FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : FIRST GLASS LIMITED (REPRESENTED BY ESA CONSULTANTS) - AND - ANDRIUS BABIANSKAS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Ms O'Donnell |
1. Appeal of Adjudication Officer Decision No. R-155560-WT-15/SR.
BACKGROUND:
2. The employee appealed the Adjudicator's Decision to the Labour Court n accordance with Section 28(1) of the Organisation of Working Time Act, 1997 on the 1st March 2016. A Labour Court hearing took place on the 8 June 2016. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Andrius Babianskas against the decision of an Adjudication Officer Decision No. r-155560-wt-15/SR, in a claim under the Organisation of Working Time Act 1997 (the Act) alleging penalisation against his former employer, First Glass Limited.
In line with the normal practice of the Court the parties are referred to as they were at first instance. Accordingly, Mr Babianskas is referred to as “the Complainant” and First Glass Limited is referred to as “the Respondent”.
The Complainant was employed by the Respondent as a lorry driver from 4thSeptember 2005. His employment ceased in December 2015. He was required to attend a disciplinary hearing on 21stApril 2015. He complained this action by the Respondent was an act of penalisation by reason of having submitted claims pursuant to the Act in May 2014 and to further similar claims made on 17thDecember 2014, the subject matter of which are now on appeal to the High Court.
Summary of the Complainant’s Case
Mr. Richard Grogan, Richard Grogan & Associates, Solicitors, on behalf of the Complainant submitted that the Respondent was in breach of Section 26 of the Act in that the following the referral of complaints under the Act the Complainant was subjected to a disciplinary hearing for having taken time off on the occasion of the premature birth of his child. Mr Grogan accepted that the Complainant did not have consent to take the time off however, he said such consent was not refused.
Summary of the Respondent’s Position
Mr Joseph L. Bolger, ESA Consultants, on behalf of the Respondent, denied that there was any connection between the complaints made under the Act and disciplinary hearing held on 21stApril 2015. He stated that the hearing was held to consider the Complainant’s actions in notifying the Respondent on 9thApril 2015 that his daughter had been born the day before and he was not coming in to work until Monday 13thApril 2015. This occurred in circumstances where the Complainant had not provided any prior notification that he would be requiring such leave, nor had he notified the Respondent that his wife was expecting a baby.
Mr Bolger stated that the meeting on 21stApril 2015 was arranged to discuss the Complainant’s failure to follow proper procedures, following which it decided that no sanction would be imposed on him for his actions.
Evidence
Evidence was given by the Complainant with the assistance of an Interpreter and by a Manager on behalf of the Respondent. The Complainant in his evidence stated that no disciplinary sanction was imposed on him for his failure to provide prior notice of his requirement for leave on the birth of his daughter. He said that he had not provided prior notice of the impending birth of a baby as there had been complications with a previous pregnancy and he wished to keep this one confidential.
Conclusions of the Court
Section 26 of the Act provides in relevant part:
- (1) an employer shall not penalise an employee for having in good faith opposed by lawful means an act which is unlawful under this Act.
Penalisation is not defined by the Act. However the term is generally accepted as meaning the imposition on an employee of some detriment in respect to his or her conditions of employment for having asserted a legal right, including the making of a complaint in good faith. Therefore, in order to make out a complaint of penalisation it is necessary for the Complainant to establish a causal link between the claims he made under the Act, which are the subject of an appeal to the High Court and the detriment which he alleged he suffered in his employment.
The Court is of the view that in the circumstances where an employee avails of unauthorised leave in contravention of Company rules, it is not unreasonable for an employer to conduct a disciplinary hearing to investigate matters. In this case, no disciplinary sanction was imposed on the Complainant as a result of the Respondent’s investigation into matters. Therefore, no detriment ensued.
Having considered the submission made and the evidence given, the Court is not satisfied that the Complainant suffered a detriment. Accordingly, the Court finds that no breach of the Act occurred in this case.
Determination
For the reasons set out herein the Court finds that the Complainant’s complaints alleging a contravention of Section 26 of the Act is not well-founded. Accordingly, the Complainant’s appeal is disallowed and the decision of the Adjudication Officer is upheld albeit for different reasons.
Signed on behalf of the Labour Court
Caroline Jenkinson
LS______________________
20 June 2016Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.