FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : SAR SECURITY (IRELAND) LTD (REPRESENTED BY DE B�RCA, SOLICITORS) - AND - A WORKER DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. An appeal of an Adjudication Officer's Decision No: ADJ-00003565.
BACKGROUND:
2. This case concerns the right of the Claimant to take unpaid leave giving 8 hours’ notice to the Employer.
- The Employer said it won a tender to take over a security contract from another company and after extensive consultations all affected employees of that company were transferred to the Employer which included their personal files. The Claimant said he was entitled to take unpaid leave giving 8 hours’ notice but this entitlement was not included in his contract transferred to the Employer.
- The Claimant said on the 15 January 2016 he called the NCC/controller and informed her that he had an appointment on Thursday 21 January and that he would be unavailable for his shift. On the 20 January he made a reminder call and was asked to send an e-mail confirming that he was taking the day off. On the 27 January he received an e-mail inviting him to an investigation meeting on the allegation that the day's leave was unauthorised.
- This matter was referred to an Adjudication Officer for investigation and Recommendation. On the 16 November 2016 the Adjudication Officer issued the following Recommendation:-
- I am of the view that the Complainant was within his contract when he gave notice on 20 January, that he was taking a leave day the following day, because that was in his contract and the terms of his contract were not agreed. However when asked at the investigation meeting (which MW was entitled to ask him to attend and which he was obliged to go to) to furnish the evidence to demonstrate his contractual right, he refused and in doing so, the Respondent had an entitlement to ask him to release his contract documents. This request was reasonable.
…. I find that this case to be not well founded.
- I am of the view that the Complainant was within his contract when he gave notice on 20 January, that he was taking a leave day the following day, because that was in his contract and the terms of his contract were not agreed. However when asked at the investigation meeting (which MW was entitled to ask him to attend and which he was obliged to go to) to furnish the evidence to demonstrate his contractual right, he refused and in doing so, the Respondent had an entitlement to ask him to release his contract documents. This request was reasonable.
The Claimant appealed the Adjudication Officer’s Recommendation to the Labour Court on the 21 November 2016 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on the 21 January 2017.
CLAIMANT’S ARGUMENTS:
3. 1. The Transfer of Undertakings 2003 Regulations guarantee continuity of service and that all terms of conditions previously enjoyed by an employee transfers and thus remain the same in the event of a transfer to another company.
2. The claim by the Employer of not having his contract or part thereof or not having previous knowledge of the September 2012 memo in regards to provisions for taking an unpaid day off with 8 hours’ notice is tenuous.
3. He was denied representation at the investigation hearing and was bullied and harassed by the Employer’s contrived and malicious allegation of unauthorised absence.
EMPLOYER’S ARGUMENTS:
4. 1. The Claimant contacted JP on the 20 January 2016 at 15:06 to say he was unavailable for work on the next day. JP immediately responded at 15:59 confirming he was rostered to work and that she was not aware of a previous discussion on the issue.
2. The Claimant was called to an investigation meeting on the 3 February 2016 for failing to report for duties without authorisation in breach of the terms and conditions of his employment. At that meeting the Claimant refused to provide evidence that he was entitled to take unpaid leave with 8 hours’ notice and he refused to provide the Employer with the authority to access his contract documents from his previous employer.
3. The Claimant submitted a claim of bullying and harassment. Following an investigation the claim was not upheld. The Claimant provided the Employer with an unsigned memo dated September 2012 at the WRC Hearing in August 2016. This was the first occasion that the Employer saw any document to support his position.
DECISION:
Having given careful consideration to the extensive written and oral submissions, including supplementary submissions, of both parties to this dispute, the Court finds that the Recommendation of the Adjudication Officer is, in all the circumstances of this case, fair, reasonable and proportionate and consistent with all of the evidence before it. Accordingly the Court affirms the Recommendation without amendment.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
CR______________________
25 May 2017.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.