FULL RECOMMENDATION
SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES: LIMERICK CITY AND COUNTY COUNCIL (REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT AGENCY) - AND - SEAN CONSIDINE (REPRESENTED BY SIPTU) DIVISION:
SUBJECT: 1.Appeal Of Adjudication Officer Decision No ADJ-00030744, CA-00044400-002
Mr. Considine, ‘the Complainant’ is an Executive Engineer with Limerick City and County Council, ‘the Respondent’. In April 2020, the Complainant’s manager advised him that he was being transferred to a different work location. The Complainant raised a grievance under the Respondent’s Grievance Procedure. On 9 June 2020, the Complainant was removed from the payroll for not reporting to the new location. Following mediation, it was agreed that the Respondent would pay the Complainant’s wages from 17 August 2020. On 30 May 2021, the Complainant lodged a complaint with the Workplace Relations Commission, ‘WRC’, under the Organisation of Working Time Act, 1997, that public holidays were due to him in respect of the period spent by him on sick leave. An Adjudication Officer, ‘AO’, decided that the Complainant should be paid a sum of €1346.00 in lieu of the five days public holidays plus compensation of €500. The Complainant appealed to this Court. The Court’s attention was drawn to the fact of other proceedings involving the two parties. However, the Court is satisfied that it has jurisdiction to hear the matters before it and was not made aware of any awards made in any other forum based on the same facts. Summary of Complainant arguments. The Complainant lives in Shannon, Co. Clare and cares for his son who has considerable health issues. Because of the pandemic, in March/April 2020, the Complainant was granted leave to work from home. On 28 April 2020, the Complainant was told that his place of work was being transferred to Kilmallock/Cappamore. The Complainant protested against this move. He raised a formal grievance under the Grievance Procedure on 13 May 2020. While awaiting the processing of the grievance, the Respondent insisted that the Complainant relocate. However, the Respondent’s Grievance Procedure states that ‘During the course of the Grievance Procedure the status quo will be maintained and work will continue without interruption’. It goes on to state that ‘No industrial action of any form will be taken by either side during the course of the procedure’. Despite this, the Complainant was pressurised to relocate and was removed from the payroll on 9 June 2020 for refusing to re-locate. The union sought the maintenance of the status quo, as per the procedure, and sought that the Complainant be allowed to appeal the action taken against him. He was never afforded any appeal, although it was open to the Respondent to utilise its own Disciplinary Procedure. The Complainant also lodged a complaint under the Dignity at Work policy against his manager, Mr. Conor Culloo, on 18 June 2020. Also, on 18 June 2020, the Complainant’s grievance was heard. The Complainant continued to work from home until 1 July 2020 when his access to work systems was removed. After correspondence from the union to the Respondent, a process of mediation was agreed. The was an agreed outcome but, subsequently, the Complainant was told to report to Mr. Culloo, an instruction to which he took exception in view of his complaint. Following negotiations, the Respondent agreed to restore the Complainant to the payroll from 17 August 2020 and the non-payment from 9 June 2020 to 17 August 2020 was referred to the WRC. Further negotiations ensued but the Respondent kept ‘moving the goalposts’ by changing suggested locations. At a ‘back to work’ meeting on 26 November 2020, the Complainant was issued with an inappropriate list of duties. The Complainant was refused the right to take annual leave and was again removed from the payroll on 30 November 2020. He was certified sick for that period. There were no fair procedures. The Respondent breached their own procedures. The Complainant was denied natural justice. The Respondent failed to apply the Complainant’s entitlements under the Act. The AO Decision was that the Complainant was entitled to be paid for five days’ public holidays plus compensation of €500. In fact, in the cognisable period from 30 November 2020 to 30 May 2021, there were 6 public holidays. Summary of Respondent arguments In March/April 2020, following a review of engineering assignments, the Complainant was re-assigned to a different area and, similar to others being re-assigned, he was informed. The Complainant submitted a sick certificate on 29 April 2020. He raised a grievance on 17 May 2020 and submitted a further certificate for 18 to 22 May 2020. He declined the offer to have the grievance heard remotely. The Complainant was advised that he would be required to make the relevant move and that it would be noted that he had done so under protest. He continued to refuse the move despite further correspondence. On 9 June 2020, the Complainant was advised that he was being removed from the payroll for failing to carry out a legitimate instruction. In order to be paid a salary the Complainant is required to attend work. Following correspondence and engagement with the Complainant’s union representative, a mediation process was agreed and agreement on an outcome was signed by the Complainant on 28 October 2020. Subsequently, another role for the Complainant became available and it was agreed that he would fill that on 12 November 2020. On 11 November 2020, the Complainant declined the offer of assignment. On that basis, he was assigned back to the original intended transfer location. The mediator met with the Complainant, who indicated that he would now accept the post to which he had been assigned from 12 November 2020. That post was no longer available. The Complainant failed to attend for work. On 28 November 2020, the Complainant’ application for annual leave was refused as he had not attended for work. A sick certificate was received by the mediator. The Respondent advised the Complainant’s representative that he was in breach of the mediation agreement. Further correspondence ensued regarding requested annual leave. No progress was made. Subsequent correspondence took place in which the Complainant expressed a willingness to accept transfer, subject to not being required to work to Mr. Culloo. Following a WRC hearing in December 2021, further discussions took place and agreement was reached on the Complainant returning to his original workplace in a different role, which he did when medically certified as fit to do so from 20 April 2022. The Respondent is prepared to meet its requirements under the Act in respect of 6 public holidays in the period in question. The applicable law Organisation of Working Time Act, 1997. 21.—(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely— (a) a paid day off on that day, (b) a paid day off within a month of that day, (c) an additional day of annual leave, (d) an additional day’s pay: Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as ifparagraph (a)were omitted therefrom. (5)Subsection (1)shall not apply, as respects a particular public holiday, to an employee who is, other than on the commencement of this section, absent from work immediately before that public holiday in any of the cases specified in theThird Schedule. Third Schedule Each of the following are the cases mentioned insection 21(5)of absence by the employee concerned from work immediately before the relevant public holiday: 1. such an absence, in excess of 52 consecutive weeks, by reason of an injury sustained by the employee in an occupational accident (within the meaning of Chapter 10 of Part II of theSocial Welfare (Consolidation) Act, 1993), 2. such an absence, in excess of 26 consecutive weeks, by reason of an injury sustained by the employee in any accident (not being an accident referred to inparagraph 1) or by reason of any disease from which the employee suffers or suffered, 3. such an absence, in excess of 13 consecutive weeks, caused by any reason not referred to inparagraph 1or2but being an absence authorised by the employer, including a lay-off, 4. such an absence by reason of a strike in the business or industry in which the employee is employed. Deliberation. The Respondent agreed to apply the entitlement of the Complainant to public holidays, as it applies to staff on sick leave. This is an entitlement either to six additional days’ annual leave or payment for six additional days at the discretion of the employer. The Court so determines. Determination. The Decision of the Adjudication Officer is varied accordingly.
NOTE Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary. |
