ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001192

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 09/05/2016

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act and or Section 13 of the Industrial Relations Act, 1969 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Summary of Complainant’s Submission and Presentation:

The Complainant is seeking four weeks special leave under the Terms of Circular Letter E.L. 08/12

The Respondent Co. Council is only allowing a maximum of two weeks leave per individual application. This is not in keeping with the spirit of the Circular letter and the Union referred to Appeal Decision No. AD1178 in 2011 with the same Respondent and the same Complainant in support of their position.

The Labour Court had ruled in the Complainant’s favour on that occasion.

Summary of Respondent’s Submission and Oral Presentation:

The Respondent employer is seeking to equitably apply the Circular – bearing in mind the need to provide a wide range of local services with a much reduced overall staff compliment - down 27% in the last 6 years. The Financial resources are not available, as may have been the case in the past, to recruit temporary Summer relief staff to assist in granting leave.

In effect the Scheme is oversubscribed with applications (of 65 received it was only possible to agree 41). The full granting of all applications or even of allowing the 41 staff the full periods sought would be very detrimental to local services and place an almost impossible burden on remaining staff not taking the leave. The bulk of the leave requested also falls in the same Summer period where normal Annual Leave has to be catered for.

The Circular allows Local Authority Management discretion in the manner of application of the Scheme. The two week cap is an effort to be as equitable as possible to the 41 successful applicants for the Shorter Working Year Scheme.

Decision:

Section 41(4) of the Workplace Relations Act 2015 and or section 13 of the Industrial Relations Act, 1969 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Issues for Decision:

Was /is the manner of the implementation of the Shorter Working Year Scheme Circ. E.L. 09/09 by Respondent Co. Council fair and equitable? Is the individual Complainant entitled to be granted his four week leave application?

Legislation involved and requirements of legislation:

Industrial Relations Acts, 1969

Decision:

Recognising that the Council had more applications for the Summer Leave than it could accommodate the motivation behind the decision of Respondent Co. Council to have a two week limit on the special Shorter Working Year Scheme leave was based on a genuine desire to be equitable to all staff that applied and were accepted.

A quote from Section 22 of the Employment Equality Act, while not directly applicable, is none the less apt here.

Indirect discrimination on the gender ground.

2. —F43[(1) (a) Indirect discrimination occurs where an apparently neutral provision would put persons of a particular gender (being As or Bs) at a particular disadvantage in respect of any matter other than remuneration compared with other employees of their employer.

 (b) Where paragraph (a) applies, the employer shall be treated for the purposes of this Act as discriminating against each of the persons referred to (including A or B), unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

(1A) In any proceedings statistics are admissible for the purpose of determining whether subsection (1) applies in relation to A or B.]

(My underlining)

The Respondent Co. Council is in effect applying an “apparently neutral provision” in relation to the locally decided two week cap on Special Summer leave.

The Respondent’s defence, what could be termed their objective justification that it was seeking to have equity for all applications with the two week limit on all applications is not sustainable. It is too blunt an instrument and has to be revised.

Accordingly I recommend that Respondent Co. Council meet forthwith with the representative organisations to agree a more nuanced operation of the Shorter Working Year Scheme in the Respondent Council.

This agreement has to recognise that quite possibly not all staff can be granted the leave applied for but a more matrixed multi factored implementation policy needs to be found. Sections 22 to 27 of Circular E.L. 08/12 which govern the Scheme are quite broad and flexible in this context. Section 25 effectively almost sets out a check list of reasons to be considered.

I note Labour Court Appeal Decision No AD 1178 in a very similar context with the same Respondent Employer in 2011.

In relation to the individual Complainant’s request for four weeks leave I recommend that he immediately take up the Council’s offer of an Appeal in relation to his particular personal circumstances and how any additional leave might have an impact in relation to his colleague’s applications etc. Specialised local knowledge is required here. However I noted in the Complainant’s favour that his local managers had agreed to his four week request but the application was held to two weeks at a central level.

I noted the Respondents position that the Complainant had not utilised these internal Appeal procedures in advance of submitting a claim to the WRC.

Dated:   25/07/2016