FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DUBLIN ZOO (REPRESENTED BY MANAGEMENT SUPPORT SERVICES) - AND - A WORKER (REPRESENTED BY UNITE) DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Recommendation R-115300-IR-11/GC.
BACKGROUND:
2. The case before the Court concerns the Employer's appeal of a Rights Commissioner's Recommendation R-115300-IR-11/GC. The Rights Commissioner recommended a disciplinary sanction imposed on the Worker to be downgraded in status from a final written warning and a two week suspension to the lesser penalty of a verbal warning.
The Worker is currently employed as a retail assistant in Dublin Zoo. In January 2011, in line with procedure, the Worker applied to take three weeks annual leave in the following April and May. Management informed the Worker that they could not facilitate three weeks leave in this period and refused her request. Management advised the Worker that they could allow her to take two weeks leave however a period of three weeks was impossible. The Worker then submitted a revised application for two weeks annual leave. In the time leading up to the Worker's leave period, she was rostered in the usual manner and was scheduled to work the week before her approved leave period commenced. The Worker did not attend for work on the week she originally requested and had been refused leave.
When the Worker returned from annual leave she was invited to a disciplinary hearing where she was penalised with a final written warning and a two week unpaid suspension. It is the Worker's claim that she was treated in an inequitable manner and the sanction imposed on her was harsh in nature. The Employer rejects the Worker's claim arguing that her actions fully warranted this sanction. The matter was referred to a Rights Commissioner for investigation and recommendation.
On the 1st March, 2012, the Rights Commissioner issued her recommendation as follows:
"The Claimant took a calculated risk when she extended her holiday without authorisation. She should note that it is a condition in her written contract of employment that her employer reserves the right to nominate when leave may be taken, and the nomination of timing of annual leave is also provided for in the Organisation of Working Time Act 1997.
However I find the penalty was harsh given the particular personal circumstances which surrounded this case. I recommend the penalty be reduced to a verbal warning".
On the 13th March, 2012 the Employer 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 on the 19th June, 2012.
UNION'S ARGUMENTS:
3. 1. The Worker contends that she was treated in an unfair manner when Management did not take her personal circumstances into consideration and refused her application for three weeks leave.
2. The Worker maintains that she submitted her annual leave application in sufficient time that would allow for replacement cover.
3. The Worker asks that the Rights Commissioner's Recommendation be upheld as fair and reasonable in all the circumstances.
EMPLOYER'S ARGUMENTS:
4. 1. The Worker took unauthorised leave in the clear knowledge that her leave request had been refused by Management.
2. The Worker was fully aware that she would face disciplinary action before she commenced her period of unauthorised absence.
3. The penalties imposed on the Worker were in line with the Employer's disciplinary procedure.
DECISION:
The Court has carefully considered the submissions of both parties to this dispute.
The Court takes the view that the issues involved in this case are significant and warrant serious disciplinary action. However the Court also takes the view that the procedures in place within the Company are deficient.
Accordingly the Court has decided that the Rights Commissioner's Recommendation be set aside; that the Worker be issued with a final written warning to remain active for a period of six months and that the parties review the disciplinary procedures to bring them in line with modern best practice in this area.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
3rd July 2012______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.