Complainant

Respondent

Parties

Niall  Burke

Bus Eireann

Representatives

 National Bus & Rail Union, Thomas O, Connor

Human Resource Manager   

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00039897-001

17/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00039897-002

17/09/2020

This matter was heard by way of Remote Hearing pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings.

On 17 September ,2020, the Complainants Union submitted two complaints to the WRC. This case is conjoined with ADJ 30230 and both cases were heard in tandem.

The first complaint centred on the non-payment of €330.40 in respect of two days annual leave. The complaint was submitted under the Payment of Wages Act, 1991 and the Organisation of Working Time Act, 1997. The Union submitted a written submission in support of the claim.

Both claims were disputed by the Respondent who submitted and read a written submission of response into the record of hearing.

At the conclusion of the hearing, I requested that the parties to submit a copy of the letter inviting the complainant to the disciplinary hearing, his contract of employment, pay slip and record of annual leave.

The Respondent submitted supplementary documentation on 10 December 2021.

The Complainant submitted a supplementary submission received on 23 December 2021. 

I did offer the parties some time to explore the possibility for resolution in the case. The parties did avail of the time but did not record an agreement.

The Union, on behalf of the Complainant, outlined that the Complainant has worked as a full time Bus Driver with the Respondent Transport Business since April 2008.

 The Company does not operate a specific Policy on Annual Leave. Annual leave is comprised of 20 days statutory annual leave with augmented service days. These are allocated as two weeks in Summer, one week in Winter or Spring and the remainder through the medium of an ad hoc arrangement.

The Complainant applied for days off on 19/20 July 2020 and was not paid for the days. He also faced a disciplinary sanction.

The Union contended that this was unfair given the legacy agreement whereby notification of sanction for leave requests was meant to be sanctioned within 48 hours.

The Business did not operate a clocking in system per say. The Drivers logged in once driving commenced.

The Union sought payment for the hours which remained unpaid.

Evidence of the Complainant by affirmation:

The Complainant told the hearing that he had made a handwritten application for days off 19/20 July 2020 on 24 June 2020.

He said a named Colleague handed it into the Depot and placed the application in a Pidgeon Hole.

On 29 June, the Complainant approached Mr A, the Rostering Officer and asked if he had received his application? Mr A confirmed that it had been sent up to Mr B, the Depot Manager.

As a result, the Complainant had a strong belief that the request had been sent to Mr B, who had agreed to “look at it “, but nothing followed.

The Complainant availed of the days as planned for family reasons.

He was subsequently deducted two days pay for being a “no show “and reprimanded by means of a written warning of 9 months duration. He had not been notified of the expiration of warning.

On 29 July 2020, Mr A confirmed that he had not received the application for annual leave.

The Complainant appealed the non-payment and the sanction. During this process, he identified a copy of his original application on the file document held by the Respondent. He sought to draw attention to this and was not shown the application by the Appeals Officer.

He sought payment for two days. The written warning has since expired. However, the Complainant contended that the application of the warning was grossly unfair and disproportionate.

During cross examination, the Complainant accepted that he had not been granted annual leave by the Company.

He confirmed that the long running approval mechanism operational at the Business was changed following the retirement of the Rostering Officer, whom he believed retired in September 2020. He was convinced that the Rostering Officer had sent up the application for processing. Historically 99 % of leave application had been granted by the Rostering Officer.

The Complainant had not received any contact from the company and attended a family event over 19/20 July, returning to work on 21, when he learned he had been deemed a “no show “

The Complainant was unsure of what annual leave he had availed of during 2020.

The Complainant confirmed that he had not been notified of the deduction in pay in advance. He later clarified that he had taken 18 days leave in 2020. He was aggrieved at his treatment and the eventual discovery of his handwritten application for leave which he had tendered.

The Union submitted that a new annual leave policy was agreed in early 2021, a copy of which was exhibited. They also clarified that the imposition of the disciplinary sanction had not passed through the Industrial Relations pathway at WRC.

The Union relied on a Company Agreement from 14 March 2019.

It was agreed at a Meeting on Thursday 14/03/2019 that while applying for annual leave a Driver must submit a A4 sheet of paper and leave it in the tray in the Inspectors Office. For Operational where possible give at least one weeks’ notice to the company and the company will reply in no less than 48 hrs

The Union contended that the Complainant had complied with this Agreement.

The Union also drew the hearing attention to a vacancy in the rostering position, which they believed should be filled instead of local Management subsuming the role. The Union was referred to the Industrial Relations pathway as the correct forum to address this rather than an Individual employment rights case before WRC.

CA-00039897-001 Payment of Wages Act, 1991

The Union submitted that the complainant was denied notification prior to deduction in wages in July 2020. They accepted that the Complainant had omitted to secure sanction for annual leave but confirmed that he had made a genuine application.

They sought the application of Section 5(2) (b) of the Payment of Wages act where the omission by the employee   was meant to be accompanied   by one week’s prior notice of deduction. This had not occurred.

CA-00039807-002 Organisation of Working Time Act, 1997

The Union concluded that the Complainant had been denied annual leave to tend to his family responsibilities.

An application for leave was not met with a rejection as afforded by Collective Agreement.

The Company outlined that the Complainant had not reported for work on two days 19 and 20 July 2020. This constituted unapproved leave and warranted the commensurate deduction of wages and disciplinary action which followed. The warning had long since expired.

The Respondent read the written submission into the record drawing particular attention to Page 317 of Drivers Handbook 2017.

Applications for leave of absence must be submitted through the local manager, or duly authorised representative, a s far in advance as possible. An employee shall not absent himself until notified that such leave has been granted. Any employee who absents himself from duty without having obtained leave without submitting a medical certificate shall thereupon cease to be employed by the company.

They went on to draw from the contents of page 311

Annual Leave is granted with the consent of your manager/supervisor and is subject to work requirements

The Company did not accept that the Complainant had lodged a request for annual leave as stated as no record exists of the application and the Company could not be expected to sanction a request which was never received.

The Complainants roster was not altered to reflect annual leave. This ought to have been noticed by the Complainant.

The Respondent contended that the Complainant had acted and availed of unauthorised leave and the company could not reasonably be required to pay him for this absence. 

Evidence of Mr B, Depot Manager

Mr B outlined that the Rostering Officer, Mr A retired on 30 June 2020. Mr B subsumed his duties, and the position remains vacant.

He had some recall that he had encountered the Complainant on 30 June 2020 in relation to a request for time off. He recalled saying “throw it in and we will have a look at it “Mr B confirmed that he had not received the application for leave relied on by the complainant.

The Complainant returned to work on 22 July 2020, following a rest day on July 21. The Complainant had not appeared for his rostered duty on July 19/20. He understood that one bus run was curtailed as a direct consequence of the Complainants unauthorised absence from work.

Mr B explained that a “no show” automatically codifies within the National Rostering System. The Pay run is prepared on Mondays for finalisation on Tuesdays.

Mr B submitted that the Company deducted the wages in respect of the “no show” by the Complainant. This was prefaced by a formal investigation. He met with the Complainant on 23 July 2020 and confirmed that the complainant had not applied for the two days leave.

During cross examination, Mr B confirmed that he had not contemplated that this issue had in fact been a “systems failure “He denied that the application had been lost.

When questioned on whether the complainant had been informed of prospective pay deduction? Mr B replied that the “no show “had autogenerated a “no pay “action.

He explained that the “no show “would have been returned by a supervisor.

He disputed the complainants lack of knowledge of the prospective deduction as it had been discussed at the meeting of July 23.

The annual leave system is now in app form and has since been utilised successfully by the Complainant.

He recalled that the period associated with the absence had been a busy time at the Company.

By means of 10 December 2021 post hearing submission, the Company submitted a generic 39-hour week contract of employment, not visibly associated with the Complainant. The Company also confirmed that the complainant had availed of 25 annual leave day in the calendar year 2020.

The Respondent did not submit a record of the onsite investigation which prompted the events which led to this case.

CA-00039897-001 Payment of Wages Act, 1991

The Respondent submitted that the wages claimed by the complainant were not properly payable as he had not fulfilled his contracted working week when he availed of unauthorised annual leave over 19/20 July 2020.

CA-00039807-002 Organisation of Working Time Act, 1997

The Respondent submitted that the complainant had availed of unauthorised leave contrary to contract and protocol. The Respondent did respect the March 2019 Agreement but contended that the complainant had not applied for leave taken. The Company could not authorise leave which had not been applied for.

I have given careful consideration to both parties presentations in this case. I have considered the evidence adduced by affirmation. I have also had regard for the supplementary submissions from both parties. The parties disagreed on the record of annual leave taken by the Complainant. The Union reflected the annual leave year as commencing in April, while the Company Agreement reflects the calendar year .

I am mindful that the Union submitted similar claims under two separate pieces of Legislation.

 I learned from the parties that the parallel disciplinary sanction of 9 months was not advanced as a claim under the Industrial Relations Act. In my consideration of this case, I was struck by the Complainants clear and residual unease with this sanction and his dissatisfaction at the Company’s omission to notify him directly of the expiration. I am hopeful that both the Union and the Company will reflect on that void.

As stated previously, I gave the parties an opportunity to explore an informal resolution in the case, given the ongoing live employment. This did not yield an outcome and I will now conclude my findings and decision in the matter.

I took some time to acquaint myself with the annual leave system operational at the Company in July 2020. I fully accept that this has now crystallised into an Annual Leave Policy, 2021 not present in June 2020.

Annual leave is granted with the consent of your manager/supervisor and is subject to work requirements. The Company’s annual leave year runs from January to December.

 I note the presence of “An Agreement “accepted as operational from March 2019, by both parties, that requests for annual leave were meant to generate a response within 48 hours. Both parties had different and opposing views of the relevance of this Agreement in the instant case.

The Union understood that a failure to respond generated some scope to assume that acceptance could be implied in the absence of a rejection. The Company understood that approval of leave served as a mandatory requirement prior to any employee availing of the leave. This they said protected Business operations.

Both perspectives go to the root of this case.

I note that the Respondent has since formalised their position in the form in the generic contract of employment and Annual Leave Policy of 2021.

It is important for me to state the Law on the annual leave year as provided for in Section 2 of the Organisation of Working Time Act, 1997

“Leave Year means a year beginning on any 1st day of April “

Both parties in this case referred to the Company annual leave year as that of the Calendar year and the records submitted by both parties reflected this at hearing.

CA-00039897-001 Payment of Wages claim.

I have considered this claim as advanced at hearing. I have noted the respondent response.

The complainant is claiming two days pay for 19/20 July 2020. The pay slip exhibited does not reflect a stated deduction. Instead, the section on the pay slip reflects a 00.00 entry.

However, both parties agreed that the complainant had been deducted two days pay for 19 and 20 July 2020. I noted that there were several entries on the left-hand column of the pay slip and perhaps there is a simple answer as to why the €330.40 claimed was not specifically delineated as a deduction. The pay slip was submitted post hearing; therefore, I was unable to inquire further into this. I note that the Company was applying TWSS at this time .

The Complainant has submitted that the sum of €330.40 was properly payable to him as while he acknowledged that leave taken was in fact “unapproved “he had not consented to the deduction.

The Respondent submitted that the Complainant was contracted for a 39-hour week and on the week in question, he had not fulfilled the 39-hour requirement. They contended that the loose sheet of paper, of which the complainant had retained a copy, had not arrived as an application in the first place. They concluded that payment was not obligatory in these circumstances.

For my part, I found that the system of leave application probably worked very well during Mr A tenure as 99% of applications, it seems were met with success. I can understand that the complainant had a reasonable expectation that on passing his single sheet of application to a colleague that it would arrive at the intended destination and be approved.

However, the supervening event of Mr A’s retirement on 30 June 2020 seemed to disturb this system as the application appears not to have arrived at authorisation stage.

In Section 1 Payment of Wages Act, 1991, Wages are defined as:

Means any sums payable to the employee by the employer in connection with his employment, including

(a)    Any fee, bonus or commission, or any holiday, sick, or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise

In Sullivan v Dept of Education [1998] ELR 217, the EAT stated:

Whilst there is no specific definition of deduction in the Payment of Wages Act, guidance can be taken from the definition of wages which indicates that all sums to which an employee is properly entitled. If an employee does not receive what is properly payable to him from the outset, then this can amount to a deduction within the meaning of the 1991 Act

This prompted me to revisit the WRC application form, which described the Complainant as a 39-hour week worker. I requested sight of his particularised contract but received a generic version.

The first step in a claim for payment of wages rests on the maxim of whether the wages were properly payable. If the wages are found to be properly payable, then the rigours of Section 5 will apply.

It is not disputed that the Complainant was absent from the workplace 19 and 20 July 2020 and that that absence was unapproved. I must interpret this absence as unauthorised absence which interrupted and disturbed the party’s mutuality of obligation of 39 hrs for that week.

I understand that the Complainant had his stated reasons underpinning the absence, however, I must conclude that the Respondents motivation for applying the deduction on July 30, 2020, rested on the complainant’s absence from his rostered shifts on both of those days. I accept that the parties met to tease out the explanation for absence on July 23, 2020, and the complainant’s response was not accepted by the Respondent. The deduction followed 7 days later.

The local Agreement relied on by the Complainant did not cover authorisation of leave, just a system and timeline associated with acknowledgement of a request.

I have sympathy for the complainant and where he found himself in needing time off for a family occasion. However, the Respondent is not obliged to pay wages in the face of an unapproved absence which was not saved by the explanation on 23 July.

I have not identified a contravention of Section 5 of the Act and find that the claim is not well founded.

CA-00039807-002 Organisation of Working Time Act claim

 The Complainant submitted that he had not received his annual leave entitlement when he availed on two days annual leave, (unpaid) over 19 and 20 July 2020.

The parties differed on the record of annual leave taken by the Complainant during the calendar year 2020. The Complainant recorded 18 days taken at hearing and the Respondent furnished a post hearing record of 25 days taken which seems to have originated on a carryover of leave from 2019 of some 9 days.

For my part, I find that there was a carry over of leave exhibited on the spreadsheets. The Union exhibited 2019 records.

My jurisdiction rests solely on the statutory annual leave as provided for in Section 19 of the Act. The floating, service days referenced by the parties are outside my jurisdiction.

There is provision in Section 19 (1) (a) for recognition of annual leave during a period of illness on provision of a medical certificate. The instant case does not cover this eventuality.

The Working Time Directives 93/104 and 2003/88/ EC aimed to provide greater compatibility between work and family life, Maeve Regan, Employment Law 2nd edition The objective is to marry workers interests with legitimate business interests.

Working Time is defined in Article 2 of Directive 2003/88/EC as:

Any period during which the worker is working, at the employer’s disposal and carrying out his activities or duties in accordance with national laws and/or practice

This is the baseline for working time. Rest periods are not working time.

The time at which annual leave is taken, will in the first instance be a matter for the employer who is then obliged to take account of the employees need to reconcile work and family responsibilities with opportunities for rest.  

In the instant case, the complainant has sought payment for two days annual leave taken on 19 /20 July 2020. These days were not processed by agreement of the parties and for me at least, must be classified as unauthorised leave.

I note that the complainant has submitted that he sought approval of this leave. The Respondent has affirmed that the application was not received by the Company. The Complainant, emboldened by the March 2019 Agreement proceeded to take the leave. For my part, given that the Depot practice seems to reflect that each applicant retains a copy of A4 sheet submitted, I did not understand why the parties did not engage on this prior to July 19 as the roster was clearly agreed and not queried at this point.

However, I must find that the leave taken by the complainant constitutes an unauthorised absence from work and falls outside the parameters of Section 20 of the Act on times and pay for annual leave.

Times and pay for annual leave.

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,

(b) to the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than 1 month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, and (c) to the leave being granted —

(i) within the leave year to which it relates,

(ii) with the consent of the employee, within the period of 6 months after the end of that leave year, or

(iii) where the employee —

(I) is, due to illness, unable to take all or any part of his or her annual leave during that leave year or the period specified in subparagraph (ii), and

(II) has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer,

within the period of 15 months after the end of that leave year. 

(2) The pay in respect of an employee’s annual leave shall—

(a) be paid to the employee in advance of his or her taking the leave,

(b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate, and

(c) in a case in which board or lodging or, as the case may be, both board and lodging constitute part of the employee’s remuneration, include compensation, calculated at the prescribed rate, for any such board or lodging as will not be received by the employee whilst on annual leave.

(3) Nothing in this section shall prevent an employer and employee from entering into arrangements that are more favourable to the employee with regard to the times of, and the pay in respect of, his or her annual leave.

(4) In this section “normal weekly rate” means the normal weekly rate of the employee concerned pay determined in accordance with regulations made by the Minister for the purposes of this section.

I note that the Respondent has since visibly incorporated the provisions of section 20 in the exhibited generic contract from 2021

Annual leave is granted with the consent of your manager/supervisor and is subject to work requirements. The Company’s annual leave year runs from January to December.

I have considered the Labour Court case of Bus Eireann and SIPTU DWT 0016, which involved the annual leave taken by a part time School Bus Driver. The Labour Court upheld a Rights Commissioner decision where she found that consultation required under section 20(b) of the Act had taken place where leave was not permitted during the school year.

In the instant case, the parties had a joint understanding on how leave should be applied to the complainant in seasonal blocks coupled by some ad-hoc days. I noted that the complainants annual leave was applied mostly in singular days rather than seasonal blocks of time.

In truth, I found the management of annual leave to be quite random in this case. It seems to have improved through the utilisation of the App since that time.

I cannot identify a contravention of Section 19 of the Act on this occasion. Instead, I found an incomplete application for annual leave which ought to have prompted a remedial approach before the 19 and 20 July 2020 when leave was unilaterally taken.

I find that the claim is not well founded.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00039897-001

Section 6 of the Payment of Wages Act, 1991, requires that I make a decision in relation to the complaint in accordance with Section 5 of that Act.

I find the claim is not well founded.

CA-00039807-002

Section 27 Organisation of Working Time Act, 1997, requires that I make a decision in relation to the claim in accordance with Section 19 of that Act.

I find the claim is not well founded.

Unlawful deduction of Wages, Annual Leave