FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : IARNROD EIREANN - AND - A WORKER (REPRESENTED BY THE AMALGAMATED TRANSPORT AND GENERAL WORKERS' UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Pierce Worker Member: Mr O'Neill |
1. Alleged withholding of wages.
BACKGROUND:
2. The worker is a train driver based in the Westport Depot. On the 25th of September, 2000, the worker was due to attend a locomotive drivers' refresher course in Athlone, and was due to finish on the 29th of September, 2000. He had previously requested 2 days' annual leave for the 28th/29th of September, but this could not be facilitated because of the refresher course. On the 27th of September, the worker was certified ill and supplied a doctor's certificate for 6 days i.e. until the 3rd of October. He was rostered for rest days from the 30th of September to the 2nd of October inclusive, and was due to go on annual leave from the 5th of October.
The Union's case is that the worker was deducted 2 days' pay at this period although he was not informed that this would happen. He become aware of the deduction on his return to work after the holidays which followed his sick leave period. (At the Court hearing, there was disagreement between the parties as to whether the worker's stationmaster in Westport was aware that the 2 days' pay had been deducted in October.)
On the 4th of October, the Acting District Manager in Galway issued the worker a disciplinary "A Form" which read "Absence from duty without leave on the following dates - Thursday 28/09/2000, Friday 29/09/2000, Saturday 30/09/2000." The worker requested an oral hearing as provided for within the agreed procedures and this took place on the 29th of November, 2000. At the hearing, it was established that the worker had attended a meeting in Dublin with the British ASLEF train drivers union on the 28th of September. Following the hearing, the worker was suspended from duty without pay for 2 days (28/29 September). The charges relating to the 30th of September were withdrawn. The 2 days' suspension without pay has not been implemented yet but, the Union argues, if it is the worker will lose a total of 4 days' pay. The worker then appealed his case to a "higher manager" who upheld the decision of the Acting District Manager in Galway.
The worker referred his case to the Labour Court on the 10th of January, 2001, in accordance with Section 20(1) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 18th of April, 2002, in Athlone, the earliest date suitable to the parties. The worker agreed to be bound by the Court's recommendation.
UNION'S ARGUMENTS:
3. 1. At no point was the worker advised that the 2 days' wages were to be deducted. The deduction was made before any disciplinary hearing took place which is against the principle of natural justice.
2. The disciplinary hearing did not take place until the 29th of November, well outside the 7 day time-span provided for such a hearing in the Company's "Grievance and Disciplinary Policies and Procedures."
3. Section 5 of the Payment of Wages Act, 1991 provides that an employer cannot make a deduction from an employee's wages unless the employee has given his prior consent in writing.
COMPANY'S ARGUMENTS:
4. 1. Completion of the refresher course is mandatory every 2 years for drivers.
2. It is the Company's belief that when the worker's request for 2 days' annual leave was refused, he adopted an alternative approach in seeking paid leave by obtaining a medical certificate.
3. The worker has admitted that he attended the meeting with the ASLEF Union in Dublin on the 28th of September although he was supposed to have been on sick leave.
4. The disciplinary charges were properly dealt with in accordance with Company procedures.
RECOMMENDATION:
Having regard to all the facts of this case, the Court accepts that an adequate basis existed on which the Company could have reasonably concluded that the worker's absence was not wholly attributable to illness. In these circumstances, the Court accepts that the Company was entitled to treat the absence as unauthorised and to withhold payment for the two days.
Accordingly, the Court does not recommend concession of the worker's claim.
Signed on behalf of the Labour Court
Kevin Duffy
29th April, 2002______________________
CON/MBDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ciaran O'Neill, Court Secretary.