FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : THE GALWAY COUNTY ASSOCIATION (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SANDYS & BROPHY SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Mr Pierce Worker Member: Mr O'Neill |
1. Appeal of Rights Commissioner's Recommendation IR9012/02/JH.
BACKGROUND:
2. The Worker commenced employment with Galway County Association in 1983, and was offered a permanent post in 1988. In August 2001 the worker was offered an appointment as physiotherapy manager, but there was a dispute regarding an annual leave clause in the contract which read"That annual leave to coincide in the main with the closure of the day centres". The issue was referred to a Rights Commissioner for investigation and recommendation. On the 25th October 2002 the Rights Commissioner issued her Recommendation as follows:-
"Based on the submissions made and for the reasons set out in the foregoing I do not find that the worker has a valid complaint. She should agree to take 20 of her annual leave days to coincide with the closure of the centres at Christmas, Easter and during the Summer period. This situation can be reviewed in the event that the resources in her Department are expanded and the capacity exists to allow her the flexibility that she seeks. The contract should be amended to reflect this recommendation".
(The worker was named in the Rights Commissioner's Recommendation)
The Recommendation was appealed to the Labour Court on the 29th November, 2002 in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 16th April, 2003, the earliest date suitable to the parties.
WORKER'S ARGUMENTS:
3. 1. Approximately 407 people work within the organisation. 42 staff work in children's units, and 68 work in adult day services. These employees take their annual leave when the children's unit and adult services are closed for August, Christmas and Easter as in the school holiday closures. The remaining 297 employees do not have any restrictive clause regarding annual leave and they can take their annual leave as they wish, with prior consent. There are 16 people in support services including the worker and she is the only one of the 16 who has this clause in her contract.
2. The Worker is the only Senior Physiotherapist in Ireland who has been asked to sign a contract with this restrictive clause in it. The clause conflicts with Section 20 of the Organisation of Working Time Act, 1997 for example:
(i) the need of the employee to reconcile work and for any family responsibilities, or
(ii) the opportunity for rest and recreation available to the employee.
3. The Worker has to give service to her clients 12 months of the year. She has a 64 client case load of which 27 clients receive a service within the unit and a further 28 clients receive two services, in the unit and group home or home. The remaining 9 get three services.
4. The Worker is being discriminated against in comparison to her support services colleagues and she should be on an equal footing with them with regard to annual leave.
ASSOCIATION'S ARGUMENTS:
4. 1. Annual leave is granted on the basis of the needs of the clients and the needs of the service, while taking into account the individual's needs. Many staff in the Association are obliged to take their annual leave at fixed closure dates.
2. The worker has access to a considerable amount of leave e.g. 42 days in 2002 (27 days annual leave, 4 days discretionary leave, 1 concession day and 10 days time in lieu).
3. All of the her case load of over 60 clients is based in day services with fixed closures. Fixed closures can cover periods of 24 to 34 days annually.
4. Her contract of employment clearly states that some annual leave must be taken at fixed closures days and the final decision with regard to the granting of annual leave rests with the employer.
5. Section 20 of the Organisation of Working Time Act 1997 provides thatthe times of which annual leaves granted to an employee shall be determined by his or her employer.
DECISION:
Having considered the submissions of the parties the Court is of the view that the conclusions and recommendation of the Rights Commissioner strikes a reasonable balance between the interests of both parties.
Accordingly, the recommendation is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
7th May, 2003______________________
JB/Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jackie Byrne, Court Secretary.