ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00009867

Parties:

	Complainant	Respondent
Anonymised Parties	A Worker	A Manufacturing PLant

Complaint(s):

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-00012942-001	03/08/2017

Date of Adjudication Hearing: 25/10/2017

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 [and/or Section 13 of the Industrial Relations Acts 1969] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Summary of Complainant’s Case:

The claimant has been employed by the respondent for over 25 years and has availed of the minimum and maximum compassionate leave days for the death of a family member on a number of occasions. He was informed of the untimely death of his uncle on Saturday 20th.May 2017 and the funeral took place on Monday 22nd.May 2017.He attended the funeral with his family but did not attend work that evening at 4.00p.m. because he was distressed. On his return to work he sought I day’s compassionate leave – it was rejected and he was informed in Stage 4 correspondence that compassionate leave is only for “legitimate absences “ and “ at the discretion of the Company”. It was contended that the company refused to engage with the union to explain the meaning of legitimate absence and the criteria that was used in the decision making process.

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 it was determined that “the manner in which an agreement is applied over time is often at least as important as the actual written terms”.

Summary of Respondent’s Case:

The respondent set out the chronology of events leading up to the application for compassionate leave and presented the correspondence dealing with the claimant’s grievance into evidence.It was submitted that the application was refused in circumstances where the claimant was scheduled to work the night shift on the date in question and could therefore have attended the funeral without a requirement to be absent from work.The decision to uphold the rejection of the application for compassionate leave was upheld at every stage of the grievance procedure.

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.

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 .

It was submitted that the claimants were incorrect in their contentions of precedent and that no such precedent had been created.A mixture of 0, 1 and 2 days had been granted in the past depending on the individual circumstances.

Recommendation

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.]

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.

Dated: 23.5.18

Workplace Relations Commission Adjudication Officer: Emer O'Shea