ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: IR - SC - 00001493
| Worker | Employer |
Anonymised Parties | A Driver | A Transport Company |
Representatives | SIPTU Official | Employee Relations Manager |
Dispute:
Act | Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | IR - SC - 00001493 | 29/06/2023 |
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Date of Hearing: 13/02/2024
Procedure:
In accordance with Section 13 of the Industrial Relations Act 1969 (as amended) following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute.
Background:
The Worker applied for one day’s annual leave and was deducted a day’s pay as he did not apply for the leave through an App introduced by the Employer. This had a knock on affect when he lost a bonus voucher for good attendance.
Summary of Workers Case:
The Worker applied for one day’s annual leave on 29th January 2023, giving 4 weeks’ notice and filled out the annual leave form as he had done since joining the company. He was told by the Inspector that cover would be arranged. Subsequently he was subjected to a disciplinary process, given a warning and one day’s pay was deducted for his non-attendance. He unsuccessfully appealed the sanction.
Throughout the process the Worker informed the company that he was unable to process his requests for annual leave as he did not have a smart phone. He requested the company to provide the technology, but this was refused. In the appeal decision, the Manager referred him to the “2022 pay deal, which includes provision for staff to apply for annual leave using advancing technology which was agreed between the Company and the Trade Unions. This includes provision for staff utilising [the company system] for all annual leave”.
It is contended that the Worker correctly filled out the form for annual leave in accordance with the annual leave policy. The Company did not provide the technology for the Worker to access the annual leave App. and the disciplinary action and deduction from his wages of one day’s pay was unwarranted. The Worker seeks restoration of the day’s pay and the restoration of the voucher. It is also requested that Company to provide him with the technology to accede to their requirement in relation to application for annual leave or provide an alternative for claiming annual leave.
Summary of Employer’s Case:
In January the Worker made a paper application for annual leave which he submitted to his Supervisor. It was returned to him and he was told to submit it on the App (“A) which is used for annual leave and payslip purposes. He did not make any subsequent application and was absent from work on 19th January. He was deemed to be a “no show” which is a common terms for Drivers who do not turn up for work, and disciplinary procedures commenced resulting in him being given a warning. It should be noted that he is one of a number of Drivers who refuse to use their own mobile phones for the Company App for applying for annual leave.
In 2019 the new system for applying for and recording annual leave was trialled and was broadly welcomed. As a result over 90% of staff use it without difficulty. Prior to this applications and notices about annual leave were paper based, and a better form of communication was sought in respect of usage of noticeboards to impart information. The Company was also conscious of GDPR obligations. Since 2019 a group of around 300 employees mainly within the Driver and Garage areas have consistently refused to use the App stating that it was not agreed with the Unions and they were not obliged to use their personal devices.
In 2017 the Labour Court issued LCR 21438 which was a blueprint for survival following some very difficult economic conditions for the Company. One of the key elements was “Integration of advancing technology as required”.
In 2019 the Labour Court recommended new pay increases and additional staff flexibilities including “new technology including the use of telematics as per earlier Labour Court Recommendation”.
As a result of continuing engagement, the 2022-2024 pay deal agreed between the Company and the Unions in September 2022 under the auspices of the WRC specifically provided that staff would use “advancing technology” which was agreed by the parties to modernise the following
Accessing Payslips
Making annual leave applications
Notifying sick leave
Garage Automation Project (moving to paperless garages)
The Employer stated that while there are a number of employees refusing to use their personal phones, the introduction of Garage Automation might solve the situation where technological devices may be installed in garages.
At the pay deal negotiations in September the Unions specifically asked the Company if devices would be supplied to staff and the Company replied that they would not, and staff would have to use their own devices. The pay deal was agreed on this explicit understanding. There was a lead in payment of €1,000. The Company has received legal advice that the issuing of payslips via the App is lawful. WRC cases in relation to the use of personal smart phones have found that it is reasonable to expect that employees can use their smartphones as a “modern communication device”, and “making a principle out of not using a personal device for work purposes has somewhat outdated resonances” (ADJ-00029982). In ADJ-00029729, in a similar case to this, the Adjudication Officer found that using the App for annual leave was more preferable that the paper-based system. It is submitted that the Worker was correctly disciplined for unauthorised absence from work, and his continued refusal, along with others to use personal devices is unreasonable.
Conclusions:
I note that the 2022-2024 Pay deal specifically contains the agreement to use advancing technology for making annual leave applications. I note the potential to resolve the matters in the near future when the Garage Automation Project is completed. I note the continued refusal to use personal phones in this case pertains to many others in the employment. To make a recommendation in this case would likely affect numbers of employees in the employment. It is well established that the Industrial Relations Act 1969 prohibits the investigation of disputes that relate to a body of workers. In LCR22904 CD 23/137 the Labour Court stated that it did not have jurisdiction to interpret circulars in circumstances that have national implications. In that case, the Court overturned a recommendation made by an Adjudication Officer. In this instant case, I find that as the dispute has national implications, I am not in a position to make a recommendation on the matter. |
Recommendation:
As the Industrial Relations Act 1969 prohibits investigation of disputes that relate to a body of workers, I am not in a position to make a recommendation.
Dated: 26/03/2024
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Key Words:
Industrial Relations Act, body of workers, no jurisdiction |