Complainant

Respondent

Anonymised Parties

A Worker

Manufacturing PLant

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00010633-001

04/04/2017

The claimant was aggrieved with the decision of the respondent to deny him an application for 2 day’s compassionate leave on the death of his Aunt in the 16th.Jan. 2016

The claimant was employed by the respondent for over 30 years and had been paid 2 days compassionate leave on previous occasions on the death of a close relative.He was close to his aunt and was informed by the Gardai of her sudden death.He attended the funeral on Thursday 21st.Jan. 2016 but did not go to Dublin with other family members the following day as he was deeply upset.On his return to work he applied for 2 day’s compassionate leave- he got one day but was refused compassionate leave for the day after the funeral.He unsuccessfully appealed the decision through internal procedures.

It was contended that a previous Rights Commissioner investigation had found that the respondent had discretion to pay or not pay compassionate leave.It was argued that while the union sought to engage with the company on compassionate leave , the company insisted that the leave was at their discretion and without rational or reason were refusing applications.It was submitted that it had been argued by the company that workers were prioritising finances over the death of a family member so they should not get paid. It was submitted that the company were refusing to inform the union of what criteria they were using in their assessment of applications. The union quoted other employments where the compassionate leave provisions were more generous.

The union further contended that account should be taken of LCR 15837 where the Court determined that “the manner in which an agreement is applied over time is often at least as important as the actual written terms”.

The respondent charted the chronology of events leading up to the claimant’s application for 2days compassionate leave and the ultimate outcome following the processing of his grievance. The outcome of the appeal process was correspondence from the company advising that one day’s compassionate leave would be granted and that “ compassionate leave is generally granted where the employee can show a specific requirement to take time off work during their normal working week in the period up to and including the funeral of the family member. Applications for payment of compassionate leave after the funeral are generally not granted , nevertheless the company will remain flexible and look favourably on granting employees annual holidays circumstances.”

It was submitted that there was commonality between the cases made by the claimant and his colleagues – the works agreement provides an absolute entitlement to2 days on the death of a family member ; payment for 2 days has been made in the past and other employees have been treated more favourably and granted 2 days.

It was submitted that the granting of compassionate leave is discretionary in the Works Agreement and it is up to management to decide what payment if any is appropriate. It was advanced that the decision to award the leave takes into consideration the specific circumstances of each case   and that while the circumstances of each of the disputed cases are different, the decision to grant the leave is applied in a consistent manner throughout all departments.

It was determined that one day’s leave was appropriate to cover the claimant’s absence.

While claims for compassionate leave are generally not granted after the funeral , the respondent endeavours to be flexible allowing holidays or unpaid authorised absence.It was submitted that the claimant and his colleagues were not treated any less favourably than any other employee .

At the heart of this dispute is a perception by the union and its members that the respondent has - since 2015 - cut back on compassionate leave and has adopted a new found inquisitorial approach to applications   for compassionate leave .It was submitted that this approach is     lacking in humanity and contrary to the spirit underpinning compassionate leave .

The respondent undertook to conduct an analysis of the numbers of compassionate leave days granted since 2015 and submitted their findings in evidence. Additionally a review of compassionate leave days granted over a 4 – 5 year period up to the end of 2014 was presented. While the figures presented reflect a snapshot of overall trends they do not reveal the circumstances of each individual application, the nature or immediacy   of the relationship with the deceased , the shifts worked by the employees   and/or whether the amount granted was as a result of the pursuance of a grievance or otherwise. Notwithstanding this , when looked at in the aggregate , the figures give some credence to the unions perception of a reduction in compassionate leave – for the 4-5 period ending in Dec. 2014; 2 days were granted in 58% of cases ; 1 day was granted in 39% of cases and 0 days were granted in 3% of cases. For the period from 2015 to a current date 2 days were granted in 43% of cases ; 1 day was granted in 53% of cases and 0 days were granted in 4% of cases. On the basis of these figures it is not unreasonable for the union to contend that there has been a reduction in the overall numbers of compassionate leave days granted. However, as has been pointed out by the respondent , the current wording of the Works Agreement allows the respondent discretion in the granting of compassionate leave and accordingly I cannot uphold this complaint in circumstances where I cannot deem the respondent to be in breach of the collective agreement.

I do accept that there is merit in the union’s argument that the Labour Court   did determine in LCR 15837 that “ the manner in which an agreement is applied over time is often at least as important as the actual written terms”.While the respondent is relying on the prerogative set out in the Works Agreement , the claimants are relying upon their experiences of being subjected to intrusive questioning following their applications for compassionate leave in recent years.It is   clear that one of the parties to this works agreement has lost confidence in the other party’s   interpretation of its   compassionate leave provisions.

In all of the circumstances, I am recommending in full and final settlement of this dispute that the parties reengage with a view to updating the policy to reflect   norms   for compassionate leave that are consistent with current practise in the industry.In light of the current dispute around the terminology contained in the Works Agreement , I recommend that any revised terms would be clear, unambiguous and based on transparent criteria.