FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : B BRAUN HOSPICARE (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal of a Rights Commissioner Recommendation No: r-070709-ir-08/SR.
BACKGROUND:
2. This case concerns an appeal by the employer of Rights Commissioner's Recommendation r-070709-ir-08/SR. The case concerns an employee of the Company who allegedly absented herself from work for one week's annual leave without Management's approval.
It is the employers contention that the worker, having not been approved to take the leave, acted at variance with Company procedures by taking the leave without permission. The worker was subsequently given a first written warning in line with the Company Grievance Procedures
The worker 's position is that she had applied to take leave carried over from the previous year, referred to as "floating leave", yet was refused. It is then alleged that she applied for annual leave instead, which was also refused. She claims that as she had already planned her holidays she had no option but to take the time off.
The case was referred to a Rights Commissioner for investigation. His recommendation issued on 5th March, 2009, and found that the employer had been obstructive in relation to the employee's request to take time off, yet having been refused the time off, the worker defied a management instruction and thereby some sanction was appropriate. The Rights Commissioner recommended that Stage 1 written warning in relation to this issue be reduced to a Stage 1 verbal warning.
On the 31st March 2009, the employer appealed the Rights Commissioner's recommendation in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 18th May, 2010, in Sligo.
COMPANY'S ARGUMENTS:
3. 1. The worker was issued with a Stage 1 written warning, having been absent from work on leave without Management's approval. A verbal warning was already in place relating to extensive periods of certified sick leave which also prevailed at that time.
2. Management's procedures state that "floating leave" when taken can be for no more that 3 days at one time and with no more than three people absent at one time.
3. Management must retain the right to manage in line with its own procedures, the worker disobeyed a legitimate Management instruction which resulted in the appropriate disciplinary sanction.
UNION'S ARGUMENTS:
4. 1. While the application to take the "floating leave" was refused, the worker was informed that annual leave could be taken instead. On the basis of this, the worker made her holiday arrangements. Subsequently, management rescinded its offer relating to the annual leave, leaving the worker with no option but to absent herself from work.
2. The worker has many years service with the Company and is not an abuser of the sick leave system. Unfortunately, in recent years there have been periods of excessive sick leave which have been the subject of seperate disciplinary procedures with the Company.
DECISION:
Having regard to all the circumstances of this case the Court does not regard the Company’s decision to issue the Claimant with a first written warning as unreasonable.
In these circumstances the Court cannot uphold the recommendation of the Rights Commissioner.
Accordingly the employer's appeal is allowed and the recommendation of the Rights Commissioner is set aside.
Signed on behalf of the Labour Court
Kevin Duffy
3rd June, 2010.______________________
AH.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.