INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
MAYO COUNTY COUNCIL
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Ms Jenkinson
Employer Member: Mr Doherty
Worker Member: Mr O'Neill
1. Appeal of Rights commissioners Recommendation R-031450-IR-04/GF.
2. The worker is employed by Mayo County Council for over 28 years . Following a conviction and 3 month suspension for a drink driving offence in October, 2004 the County Council transferred the worker to a position with the same terms and conditions but no driving required. The worker claims that the Council have used this episode to accommodate an agenda whereby they have sought since 2003 to reduce by one the compliment of staff in Ballina housing section where he was employed. Following two week annual leave in October/November, 2004 the claimant did not report for work and a medical certificate was forwarded to the Council. The Council wrote to the claimant on 24th November, 2004 requesting him to attend an independent medical on the 1st December, 2004. The claimant failed to attend this appointment and a further appointment was arranged for the 9th December, 2004. The claimant attended on this occasion. Following the independent medical, a report was issued which found that in the Doctor's opinion he did not consider the claimant to have any symptoms which would account for his inability to work. The claimant was notified of this by letter on the 11th January, 2005 and informed that any further sick leave or payments would not be approved to him based on these findings. The claimant returned to work on the 3rd February, 2005. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 29th April, 2005, the Rights Commissioner issued his recommendation as follows:
- “I have given the case careful consideration and I have come to the conclusion that the claim for sick pay should fail due to the reasons advanced by the council. I recommend the claim for a return to duties be sympathetically considered by the council as from the 1st December, 2005”.
On the 2nd June, 2005 the Union appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. The County Council have decided to await the Labour Court's decision before considering the Rights Commissioner's Recommendation. A Labour Court hearing took place on the 14th March, 2006.
3.1 The claimant feels that he is being disciplined arising from his forced transfer from his employment base at Ballina Housing Section arising from being charged with driving while under the influence of alcohol. The period of disqualification was for three months with effect from 3rd November, 2004.
2. The claimant was certified unfit for work by his own G.P. due to stress, following his disqualification, embarrassment, shame etc.
3. Up to this particular incident the claimant had 28 years unblemished record and this should be taken into account when considering the appeal of Rights Commissioners Recommendation.
4. The claimant fully accepts that drinking while under the influence of alcohol is inexcusable and that the three months disqualification from driving is completely justified. He regrets that his actions could damage the Council's reputation as a Road Safety Authority.
5. The claimant has worked for the past 13 months plus, outside of his work base in Ballina.
4.1 The Council believes that the worker has been treated with complete fairness and leniency throughout this process, considering his behaviour on a number of levels, i.e driving under the influence alcohol, bringing the County Councils reputation as a Road Safety Authority into disrepute, failure to inform his employer that he had been disqualified and getting a 3 month driving suspension.
2. The worker's actions following the drink driving offence, constitutes a serious breach of the trust which should exist between an Employer and Employee. Such behaviour could have resulted in Grievance and Disciplinary procedures being invoked, had this happened the Council could have been justified in terminating the workers employment as a breach of trust and 'gross misconduct'.
3. The Council took into account the workers previous work record of 28 years and decided to take the lenient course of action. The worker continues to carry out General Operatives duties on the same terms and conditions of employment.
The Union appealed the Rights Commissioner’s recommendation, which found that the worker’s claim for five weeks sick pay failed and recommended that as from 1st December 2005, the County Council should sympathetically consider his claim to return to work.
Having considered the oral and written submissions of both parties, the Court finds that the County Council’s actions were appropriate and were within the terms of their sick pay scheme.
Furthermore, the Court notes that the County Council did not take any form of disciplinary action against the worker and accommodated him by redeploying him nearer his home with preserved terms and conditions of employment.
Accordingly, the Court sees no reason to vary the terms of the Rights Commissioner’s recommendation and rejects the worker’s appeal. Therefore, the Court decides that the parties should meet to discuss the current situation within the terms of the Rights Commissioner’s recommendation.
The Court so decides.
Signed on behalf of the Labour Court
Enquiries concerning this Decision should be addressed to Jackie Byrne, Court Secretary.