ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001882

Complaint for Resolution:

Date of Adjudication Hearing: 21st April 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 11^th February 2016, the complainant referred a complaint made to the Industrial Relations Act to the Workplace Relations Commission. The complaint was scheduled for adjudication on the 21^st April 2016. The complainant is a general operative and the respondent is a manufacturer of soft drinks.

The complainant was represented by SIPTU and one colleague attended as a witness. The respondent was represented by IBEC and three witnesses attended on its behalf.

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

Complainant’s Submission and Presentation:

The complaint relates to a first written warning served on the complainant on the 31^st March 2015. The complainant challenges the basis of the warning, that he had taken an unauthorised absence from the workplace. He said that in his 15 years of employment with the respondent, he had no disciplinary issues. The days in question were the 23^rd and 24^th February 2015 and the complainant outlined that he had booked two days annual leave with a team leader. He had booked the leave on the 17^th February 2015 and the days were assigned to him on the time and attendance system. On the 19^th February 2015, the production manager approached the complainant to say that he could not have this time off. The complainant replied that he had already booked hotel accommodation for the period in question. On the 20^th February 2015, the production manager again approached the complainant to say that the leave would be withdrawn unless he provided the respondent with evidence; the complainant replied that this was an invasion of privacy. In turn, the production manager replied “take your holidays and you can fight for your pay.” The complainant did not attend work on the 23^rd and 24^th February 2015. The complainant then attended a disciplinary meeting, following which he was issued with a first written warning, upheld on appeal. As redress, the complainant seeks a finding that the respondent behaved inappropriately and seeks compensation.

In reply to the respondent, the complainant said that his booking of annual leave was independent of the conference issue. He had been to every conference run in connection with the Great Places to Work initiative in City West and Croke Park and had enjoyed them. He had signed the petition as he thought it had come from the union, but this did not turn out to be the case. He said that a notice had been fixed by management to the notice board to suggest that people take annual leave on the day of the conference. The complainant acknowledged that the respondent had suggested that he show the hotel reservation to a shop steward, but he said that this was still an invasion of privacy. He did not accept that there had been special circumstances arising in this case and it was only the respondent who believed this to be the case.

Respondent’s Submission and Presentation:

The respondent outlined that the complainant made a leave application on the 18^th February 2015 for two days of leave for the 23^rd and 24^th February 2015. As background, the respondent was in the course of participating in the Great Places to Work initiative and the respondent wished for all employees to attend a conference on the 24^th February 2015. There had been opposition to staff having to attend the conference and a petition organised, to which the complainant put his name. A number of staff members then submitted leave applications to coincide with the date of the conference. The applications were made to different managers in what is a multi-shift and multi-layer workplace. While a large number of applications had initially been

granted, the respondent then sought to withdraw approval where the employee had not shown bona fides, for example providing evidence of travel or booking arrangements. This meant that some employees were able to avail of the leave, while seven others, including the complainant, had had their leave approval withdrawn. The respondent outlined that it was well within its rights to act in this way and the complainant’s leave would not have been revoked had he provided proof of a hotel booking. The approval of leave is a matter of discretion and there was no limit to this discretion in the leave policy. The respondent was entitled to revoke leave and to ask for proof of hotel reservations. The respondent had followed the disciplinary process following an incident of unauthorised leave. The warning rested on the complainant’s file for six months and had now been expunged. The respondent said that at the appeal, the complainant had been given the option of providing proof of the hotel reservation and the warning would be rescinded. The complainant had replied that things had gone too far for that now. The respondent submitted that there was a requirement on all parties to act reasonably.

In reply to the complainant, the respondent outlined that it offered to the complainant that he show the hotel reservation to a shop steward as an alternative to showing the document to the respondent. The respondent had not placed a notice on the notice board regarding the taking of leave on the day of the conference and that it may have been placed by a colleague. The respondent submitted that it was not possible to divorce this case from the wider industrial relations issue. It referred to its letter to the complainant of the 31^st March 2015 and the existence of unique circumstances that caused the respondent to provide equal treatment to all staff members by requesting evidence of hotel bookings. In this case, it had been the complainant who had acted unreasonably.

Findings and reasoning:

The respondent’s annual leave policy provides as follows in relation to the approval of annual leave: “Prior approval for all annual leave must be obtained from the line manager. Annual leave will not be granted retrospectively upon return from a period of absence. Approval is at the discretion of management and will be dependent on the resource needs of the department. Leave shall be granted on a first come, first serve basis, subject to the demands of the operation. The company has an automated time and attendance system… Requests for annual leave shall be made online using the … system. Once the leave has been approved, amendments may only be made with the line manager’s approval.”

Section 20(1) of the Organisation of Working Time Act provides as follows:

“20.— (1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject—

(a) to the employer taking into account—

(i) the need for the employee to reconcile work and any family responsibilities,

(ii) the opportunities for rest and recreation available to the employee.”

The complainant had applied and was approved for annual leave for the 24^th February 2015. The respondent sought to revoke the annual leave or, in the alternative, required the complainant prove the bona fides of his leave, for example to provide evidence of a hotel reservation. The complainant refused to do so and was absent from work on the 24^th February 2015. The respondent deemed this to be an unauthorized absence and issued the complainant with a first written warning. This has since expired. The complainant challenges the decision to issue the disciplinary sanction.

It is fair to say that there are unusual circumstances in this case: annual leave was granted and then revoked, and an alternative suggested of the employee establishing the bona fides of annual leave. It is unusual to see bona fides used in relation to annual leave when it is more commonly associated with sick leave (see, in relation to the public service, S.I. 124/14 Public Service Management (Sick Leave) Regulations). The respondent referred to the wider issue of staff opposition to attending a conference on the 24^th February 2015; it was in addressing this that it sought to revoke annual leave or to ask employees to show bona fides. The complainant denied that he was part of the staff opposition and that he had attended all previous conferences attached to the initiative.

The central issue is whether the demand for the complainant to establish the bona fides of his approved annual leave was excessive. The complainant asserts that it was, while the respondent maintains that it had the discretion to do so.

Having considered the submissions of the parties, I find that it was excessive of the respondent to require the complainant show the bona fides of the annual leave taken, for example to show a hotel reservation. Given that the respondent had approved the annual leave, the complainant was entitled to avail of it, without disclosing what he was doing on the day in question. In fact, he was perfectly entitled to do nothing and to stay at home. Even if the respondent is correct regarding the wider industrial relations issue, it was still excessive to ask the complainant to prove bona fides. Such an inquiry is not contemplated in the respondent’s annual leave policy and any such provision would be controversial.

I acknowledge that these were unusual circumstances and that the respondent was motivated by a wider industrial relations issue, whether or not the complainant was involved in this. However, given that the demand that the complainant prove bona fides was excessive and he was entitled to avail of the approved annual leave, the subsequent issue of a written warning to the complainant cannot stand. The written warning should be set aside and expunged from the complainant’s record.

Recommendation:

Section 13 of the Industrial Relations Act, 1969 requires that I make a recommendation in relation to the complaint.

CA-00002550-001

On the basis of the above findings, I recommend that the first written warning issued by the respondent to the complainant on the 31^st March 2015 be set aside and expunged from the complainant’s record.

Dated:   21/03/2017