INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
- AND -
NATIONAL BUS AND RAIL UNION
Chairman: Ms Jenkinson
Employer Member: Mr Keogh
Worker Member: Ms Ni Mhurchu
1. Appeal by the Company against Rights Commissioner's recommendation No. 379/98/MR.
2. The appeal concerns a worker who is employed as a ticket checker with the Company. He had been absent on sick leave from 26th March, 1998 as a result of being assaulted during the course of his duties at Pearse Station, Dublin. The worker had been certified unfit for work and paid average earnings until the 8th April, 1998, in line with arrangements at the Company, for absences following assaults. The Company's Chief Medical Officer indicated that the worker would be fit to resume his duties on the 9th April, 1998 subject to a certificate from his general practitioner (Panel Doctor). The worker's average earnings ceased from that date, however, the worker's general practitioner had decided that the worker was not fit to resume his duties until 24th April, 1998. The Union claimed that the worker's average earnings should be continued to be paid for the duration of his sick period. Management rejected the claim. The dispute was referred to a Rights Commissioner for investigation. On the 5th of October, 1998, the Rights Commissioner issued his recommendation as follows:
"I therefore, recommend that Iarnr�d�ireann should offer, and that the worker and the NBRU should accept, a once-off lump sum of £100 in full and final resolution of this dispute, this settlement to be without precedent and to be accepted as relating to the particular circumstances of this case only."
(The worker was named in the Rights Commissioner's recommendation.)
On the 28th of October, 1998, the Company appealed the recommendation to the Labour Court. The Court heard the appeal on the 5th January, 1999.
1. On foot of a recommendation from the Chief Medical Officer, it is the Company's policy, in place now for many years, to pay average earnings to staff who are absent on sick leave resulting from an assault on duty,
2. The Union is aware of the policy and of the Chief Medical Officer's role.
3. In this case, the Chief Medical Officer was asked for his recommendation, and, on the basis of a medical examination on the 6th of April, 1998, was satisfied that the worker was fit to resume work on the 9th of April, 1998, in relation to medical matters arising from the threatened assault.
4. The worker did not resume duty until the 24th of April, 1998. Before a decision was made regarding the payment of average earnings for this period, the Chief Medical Officer was consulted again. He did not recommend any further payment of average earnings to the worker.
5. It is the Company's view that the Rights Commissioner is in error when, in his findings, he states:
"I would not regard it as a satisfactory situation where an employee is passed fit, in a general way, by the Chief Medical Officer, thereby ending the payment of average earnings, but still has to attend a Panel Doctor to get a Certificate of Fitness to resume duty."
6. It is the Company's contention that the Chief Medical Officer passed the worker fit to resume duty on the 9th of April, 1998, specifically in relation to medical matters arising from the threatened assault.
7. The present policy is fair and reasonable, and provides an independent medical view to Management in relation to the payment of average earnings. The Rights Commissioner's recommendation undermines this position. In the circumstances, the Company requests the Court to uphold its appeal of the Rights Commissioner's recommendation.
1. The agreement which the Union has with the Company provides for the payment of average earnings for the duration of the sick leave, to staff assaulted while on duty.
2. The responsibility for certifying staff fit or unfit for work lies with the Panel Doctor assigned by the Company to the staff member.
3. When the Chief Medical Officer saw the worker concerned he expressed satisfaction with the worker's progress and instructed the worker to return to his Panel Doctor. He decided, however, that the worker was not yet fully fit to resume his duties and extended the worker's sick leave for a further short period.
4. While the Company informed the worker that his average earnings would not be paid after the 9th April, 1998, (on advice of the Chief Medical Officer), the worker was not given a resumption certificate by his G.P. on the 9th of April, and without that certificate the Company would not allow him to resume work.
5. This situation was totally outside the worker's control, he therefore should not have suffered financially as a result of it.
6. While reluctantly accepting the Rights Commissioner's recommendation, and given that the Company are now appealing it, the Union seeks full compensation for the worker's losses which are approximately £438.36.
The Court considered the written and oral submissions made by the parties. The Court upholds the Rights Commissioner's recommendation and rejects the appeal.
However, confusion arose in this case due to the apparent lack of clarification as to the role of the Chief Medical Officer in the implementation of the procedures regarding absences which occur due to the assault of an employee while on duty. The Court recommends that this role should be clarified and communicated to all parties concerned.
The Court so decides.
Signed on behalf of the Labour Court
15th January, 1999.______________________
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.