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-00012442-001

12/07/2017

The claimant has worked for the respondent for 20 years and has previously availed of compassionate leave. She was notified of the death of her close Aunt on Monday 21st.March 2016 and the remains were removed to her cousin’s house (her aunt’s son ) who lived locally the following evening. Due to her cousin’s poor health the claimant organised the wake and accommodation for family members obliged to travel. The funeral took place on Wed. 23rd.March and the claimant applied for 2 days’ compassionate leave on her return to work. She was granted one day and processed a grievance about the second day through internal procedures. Her grievance was not upheld and it was submitted that the company offered no explanation for the criteria they used in deciding to limit her to one day’s compassionate leave.

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 2 days compassionate leave. It was submitted that the claimant was granted 1 day compassionate leave for Wed 23rd.March the funeral day. It was submitted that the removal on the Tuesday evening and the wake on the Monday evening were held outside her normal work hours from 8.00-16.00. She was granted annual leave of 8 hours for the Tuesday the 22nd.March. The claimant was unsuccessful in appealing the decision to limit her to one day’s compassionate leave.

It was submitted that there was commonality between the cases made by the claimant and her 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 her 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.