FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : KILDARE COUNTY COUNCIL (REPRESENTED BY LGMSB) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal of a Rights Commissioner's Recommendation R-091240-IR-10/RG
BACKGROUND:
2. The case before the Court concerns a claim by the Union on behalf of its member currently employed by the Council as a Senior Executive Engineer. The dispute relates to the Claimant's unsuccessful application to avail of the "Shorter Working Year Scheme" currently in operation in the Council. In 2009, the Claimant put forward his application to avail of leave in 2010 as part of the Scheme. The Claimant was later informed that his application had been unsuccessful. He appealed this decision internally however the decision remained unchanged. The Claimant subsequently raised further grievances and through the Union, referred his case to a Rights Commissioner for investigation. On the 13th October 2010, the Rights Commissioner issued her Recommendation as follows:
"On the basis of the evidence and detailed submissions from both parties I recommend as follows:
1. This is a national scheme operating in each Local Authority.
2. Kildare County Council refused all applications for 2010 on the basis of a reduction in staffing numbers and the undue burden that would be placed on remaining employees. This is in conformity with Circular EL 09/09 establishing the Shorter Working Year Scheme.
3. The Claimant did not advance any argument as to why he should be treated differently to all other employees who also had their applications refused this year. I further note that the Claimant has availed of this Scheme in 2009 and the Term Time scheme, which supersedes the current Scheme, over the last number of years.
I can see no basis for Kildare County Council to grant the Claimant 8 weeks or 6 weeks unpaid leave in 2010".
On the 10th November 2010, the Union on behalf of its member appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with section 13(9) of the Industrial Relations Act 1969. A Labour Court hearing took place on16th September, 2011.
UNION'S ARGUMENTS:
3. 1. The Claimant was afforded the opportunity to participate in this Scheme and in the Term Time scheme on previous occasions and disputes the reasons put forward by the Council for refusal of his application.
2. Is is the Union's contention that the Council has unilaterally placed a blanket ban on the operation of the Scheme without consultation and negotiation in line with agreed procedures.
COUNCIL'S ARGUMENTS:
4. 1. The Claimant's application to participate in the Scheme was refused on the grounds of legitimate business reasons.
2. In line with organisational requirements the Council had no alternative other than to refuse all applications made at the same time as the Claimant.
3. The Council operated strictly within the terms of the Scheme when it refused the Claimant's application.
DECISION:
It appears to the Court that the Local Authority has, in effect, ceased to operate the scheme in issue.
This scheme is an important and valuable facility which allows staff to reconcile work and family responsibilities. Its effective discontinuance in this Local Authority must be regarded as a retrograde step. The staffing issues arising in this Local Authority also affect other Authorities which have continued to operate the scheme. Accordingly the Court cannot see any justifiable reason as to why this Authority should not similarly operate the scheme.
Should the Claimant apply to participate in the scheme next year, his application should be considered on its merits. However, the Council and the Unions representing its staff should negotiate such modification, consistent with the general provisions of the scheme, as may be necessary to address the particular staffing issues arising in this Authority.
Signed on behalf of the Labour Court
Kevin Duffy
27th September 2011______________________
SCChairman
NOTE
Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.