Carroll v Bus Átha Cliath

JurisdictionIreland
JudgeMr. Justice Clarke
Judgment Date04 August 2005
Neutral Citation[2005] IEHC 1,[2005] IEHC 278
CourtHigh Court
Docket Number[2004 No. 18786P]
Date04 August 2005
Carroll -v- Bus Atha Cliath/ Dublin Bus

BETWEEN

JOHN CARROLL
PLAINTIFF

AND

BUS ATHA CLIATH/DUBLIN BUS
DEFENDANT

[2005] IEHC 1

RECORD No. 2004/18786/P

THE HIGH COURT

Abstract:

Injunction - Interlocutory - Employment law - Express terms of contract - History of conflict between employer and employee - Conflict of evidence

The plaintiff was an employee of the defendant and sought interlocutory orders regarding (1) payment of salary (2) order permitting his return to work (3) order in regard to dismissal procedure. The plaintiff had a chequered history with the defendant, had been off work for weeks due to an accident and when he returned he requested a bus route where he could avoid long periods of being seated.

Held by Mr Justice Clarke ruling that it was inappropriate to make interlocutory orders in regard the payment of salary. He further ruled that the plaintiff had established a case in regard to the disciplinary process and granted relief unless the defendant complied with the laid down terms.

Reporter: BDD

1

JUDGMENT of Mr. Justice Clarkedelivered 27th January, 2005.

2

In this matter the plaintiff seeks interlocutory orders requiring in substance:-

3

1. the payment of salary;

4

2. an order which would require that he be permitted to return to work; and

5

3. orders connected with a dismissal process.

6

The plaintiff is employed as a member of the regular staff of the defendant as a bus driver. The terms of his employment are set out in a letter dated 17th October, 1995. There has been a history of conflict between the plaintiff and his employer for a number of years. It is not possible to resolve any issues concerning responsibility for that conflict at this interlocutory stage. Suffice it to say that the evidence and submissions tendered on behalf of both parties can lead only to the conclusion that there is a very significant lack of trust on both sides. In the course of the hearing before me allegations of a lack of good faith in relation to the way in which both sides have approached the various disciplinary and other matters which give rise to these proceedings were made.

7

The specific facts that are relevant to the issues which I have to decide commence in March 2001 when the plaintiff was involved in a road traffic accident and suffered injuries to his lower spine. He returned to work during the following year in circumstances where, he deposes, he was given a bus route which allowed him to get out of his seat regularly as opposed to sitting in the driver's seat for significant continuous periods as would be normal. In the course of his work in November of 2002 he claims that he suffered an injury as a result of a seat in the bus which he was driving. That injury is the subject of separate proceedings and it would therefore, be wholly inappropriate for me to comment on it in anyway.

8

As a result of that injury the plaintiff has been on sick leave since the 10th December, 2002 to date. In August 2003 the plaintiff was examined by his General Practitioner Dr. Neasa McDonagh who is also a C.I.E. panel doctor. Dr. McDonagh's view at that stage was to recommend that the plaintiff could return to work but that he would be facilitated by a route that would allow him frequent breaks to stretch out his back and suggested the "Air Link" route. There has followed since that time a protracted series of representations and responses at the end of which the position of the employer is that no suitable route is available for the plaintiff which would allow him to return to work on the terms suggested initially by Dr. McDonagh and confirmed by the Chief Medical Officer of the defendant Dr. Whelan.

9

A great deal of affidavit evidence was placed before the court describing the positions adopted from time to time by both parties and setting out the views of both parties as to the sort of routes which, it is contended, may have been made available from time to time as a means of facilitating the return to work of bus drivers who may have been injured or otherwise unfit in one way or another. It does not seem to me to be possible to resolve those issues at an interlocutory stage. It is possible that some of the apparent conflicts of evidence may be explained by the fact that different types of route may be appropriate to drivers whose rehabilitation is necessitated by different types of initial unfitness.

10

In the course of the hearing I was referred by counsel for the defendant to a decision of Groarke J. in the Circuit Court in Rogers v. Dublin Corporation which is noted in the employment law report at p. 59. In that case Groarke J. determined that an employer is not under any legal obligation to seek alternative work for an employee who is no longer medically fit to perform the duties for which he was originally employed. Subject to two caveats I would agreed fully with that proposition. The first caveat concerns the materiality of the difference between the work which an employee may now be able to do compared with the work for which he was employed. In the absence of a specific contractual term it seems to me that the term which would normally be implied into a contract of employment is to the effect that the employee must be reasonably fit to carry out the duties for which he was employed. An overly narrow or technical objection to his ability to carry out such duties might well, therefore, not entitle an employer to treat the employee as being unfit for the duties for which he was employed.

11

The second caveat concerns express terms in the contract of employment. As I understand the judgment of Groarke J. the contract of employment in that case did not contain any relevant express terms. What was determined, therefore, by the Court was that no term would ordinarily be implied into a contract of employment to the effect that an employer would be under an obligation to make light work available. Such a position could, of course, be displaced by the existence of an express term, or perhaps a well established custom and practice amounting to a term of the contract.

12

There is no evidence of an express term in the contract of employment concerning light work. There is conflicting evidence concerning custom and practice. However the difficulty with making an order which would require that the defendant permit the plaintiff to return to work is the clear and unresolved dispute as to whether there are, in fact, duties suitable for the plaintiff's particular physical requirements which are available within the rosters of the defendant. In this context regard also has to be had to the fact that there is in existence between the defendant and the trade unions representatives of bus drivers concerning the manner in which any available routes which would facilitate a return to work will be allocated. There have been cases in which the Courts have ordered a return to active work where an employee is not receiving pay, and also has satisfied the court that he has made out a fair issue to be tried as to the circumstances in which he is no longer employed. Shortt v. Data Packaging Limited [1994] E.L.R. 251. However it seems to me a serious difficulty arises in any case where there is a real dispute between the parties which is not capable of being resolved at the interlocutory stage as to whether there are duties for the plaintiff to carry out or what those duties might be. It would be virtually impossible for a court to direct that someone has to return to duties in those circumstances.

13

I am not, therefore, persuaded that it is appropriate for the court in this case to make any order that would require that the plaintiff to return to active duties. If, at the trial of the action, the plaintiff can persuade the court that:-

14

(a) there is a sufficiently established custom and practice within the defendant so as to give rise to a term in his contract of employment that he would be facilitated with appropriate work to enable him to be reintegrated into the workforce; and

15

(b) that in all the circumstances of the case the refusal by the defendant to facilitate him in such a way is a breach of contract,

16

then he may well be entitled to succeed. However to make such an order at this stage would require the court to impose upon an employer an obligation to permit an employee to recommence duties in circumstances where it is at least arguable that no appropriate duties exist and where, on the facts of this case, there may be further knock on difficulties in relation to the arrangements entered into between the employer and trade unions representative of many of the workforce. In those circumstances it does not appear to me that the balance of convenience could favour permitting the plaintiff to return to work at this stage.

17

It seems to me that it necessarily follows that the plaintiff is not entitled to an order requiring the defendant, on an interlocutory basis, to return him to the payroll. It is common case that he ceased being paid in circumstances where he had gone on sick leave and the period during which he was entitled, as a matter of contract, to sick pay had expired. His lack of pay is not, therefore, as a result of any disciplinary process. The only basis upon which he can argue that he is entitled be paid is the same basis upon which he argues that he is entitled to return to work. In those circumstances it does not appear to me to be appropriate to grant interlocutory relief in relation to pay. However given that the plaintiff has been without pay for a significant period of time it does seem to me that the full trial of the issues concerning his entitlement to return to work on the basis for which he contends should be expedited and I will hear the parties in due course as to appropriate measures which should be put in place to ensure that occurs.

THE DISCIPLINARY PROCESS
18

The final matter in respect of which the plaintiff...

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