ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: IR - SC - 00001750
| Worker | Employer |
Anonymised Parties | A Driver | A Transport Company |
Representatives | Union Official | HR 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 - 00001750 | 07/09/2023 |
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Date of Hearing: 26/08/2024
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 is in dispute with the Employer over a disciplinary sanction applied when he was absent to attend a family funeral and he did not use the Company App to apply for the leave.
Summary of Workers Case:
The Worker is employed as a professional bus driver for more than 25 years. Prior to this event he has never been in a Disciplinary Hearing. He is aggrieved to have a sanction of warning issued against him in regards to an alleged no show on Friday 3rd February 2023.
The dispute concerns the need for the Worker to take 1 day emergency annual leave for a family funeral and the fact that he was disciplined for not using the App which the Company was insisting he use.
In relation to the absence in question, the Worker tried contacting the rostering supervisor late on Wednesday evening the 1st February with no success. At approximately 17.20hrs the roster supervisor called back. The Worker explained he has a family funeral on Friday 3rd and badly needed an emergency annual leave. The roster supervisor said “no problem” then withdrew it saying you will have to apply on the app. The issue went back and forth for a while with the Worker explaining he's not on the app and that he hasn't got the app on his phone.
The conversation finished with the Worker confirming he will be attending the funeral.
After finishing his shift on Thursday 2nd February the Worker called in to see duty supervisor Mr G to check if the duty was covered for the following morning. The supervisor informed him he was still marked up for work. He informed the supervisor he has a family funeral in the morning and that he would not be in. The Supervisor said he would leave a note for the morning supervisor as he would be off tomorrow himself. The confirmation that a note would be left for the duty supervisor to cover the shift in the morning was understood to be confirmation the duty would be covered and that he was off.
In relation to the Company’s point regarding a recent pay deal, the Worker said he fully accepts the pay agreement and is willing to log onto the app but he is not willing to use his own private phone. He said he is willing to use company technology in a fixed location or a hand held device supplied by the company.
A document from the notice board clearly stating only emergency A/Ls would be accepted over the phone was handed to the Company during the course of the appeal and the Union made the point that although the document was from the 20th December 2021 the document was never replaced or countermanded.
Accounts of the disciplinary hearings were submitted. It was submitted that the Union told the Company that the Worker in this case was being treated differently to his co-worker’s in another depot. No satisfactory response was given.
On Monday 17th July 2023 an appeal was held. All the same arguments and issues were raised copies of the same documents in defence of the Driver were handed over with particular attention on how we could have two different systems for annual leave applications in two depots in the same region. Ultimately our regional manager found against the driver.
The Worker applied for an emergency annual leave by phone in-line long standing custom and practice. The company’s instruction that all annual leave must be applied for via the company app by use of one's private phone has never been agreed to. The company is in error as there is no mention of emergency annual leave in the pay agreement document. The company is in error as there is no mention of emergency annual leave in its annual leave policy. The company is in error it cannot force an employee to use his private phone for a company app. The roster supervisor's yes to the call before he withdrew it proves cover was available.
Summary of Employer’s Case:
The issue concerns a complaint from the Worker related to his refusal to use a company app to apply for annual leave. He is one of a number of drivers who have continued to refuse to use new technology to apply for annual leave. Since 2019, a group of circa 300 staff, mainly within driver and garage employees, have consistently refused to use the app for various reasons, including that it was not agreed with the unions or that they are not obliged to use their own personal devices.
The issue of employees using their own personal devices to apply for annual leave was agreed between the company and the unions as part of collective negotiations for the 2022 pay deal, which was agreed under the auspices of the WRC. During those negotiations, the unions specifically asked if the company would provide devices for staff to access their payslips and apply for annual leave, which the pay deal expressly provided. The company confirmed it would not and the payments made under the pay deal were for staff cooperation with using their own personal devices to access payslips and apply for annual leave. The pay deal was agreed on this basis. In June 2023, two employees raised precisely similar claims before the WRC, which were heard in February 2024, ADJ-00046486 refers. Both claims were taken under S.13 of the Industrial Relations Act 1969 and related to the drivers involved claiming that they were not required to use their mobile phones to access the company app. In her decision, the Adjudicator stated ‘it is well established that the Industrial Relations Act 1969 prohibits the investigation of disputes that relate to a body of workers’. Further, she stated ‘As the Industrial relations Act prohibits investigation of disputes that relate to a body of workers, I am not in a position to make a recommendation’. Given this issue clearly affects a collective group within Bus Eireann, it is not appropriate for this matter to be addressed as an individual claim before an Adjudication Officer.
Notwithstanding the decision of the Adjudication Officer above, a summary of the Company’s position is as follows:
The 2022 pay deal specifically provides that staff would use “Advancing Technology” to apply for annual leave. This was expressly confirmed prior to agreement at the WRC in September 2022 to mean that staff would use their own devices to access their payslips and apply for annual leave on the Company App.
Using the app to apply for annual leave allows the company to track and respond to applications promptly which is to the benefit of staff.
During two separate conversations with the Supervisors, the Worker was advised that his verbal request was not accepted, and that he must apply for any leave by using the app. He failed to do so and was, therefore, on unauthorised leave on 03rd February 2023 for which he was correctly disciplined.
The continued refusal of the Worker (and many others) to use their own personal devices is entirely unreasonable.
Conclusions:
In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties. The issue is clearly a dispute concerning possibly a large number of workers in the Company refusing to use their personal mobile phones to access the App for applying for leave and other issues. I note the Union has requested conciliation on the issue and this is to be welcomed and hopefully will resolve the matter between the Employer and the relevant group of Workers. In the meantime, piecemeal recommendations are not appropriate in the situation where a body of workers is concerned. 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. For the reason that any recommendation I may make on the issue may have National implications, I am not making a recommendation on the substantive issue here. However, I find that the imposition of a penalty for his absence on the day in question, given that a family funeral was involved, was too harsh. I recommend that on this net point only, the Employer should expunge the warning from the Worker’s file. |
Recommendation:
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.
I recommend that on the net point of the disciplinary sanction only, the Employer should expunge the warning from the Worker’s file.
Dated: 11/10/2024
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Key Words:
Industrial Relations dispute, Leave application on Company App |