LCR22917

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00044710 (CA-00055535-001)

BACKGROUND:

The Worker appealed the Adjudication Officer’s Recommendation to the Labour Court on 16 October 2024 in accordance with Section 13(9) of the Industrial Relations Act, 1969.

A Labour Court hearing took place in a virtual setting on 1 February 2024.

DECISION:

Background to the Appeal

This matter came before the Court by way of an appeal by the Worker from a Recommendation of an Adjudication Officer (ADJ-00044710, dated 6 September 2023) under section 13 of the Industrial Relations Act 1969. Notice of Appeal was received in the Court on 16 October 2023. The Court heard the appeal in a virtual courtroom on 1 February 2024.

Factual Background

The Worker retired from Dublin Bus (‘the Company’) on 5 January 2024 where he had been employed since 1980. He had worked as a bus driver from 1983 onwards.

An incident occurred on 1 August 2021 while the Worker was driving a bus on his designated route. A verbal exchange took place between the Worker and an Inspector. The Worker reported the incident in writing to the Human Resources Manager later that day and requested an investigation. He also filed an incident report on 5 August 2021. The Worker thereafter went on a nine-week period of sick leave during which he was in receipt of the Company’s ordinary illness benefit scheme.

While out on sick leave, the Worker made an application to the Company under its occupational injury scheme. On 10 August 2021, the Worker’s Depot Administrator informed the Worker in writing that his application had been declined “as an instruction by a supervisor would not be grounds for occupational injury”. The Worker appealed this decision. He was informed in writing by letter dated 18 October 2021 from the HR Services Manager that his appeal was unsuccessful as “an instruction as issued by a Stance Inspector would not constitute grounds for Occupational Injury”. It is common case that the difference between what the Worker was actually paid during his nine-week absence and what he would have received had he been permitted to avail himself of the occupational injury scheme was approximately €350.00.

On 7 October 2021, the Worker lodged a formal grievance regarding the incident of 1 August 2021. An investigation was conducted by Mr Ronan O’Toole, Area Operations Manager, Clontarf. Mr O’Toole. Mr O’Toole issued a written outcome on 29 November 2021 in which he concluded that the “complaint is based on one individual’s words against the other (sic), with this in mind, a conclusive outcome is impossible”. The Worker unsuccessfully appealed the outcome. This was communicated in writing to him on 17 February 2022.

Some thirteen months later – on 14 March 2023 – the Worker referred his initiating complaint under the 1969 Act to the Workplace Relations Commission. On his referral form, he outlined his complaint as follows:

“My complaint stems from the unfair and uncalled (sic) treatment I suffered at the hands of an inspector on duty for Dublin Bus. Upon completing a period of certified illness I returned to work and applied for loss of earnings of approx. €1,300 which is the net loss I suffered. The company denied to pay the €1300 I believe I am entitled to.”

The Adjudication Officer who heard the matter at first instance stated the following in her recommendation:

“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.”

The Adjudication Officer recommended that the Company take no further action regarding the dispute.

Submissions

The Worker informed the Court that the quantum he is seeking totals €1,448.48, being the difference between what he was paid while on sick leave in 2021 and what he would have received had he been in receipt of full pay.

It is submitted on behalf of the Company that the Worker delayed referring his complaint under the 1969 Act for an inordinately long period of time: the outcome of his grievance appeal issued on 17 February 2022; the complaint was received by the Workplace Relations Commission on 14 March 2023. The Company further submits that the complaint submitted under the 1969 Act was never articulated by the Worker at local level and differs substantially from the request he made at local level in respect of payment of occupational illness benefit. Finally, it is the Company’s submission that the claim as articulated before the Workplace Relations Commission and before this Court on appeal, if conceded, would have collective implications and is, therefore, inadmissible under section 13 of the 1969 Act.

Discussion and Decision

The Court finds that the Company applied its own procedures correctly and fully in all its dealings with the Worker arising from the incident of 1 August 2021. Moreover, the Company treated the Worker fairly and reasonably at all material times. The Worker availed himself of nine weeks’ paid sick leave following incident of 1 August 2021. He received the full benefits of the Company’s ordinary illness benefit scheme during that period. In the within proceedings, he is seeking compensation equivalent to the difference between what he was paid under the sick pay scheme and what he would have been paid had he attended for work during those nine weeks.

The Court sees no merit whatsoever in this claim in circumstances where the Worker’s issues were fully considered via two separate internal procedures and determined in both cases to be without foundation. The Court further finds that the Recommendation of the Adjudication Officer should stand.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
DC	______________________
06 February 2024	Deputy Chairman