ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00000471
Dispute for Resolution:
Act | Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1946 | CA-00000649-001 | 05/11/2015 |
Date of Adjudication Hearing: 11/03/2016
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and the Industrial Relations Act 1946 following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
Complainant’s Submission and Presentation:
The claimant works as an Administration Officer for a Public Body . She commenced work on 20 September, 2004. The claimant had taken a number of Maternity leaves from 2007- 2015. Her claim is for time in lieu for concession days while she was on those maternity leaves:
Monday 24 December 2007
Thursday 27 December 2007
Good Friday 2 April 2010
Good Friday 3 April 2015
The claimant wrote to her Manager on 18 March 2015 seeking a review of Bank Holidays and concession days not awarded during her maternity leave.
“I would also be grateful if you could clarify if I got the benefit of Bank Holidays and Concession Days my pregnancy related sick leave during December 2009 and January 2010 or if I am due any time in lieu of these days?”
She received a response on April 10th, 2015 ,where she was informed that” there is no entitlement to concession days that occur during maternity leave “. Her Union, IMPACT took up the claim. The respondent refused the claim stating that the Public Body guidelines with regard to concession days prohibited their application to staff on leave, inclusive of maternity leave.
The claimant asserted that she wasn’t long in the Public Body employment prior to the commencement of her first maternity leave in 2007. In addition, she viewed these days as contractual entitlements as a five day (Monday to Friday) week employee. She had no recall of ever being informed that concession days didn’t apply during maternity leave and she was clear that her colleagues received these paid days off as they fell. She contended that she was treated differently in this regard.
The claimant accepted that there was no particular collective agreement between the parties which encompassed Concession days. There was, however a local interpretation in their application.
Respondent’s Submission and Presentation:
The respondent rejected the claim. The respondent reaffirmed the timeframe associated with the claimants three periods of maternity up to 28th June 2015. The respondent disputed that Good Friday had been credited as a concession day on 21 March 2007, during the claimants maternity leave as she was actually rostered for duty that day and held the entitlement to the day off .
The Respondent relied on “Best Practice Guidelines within the Health Service” as a document attached to a 2005 Hr Circular to Service Managers. This document delineated that
1 Concession Days are not covered by Legislation or statute.
2 Concessions Days were not applicable to anyone on a 7 day roster, or any nursing and support service on a 5 day roster.
3 Concession Days did not apply on Maternity Leave, Adoptive Leave, Annual Leave, and Carers leave, Special Leave, Parental Leave, Flexible Working and Job sharing.
The respondent was clear that the claimant had availed of all her leave entitlements during her paid and unpaid leave. They did not hold discretion to apply the privilege days in this case. The claimant was credited with eight days special leave with pay in lieu pf public holidays when she returned to work post her period of unpaid maternity leave in 2015.
The respondent asserted that the claimant had full knowledge of the restrictions applying to the privilege days as she had made a successful application for Parental Leave in 2010, where she excepted Bank Holiday Mondays and Concession days from the pattern of parental leave .The respondent equally commented on the time lag in the claimant‘s application given that Christmas concession days were abolished in 2012. The respondent contended that the claimant had worked in the Employee relations department and would have had a working knowledge of concession days.
The respondent drew attention to the Public Bodies Terms and Conditions of Employment dated 2009 in relation to Maternity Leave and contended that they were fully compliant with these rules and that the claimant had been fairly treated.
An argument was also extended that concession of the claim would lead to significant cost increasing claims and have wider implications across the Public Service.
Recommendation:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.
I have considered the submissions from both parties. I am mindful of the timeframe of the eight year period referred to in this case. I am struck by the lack of clarity on Concession days in this service. It is clear that the claimant was a beneficiary of all concession days up until her first maternity leave in 2007, however there was no documentation which provided an introduction to concession days, nor was there a parallel documentation on their cessation or withdrawal.
Instead, there was an unsigned Memorandum which emanated from the Director of H.R on 10 October, 2005. This document advised on annual leave, structuring of public holidays and recognition of two days as concession days. The Best Practice Guidelines on Concession Days attached are written in a negative connotation and lack clarity.
As Concession Days were applicable to the claimant from the commencement of employment, I find a clear explanation of their application should have been incorporated into the claimant’s contract of employment to dispel all confusion and uncertainty. I note that the claimant applied retrospectively for her public holiday entitlement to Public Holidays and that this served as a catalyst for seeking the information on concession days during sick leave and maternity leave.
Both parties presented well prepared arguments in this case. I understand that both parties are aggrieved by this issue. I wish to make the following recommendation in the case:
It strikes me that there was an opaqueness surrounding the communication of key information on the application of Concession Days to the claimant prior to her maternity leave in August 2007. There does not appear to have been a traceable application or recording process of concession days on behalf of the respondent. There was no link, opened to me at least, which confirmed that the claimant was informed on the restrictions of the application of these days on an Individual basis prior to the email she received on April 10,2015. These matters should have been flagged with the claimant prior to her maternity leave and I am satisfied that they were not.
On that basis, and in the interest of providing closure in this long running Dispute, I recommend that the claimant receive two days as time-in lieu, on a red circled basis, linked to her unique circumstances. This is compensation for the lack of adequate Individualised communication in this matter in anticipation of her maternity leave in 2007. This is to be in full and final settlement of the claim.
Dated: 29th June 2016
Dispute for Resolution:
|
Act | Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1946 |
CA-00000649-001 |
05/11/2015 |
Date of Adjudication Hearing: 11/03/2016
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and the Industrial Relations Act 1946 following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
Complainant’s Submission and Presentation:
The claimant works as an Administration Officer for a Public Body . She commenced work on 20 September, 2004. The claimant had taken a number of Maternity leaves from 2007- 2015. Her claim is for time in lieu for concession days while she was on those maternity leaves:
Monday 24 December 2007
Thursday 27 December 2007
Good Friday 2 April 2010
Good Friday 3 April 2015
The claimant wrote to her Manager on 18 March 2015 seeking a review of Bank Holidays and concession days not awarded during her maternity leave.
“I would also be grateful if you could clarify if I got the benefit of Bank Holidays and Concession Days my pregnancy related sick leave during December 2009 and January 2010 or if I am due any time in lieu of these days?”
She received a response on April 10th, 2015 ,where she was informed that” there is no entitlement to concession days that occur during maternity leave “. Her Union, IMPACT took up the claim. The respondent refused the claim stating that the Public Body guidelines with regard to concession days prohibited their application to staff on leave, inclusive of maternity leave.
The claimant asserted that she wasn’t long in the Public Body employment prior to the commencement of her first maternity leave in 2007. In addition, she viewed these days as contractual entitlements as a five day (Monday to Friday) week employee. She had no recall of ever being informed that concession days didn’t apply during maternity leave and she was clear that her colleagues received these paid days off as they fell. She contended that she was treated differently in this regard.
The claimant accepted that there was no particular collective agreement between the parties which encompassed Concession days. There was, however a local interpretation in their application.
Respondent’s Submission and Presentation:
The respondent rejected the claim. The respondent reaffirmed the timeframe associated with the claimants three periods of maternity up to 28th June 2015. The respondent disputed that Good Friday had been credited as a concession day on 21 March 2007, during the claimants maternity leave as she was actually rostered for duty that day and held the entitlement to the day off .
The Respondent relied on “Best Practice Guidelines within the Health Service” as a document attached to a 2005 Hr Circular to Service Managers. This document delineated that
1 Concession Days are not covered by Legislation or statute.
2 Concessions Days were not applicable to anyone on a 7 day roster, or any nursing and support service on a 5 day roster.
3 Concession Days did not apply on Maternity Leave, Adoptive Leave, Annual Leave, and Carers leave, Special Leave, Parental Leave, Flexible Working and Job sharing.
The respondent was clear that the claimant had availed of all her leave entitlements during her paid and unpaid leave. They did not hold discretion to apply the privilege days in this case. The claimant was credited with eight days special leave with pay in lieu pf public holidays when she returned to work post her period of unpaid maternity leave in 2015.
The respondent asserted that the claimant had full knowledge of the restrictions applying to the privilege days as she had made a successful application for Parental Leave in 2010, where she excepted Bank Holiday Mondays and Concession days from the pattern of parental leave .The respondent equally commented on the time lag in the claimant‘s application given that Christmas concession days were abolished in 2012. The respondent contended that the claimant had worked in the Employee relations department and would have had a working knowledge of concession days.
The respondent drew attention to the Public Bodies Terms and Conditions of Employment dated 2009 in relation to Maternity Leave and contended that they were fully compliant with these rules and that the claimant had been fairly treated.
An argument was also extended that concession of the claim would lead to significant cost increasing claims and have wider implications across the Public Service.
Recommendation:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.
I have considered the submissions from both parties. I am mindful of the timeframe of the eight year period referred to in this case. I am struck by the lack of clarity on Concession days in this service. It is clear that the claimant was a beneficiary of all concession days up until her first maternity leave in 2007, however there was no documentation which provided an introduction to concession days, nor was there a parallel documentation on their cessation or withdrawal.
Instead, there was an unsigned Memorandum which emanated from the Director of H.R on 10 October, 2005. This document advised on annual leave, structuring of public holidays and recognition of two days as concession days. The Best Practice Guidelines on Concession Days attached are written in a negative connotation and lack clarity.
As Concession Days were applicable to the claimant from the commencement of employment, I find a clear explanation of their application should have been incorporated into the claimant’s contract of employment to dispel all confusion and uncertainty. I note that the claimant applied retrospectively for her public holiday entitlement to Public Holidays and that this served as a catalyst for seeking the information on concession days during sick leave and maternity leave.
Both parties presented well prepared arguments in this case. I understand that both parties are aggrieved by this issue. I wish to make the following recommendation in the case:
It strikes me that there was an opaqueness surrounding the communication of key information on the application of Concession Days to the claimant prior to her maternity leave in August 2007. There does not appear to have been a traceable application or recording process of concession days on behalf of the respondent. There was no link, opened to me at least, which confirmed that the claimant was informed on the restrictions of the application of these days on an Individual basis prior to the email she received on April 10,2015. These matters should have been flagged with the claimant prior to her maternity leave and I am satisfied that they were not.
On that basis, and in the interest of providing closure in this long running Dispute, I recommend that the claimant receive two days as time-in lieu, on a red circled basis, linked to her unique circumstances. This is compensation for the lack of adequate Individualised communication in this matter in anticipation of her maternity leave in 2007. This is to be in full and final settlement of the claim.
Dated: 29th June 2016