EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Robert Flanagan PL3/2014
against the recommendation of the Rights Commissioner in the case of:
Bus Atha Cliath/Dublin Bus
under
PARENTAL LEAVE ACTS 1998 AND 2006
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath B.L.
Members: Mr P. Pierce
Mr N. Dowling
heard this appeal at Dublin on 16th December 2015
Representation:
Appellant : Mr Paul Rowsome, National Bus and Rail Union,
54 Parnell Square, Dublin 1
Respondent : Mr Hugh Hannon, CIE Solicitors Office, Bridgewater House,
Bridgewater Quay, Islandbridge, Dublin 8
This case came before the Tribunal by way of an appeal by an employee against a recommendation of a Rights Commissioner reference r-142533-pl-14/JT
The decision of the Tribunal was as follows:
The Tribunal has considered the evidence adduced. The appellant has appealed a Rights’ Commissioner’s finding in refusing to find in favour of the appellant for recognition of an application for force majeure leave on the 16th September 2013.
The appellant is a bus driver operating out of the Harristown garage in north county Dublin. He was due to go on duty early on 16th September 2013 but failed to make it in and instead rang in stating he had overslept. He looked for a day’s leave but was refused it as there was a shortage of staff per the station inspector.
The appellant was given a late shift on that day which he agreed he would attend for. Within the next hour or two the appellant rang in saying he now needed to take a force majeure day and although he did not state the exact reason his experience with a claim of this sort was such that such an application would be taken as valid and taken in good faith.
However, the employer made the case that the series of events led them to doubt the true nature of the application and the request for force majeure leave.
A formal application for force majeure leave was filled out on the 18th of September but the depot administrator referred back to the inspector’s account of the morning’s events and doubted the true nature of the application.
The Tribunal accepts as fact that a member of the appellant’s family was sick and in need of his presence. The Tribunal must also accept as a matter of fact that the appellant himself created a doubt over the veracity of his claim by ringing in late having overslept and having sought and been refused an annual leave day.
The Tribunal is critical of the decision making process insofar as the decision was made without the inspector’s report being put to the appellant with no right of reply given.
The Tribunal further notes there seems to have been an appeal of some sort but cannot be clear whether this was part of a formal process.
In the circumstances and pursuant to its authority made under section 21 of the relevant Act the Tribunal in upsetting and varying the recommendation of the Rights’ Commissioner recommendation awards the appellant €100.00 under the Parental Act, 1998 and 2006 as compensation for the lost day.
The Tribunal makes no award in recognition of the loss of the bonus for attendance as the loss of this payment related to up to four days over the eight allowed. There was no evidence that the appellant instigated an internal right of appeal against that non-payment. .
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)