FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : UNIVERSITY COLLEGE CORK - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioners Recommendation r-119942-Ir-12/JOC.
BACKGROUND:
2. This dispute arose when the University took disciplinary action against the Worker for being absent from work without authorisation in breach of the terms of her contract of employment. This matter was referred to a Rights Commissioner for investigation and recommendation. On the 24th July, 2012 the Rights Commissioner issued the following Recommendation:-
- “The parties should meet and agree a procedure for dealing with extra hours over and above the normal working hours that are required to meet the service requirements of the students. The claimant is paid a once off lump sum of €5000 to buy out any remaining TOIL time owed. On the basis of this recommendation been accepted the warning is deemed to have been expunged from the claimants record”.
On the 15th August, 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 7th February, 2013.
UNION'S ARGUMENTS:
3. 1. The delivery of a quality accommodation and student activities service requires considerable out-of-hours’ work.
2. The Worker goes well beyond the normal working day and is paid a normal wage without any overtime.
3.The original letter of employment makes no reference to time-off-in-lieu (TOIL) which is now a condition of employment as part of custom and practice.
COUNCIL'S ARGUMENTS:
4. 1. The Worker's conditions of employment state the normal hours of duty are Monday to Friday 9:15am to 5pm with 70 minutes for lunch.
2. The concerns regarding the Worker's non-adherence to the University policy in relation to taking of leave in the form of time-off-in-lieu were first raised with her in September 2008.
3. The Worker was issued with a written warning having been found to have taken significant unauthorised leave and having declined to indicate that she would comply with University policy in this regard in the future.
DECISION:
This is an appeal by UCC against a Rights Commissioner’s Recommendation which recommended that the parties should meet to agree a procedure for dealing with hours worked over and above normal working hours and that the Claimant should be paid €5000 to buy out any remaining “time-off-in-lieu” owed. Furthermore, he recommended that a written warning issued to her should be deemed expunged from her record.
The University appealed the Recommendation on the basis that the Claimant was found to have been absent without authorisation in breach of her contract of employment and its own policy and accordingly it does not accept that it should have to compensate her for unapproved or unauthorised leave.
The Union on behalf of the Claimant submitted that the nature of her work requires her to attend out-of-hours on a regular basis and accordingly a custom and practice has emerged whereby “time-off-in-lieu” was taken to cover these hours. It sought the immediate withdrawal of the warning and an award of compensation for the time owed. In order to avoid future problem reoccurring, the Union sought a level of predictability and agreement on the issue.
Having considered the submissions of both sides the Court notes that the level of “time-off-in-lieu” exceeded what could have been considered as the norm and accordingly recommends that the parties should enter into discussions on seeking an agreement on the taking of “time-off-in-lieu”. These discussions should include the issue of the Claimant’s outstanding “time-off-in-lieu” and on the completion of such an agreement the Court recommends that the warning should be expunged from the Claimant’s personnel file.
The Rights Commissioner’s Recommendation is varied accordingly.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
22nd February, 2013Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.