INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
TEAM AER LINGUS
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Mr Flood
Employer Member: Mr McHenry
Worker Member: Mr O'Neill
1. Appeal of Rights Commissioner's Recommendation RC 212/97 concerning an appeal against disciplinary measures.
2. The worker concerned is employed by the Company as an aircraft maintenance assistant. He was rostered for night duty for one week from the 2nd of December, 1996 to the 6th of December, 1996. On the 28th of December, 1996 he applied for annual leave for the period for which he was rostered for night duty. His application was refused by management.
The worker was absent on sick leave for the week in question. On his return to work he was disciplined by the Company and given a four week suspension, later reduced to three weeks on appeal.
The Company's position is that following the Company's refusal to grant leave the worker stated he would go sick and subsequently refused to accept a letter from the Company confirming its decision.
The matter was referred to a Rights Commissioner for investigation and recommendation. On the 11th of September, 1997 the Rights Commissioner recommended as follows:-
"In the circumstances, I recommend that the period of suspension should be reduced to one week, and in the event of no further problems arising, the Company should sympathetically consider any request by the worker to return to shift work after a period of one year in his current position".
The worker was named in the Recommendation.
The Rights Commissioner's Recommendation was appealed by the Union to the Labour Court on the 29th of September, 1997 under Section 13(9) of the Industrial Relations Act, 1969. The Labour Court heard the appeal on the 20th of January, 1998.
3. 1. In the past, during periods of illness, the worker availed of annual leave in order to maintain his good attendance record.
2. The worker's request for annual leave was made in an effort to preserve his good record and to maximise the Company's ability to provide cover in his absence. His decision to take sick leave was based on necessity and this was verified by his medical certificate.
3. On appeal the worker's suspension was reduced to three weeks, but a further discipline was imposed by transferring him from shift duties to day work resulting in a substantial loss of earnings.
4. The worker has been unfairly treated especially by the increased penalty which would result from his transfer. He has been employed by Aer Lingus for twenty years and his attendance and work records are excellent. If the worker had chosen to report sick on the 2nd of December, 1996 instead of trying to avail of annual leave this situation would not have arisen.
4. 1. The previous occasion on which the worker was rostered for night duty was in January 1996 and he requested and was granted leave on that occasion.
2. He stated publicly that if he was not granted leave he would "go sick". He was not suffering, according to the company doctor, from the illness stated on his medical certificate. It is unacceptable that an employee would state publicly that he would abuse the company sick leave scheme particularly in circumstances where his request for leave was not granted.
3. Every effort was made by Management to address the situation. However, the worker was not receptive to this. His behaviour was unacceptable as evidenced by his refusal to accept a letter from management.
4. The Company must have the right to determine when employees avail of annual leave and indeed it endeavours to grant leave to suit employees given the operational demands at the time.
5. In all of the circumstances the worker was treated fairly and no less favourably than any other employee in the company. The Company feels that the Rights Commissioner's recommendation may have been quite lenient. However, out of respect for the office and to put this matter behind it the Company is prepared to accept it. It should be noted that the Rights Commissioner's Recommendation has not been put into effect.
The Court having considered the written and oral submissions made by the parties finds the Rights Commissioner's Recommendation not unreasonable in the circumstances of this case.
The Court therefore upholds the Rights Commissioner's Recommendation and rejects the appeal.
Signed on behalf of the Labour Court
30th January, 1998______________________
Enquiries concerning this Decision should be addressed to Fran Brennan, Court Secretary.