the underlying medical health issues, that the doctor was obligated to investigate and therefore a period of absence to facilitate the investigation was reasonable. It is therefore not possible to pay loss of earnings in this instance.’

The claimant submitted his claim to the WRC on 5 May 2023.

The Company made the point that any recommendation indicating that an employee was potentially fit to work, and therefore should have been paid, contrary to the CMO certifying to the contrary, would have massive implications for how the Company manages absence, illnesses, occupational injuries and how it applies its union agreed welfare scheme, occupational injury scheme and other benefit schemes which are contingent on confirmation of fitness to work by the CMO. Fitness to work as signed off by the CMO is a central element of absence management, is applied uniformly and collectively, and is recognised and agreed with all unions.

It was submitted that that it is fundamental to the Company’s provision of health and safety, management of driver welfare and absence management that a driver can only carry out driving duties when the CMO deems that driver fit to do so. This is agreed by the Unions and is applied collectively across the Company.

The Company stated that it has no control or influence over the medical assessments which the CMO conducts - nor should it. The Company also has no influence or insight into the medical evaluation process which is undertaken by the CMO. In fact, the Company has received previous representations from unions on behalf of employees who felt that they could have been signed off earlier by the CMO, including where there was an effect on attendance bonus. The Company has always applied the scheme uniformly. Furthermore, any recommendation which indicates that the claimant should have been paid for a period which the CMO deemed him unfit for work would be one which affects ‘a body of workers’ and is therefore outside the Adjudicator’s jurisdiction under this piece of legislation, i.e., the issue is not limited to an individual issue.

The matter of the CMO deeming an employee ‘fit for duties’ and therefore affecting payments to the employee, has been the subject of a claim by a driver against the Company to the WRC previously. The Adjudicator stated the following in her decision;

...I cannot make an individual recommendation on a matter that clearly has much wider implications for the wider body of bus drivers.” [Reference Quoted]

In the present case, the Company was informed that the CMO deemed the claimant to be unfit to work. Therefore, the claimant was deemed absent from that point through illness and was entitled to receive the appropriate benefit under the company welfare scheme. In this instance payment as 40% under ‘C’ scale of the scheme. When the CMO was satisfied that he was fit to resume work, management was notified, and the Driver resumed on 10 December 2022.

The union on the Driver’s behalf, sought repayment for the cost of the test, which was provided. As the Driver was deemed unfit for work he was paid at the appropriate rate under the welfare scheme. This rate was determined by his level of absence to that point.

The claim for ‘’recompense for the trauma’ is one which in the first instance had not been raised locally. Secondly, it was, it was contended, totally inappropriate for the union, the company or the Adjudicator to discuss or make a recommendation upon, as to do so would be to critique or evaluate a medical professional in carrying out their role.

In summary it was submitted that the Company acted reasonably at all times in respect its treatment of the Driver.

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

I was informed that the Driver has an established medical condition. Although this condition is being managed medically and as such it does not affect the Worker’s fitness, it nonetheless needs to be monitored and this is the reason why the Driver was attending the CMO on the occasion which gives rise to the present dispute. I also noted that the Worker had incurred sickness absences prior to this incident which had significantly depleted his sick-pay entitlements. Another important factor which emerged at the hearing was the fact that the pre-existing condition requires the Driver to attend medical check-ups to ensure that that pre-existing medical condition is being managed such that it does not affect his fitness to work. It appears that the Driver had adopted a personal practice of allocating sick days to such visits to maintain his wages or part thereof and he said that he had carefully budgeted his sick leave entitlements to allow him to do this without losing pay or to mitigate against the loss of pay. My further understanding from the explanation provided to me by the Driver and his representatives is that that the extended absence which arose as a result of the ECG carried out by the CMO on the 15th of November 2022 and which continued until the 10th of December 2022, had the affect of requiring the Driver to deploy all of his remaining sick leave entitlements. The result, if my understanding of the explanation is correct, is that the Driver then adopted the practice subsequent to the events the subject matter of this referral, of allocating days from his holiday entitlements when he was required to attend further medical check-ups as required in relation to the management of the pre-existing condition. Thus the loss as I understand it, related to the exhaustion of sick pay and the Driver’s response to that by using up his holiday entitlements in relation to medical attendances not related to the present dispute.

The principal grievance raised by the Driver and his Union is the fact that the cardiac event which was recorded on the initial visit to the CMO was, in all likelihood, a false ECG reading. It follows that the principal complaint relates to the standard of the medical testing procedures adopted by the CMO on that occasion. The Driver’s submission as to how the test result is attributable to difficulties attaching the sensors is pure speculation and is unsubstantiated by any medical opinion. It should be noted that the CMO was not a party to this dispute and made no submission or appearance at the hearing. Neither of the parties before me was in a position to verify this theory or otherwise and it follows that all that can be assessed is how the Company dealt with the situation when it presented itself as it is clear that the Company cannot be held responsible for clinical procedures which are conducted by independent medical professionals, and which are not subject to review in the present process. There can be no doubt that the Company must at all times act in accordance with medical assessments carried out by the CMO. Any challenge to the Company’s right/obligation in this regard would constitute a collective issue beyond my jurisdiction. 

The Driver and his wife got a shock when the initial cardiac event was communicated to them by the office of the CMO. This is entirely understandable as is the anger and frustration experienced by the Driver when he was deemed unfit because of the ECG reading done that day when the same procedure done on another day in another facility turned out to be clear. However, these events were not caused directly by the Company which is bound to comply with medical assessments made by the CMO. The Driver took charge of the matter himself by organising an independent private assessment which he paid for, and this was a prudent step which avoided unnecessary delay. For its part the Company reimbursed the Driver for this expense, albeit not immediately but without, it seems to me, an unreasonable delay.

At the hearing it became clear that the Driver was not significantly out of pocket as such but rather the loss he did sustain was related to having to use his up his sick pay entitlements to ensure that he was paid (albeit at a reduced rate) during the absence which arose from the initial results of the ECG carried out by the CMO. In the case of this particular Driver, his sick leave entitlements were already close to being exhausted and this was due to causes unrelated to the subject matter of the dispute.

For its part, the Company allowed the Driver an additional five paid rest days beyond his contractual entitlements, and this strikes me as an appropriate gesture indicating that the Company was sympathetic to the Driver’s plight and was doing what it could to assist him. This payment was wrongly characterised in the Union’s submissions as a tacit acceptance of fault.

The Union said that no response was received to the formal grievance letter submitted on the Driver’s behalf which was dated the 26th of January 2023. On looking at the correspondence it does not appear that the content or import of the email from the HR Department of the other entity, which was dated the 3rd of March 2023, was communicated to the Driver or his Union. The Union made the point that the internal procedures required a grievance meeting or hearing which never took pace. This appears to be correct as does the contention that the Grievance letter submitted by the Union did not receive a formal written response. In such circumstances it was certainly not unreasonable or unnecessary for the Union to make the present referral which was done on the 5th of May 2023. In this regard I would offer the view that a written response and a formal grievance meeting, had both had been provided, may have enabled the parties to engage sooner than they did, and for the issues to be clarified. It is even possible that the present referral may not have been necessary or at very least, would have been made sooner than it was.

The Union submitted that although there had been delays, the real issue was the fact that this situation had occurred at all. In the light of my analysis of the Company’s responses to the situation I cannot agree that the Company acted unfairly or unreasonably with the situation which was presented by a medical assessment over which the Company had no control. The Company reimbursed the Driver for the expense he had incurred by procuring a private ECG and moreover the Company allowed the Driver five additional paid rest days beyond his contractual entitlements. Although the grievance letter does not appear to have received a formal response nor was a formal grievance meeting convened it would be unfair to say that the Company ignored the grievance as it was passed up the line for investigation. I would observe that it would have been better for all concerned if the grievance had been closed off more formally and promptly after the email from HR was received in March 2023.  

Having considered the written submissions and having discussed the issues with the parties, I cannot see where the Company is at fault for what happened except in relation to the non-response to the grievance letter and the failure to convene an internal meeting in relation to the grievance. The Company was not only entitled to but was obliged to put the Driver off duty as the CMO had deemed him unfit. The Company was obliged in this as in every case, to comply with the medical advice regarding fitness of its employees as directed by the CMO. I reject the contention made by the Union that the Driver should not have been stood down. That was a medical issue beyond the jurisdiction of either party and was and will remain a question solely within the remit of the CMO. It is also noteworthy that the CMO did consider the medical data procured by the Driver and the decision to deem him unfit was reversed promptly on receipt thereof.

I am satisfied that the Driver was not deprived of any of his contractual entitlements. Moreover, though under no obligation to do so, I note that the Company elected to exercise a discretion to allocate five additional paid rest days to the Driver in the circumstances as they pertained. When placed in the context of the practice, adopted by the Driver (as disclosed at the hearing), of allocating holidays to medical visits when sick leave has been exhausted, I would have some concern that this is not the way in which holidays should be taken, as the purpose of a paid holidays is to provide a worker with rest. I do not think that the Company was aware of this practice by the Driver, and it seems to me unlikely that the Company would approve of the practice although preventing it formally would be problematic to say the least. Noting however that the Company may have a discretion which it has already exercised to grant additional paid rest days, I perceive the best way to resolve this individual and exceptional dispute would be for the Company to exercise this discretion further and to offer a further five paid rest days to the Driver, if for no other reason than to encourage him to use his holidays for rest.

I recommend that the Company and the Driver consider this as a possible pragmatic resolution of the dispute. In making this recommendation however I would clarify that it would need to be characterised as an ex gratia gesture of goodwill rather than compensation for wrongdoing on the part of the Company. For the avoidance of doubt this recommendation does not constitute nor should it be construed as a criticism of or interference of any kind with the medical decisions made by the CMO who was not a party. It represents a recommendation for the resolution of this particular and exceptional case and thus it should not be cited as a legal or industrial relations precedent of any sort in other cases.

Medical examination – Chief Medical Officer – Company’s obligation to comply with decision of CMO - Challenge to decision to deem worker unfit – sick pay entitlements – Whether dispute concerned ‘a body of workers’ – alleged failure to respond to grievance – alleged failure to convene internal grievance meeting - S.I. 146/2000