Labour Court Database __________________________________________________________________________________ File Number: CD93201 Case Number: AD9380 Section / Act: S13(9) Parties: BASTA IRELAND LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Company against Rights Commissioner's Recommendation No. S.T. 10/93 concerning compassionate leave.
Recommendation:
5. On the basis of the evidence submitted the Court is satisfied
that the Supervisor involved in the dispute was misunderstood by
the worker herein concerned. The Court is further satisfied that
the granting of compassionate leave is discretionary. In addition
the Court must note the procedural issue raised by the Company
relating to the Rights Commissioner's hearing.
The Court is sympathetic to the Company's appeal and its anxiety
to support the Supervisor.
However in view of the remedy recommended by the Rights
Commissioner the Court consider that (taking into account the
views expressed above) it should support the recommendation and
reject the appeal.
The Court so decides.
Division: Ms Owens Mr Keogh Mr Rorke
Text of Document__________________________________________________________________
CD93201 APPEAL DECISION NO. AD8093
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: BASTA IRELAND LIMITED
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS CONFEDERATION)
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Company against Rights Commissioner's
Recommendation No. S.T. 10/93 concerning compassionate leave.
BACKGROUND:
2. The Company manufactures zinc die cast builders hardware. The
core business is supplemented by the purchase and sale of other
hardware products. It is located in Tubbercurry and employs
approximately 76 workers.
The dispute concerns management's alleged agreement to allow the
worker concerned substitute a day from his compassionate leave
entitlement to attend the month's mind Mass for his deceased aunt.
In 1992, during the period when the Company was closed for Easter,
an aunt of the worker concerned died. On Tuesday 22nd April,
1992, the worker reported for work in the normal way after the
Easter holiday. The rules governing Compassionate Leave are set
down in the plant agreement as follows:
"An employee will be allowed Compassionate leave, at the
Company's discretion, with basic pay in the following
circumstances:-
(1) Death of Spouse, child, parent, brother or sister - 3
days leave.
(2) Death of Grandparent, grandchild, uncle, aunt or
parent-in-law, one days leave".
On 2/4/90 the Company clarified the basis of operation of the
compassionate leave to include the following additional
sentence:-
"Leave as referred to above refers to the maximum leave
available and the term day or days refer to those days
immediately following the death, where otherwise the employee
would be required to work".
The matter was referred to a Rights Commissioner for investigation
and recommendation. On 23rd February, 1993 the Rights
Commissioner recommended as follows:
"1. The Employer states inter alia in his submission "The
nature of the matter rests upon the conversation between
the worker and his Supervisor on the 22/4/92". The
Employer went on to back the Supervisor's version given
his record with the Company in relation to dealing
reasonably with the men.
2. However I have now to hand the written statement of a
witness to the conversation a Mr. Patrick O'Donnell. He
claims that the Supervisor said "it was not a problem"
when told that the worker was working up the day for
month's mind Mass.
3. In these circumstances I must give the claimant the
benefit of the doubt. I therefore recommend that upon the
next entitlement he has to Compassionate Leave that he is
afforded an additional day's leave for month's mind Mass
if he chooses".
The Rights Commissioner's Recommendation was appealed by the
Company to the Labour Court on 24th March, 1993. The Court heard
the appeal in Sligo on 15th September, 1993.
UNION'S ARGUMENTS:
3. 1. On 22nd April, 1992, the worker requested permission from
his supervisor to defer one days' compassionate leave to
attend the month's mind Mass for his deceased aunt. His
supervisor agreed to his request.
2. A witness to the conversation made a written statement as
follows:"
"I am a witness to a conversation between the worker and
the supervisor. It was for a day off. The worker said
he was working in lieu for a day off for a months mind
mass. The supervisor said it was no problem".
COMPANY'S ARGUMENTS:
4. 1. The supervisor is adamant that no request was made by the
worker to use compassionate leave to attend the month's mind
Mass.
2. The Company supports the supervisor's version of the
conversation. His account is also supported by the Company's
policy in administering compassionate leave.
3. Compassionate leave is afforded as a benefit to employees,
as distinct from a right. Compassionate leave is afforded "at
the Company's discretion". Furthermore, the clarification
issued by the Company on 2/4/90 emphasised the fact that the
reference to day or days as may be taken referred to those
days immediately following the death concerned.
4. Compassionate leave by its nature is a recognition of the
difficulties that are experienced when a near relative dies.
Such leave is not afforded as some form of floating leave with
the same transferability as annual leave which would be
entirely improper having regard to the rationale for affording
compassionate leave.
5. The worker did not accept the Company's offer of a day off
at his own expense.
6. The present claim is an attempt to extend the application
of compassionate leave beyond the boundaries applied by the
Company. The approach of the Company in the matter was
entirely reasonable, the worker chose to put his own
interpretation on his conversation with the supervisor.
DECISION:
5. On the basis of the evidence submitted the Court is satisfied
that the Supervisor involved in the dispute was misunderstood by
the worker herein concerned. The Court is further satisfied that
the granting of compassionate leave is discretionary. In addition
the Court must note the procedural issue raised by the Company
relating to the Rights Commissioner's hearing.
The Court is sympathetic to the Company's appeal and its anxiety
to support the Supervisor.
However in view of the remedy recommended by the Rights
Commissioner the Court consider that (taking into account the
views expressed above) it should support the recommendation and
reject the appeal.
The Court so decides.
~
Signed on behalf of the Labour Court
Evelyn Owens
_____________________
4th October, 1993. Deputy Chairman.
F.B./J.C.