Complainant

Respondent

Parties

Robert  Anderson

Bus Eireann

Representatives

National Bus and Rail Union

Head of Employee Relations, Bus Eireann

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00068788-001

22/01/2025

The complainant, Robert Anderson, is a bus driver with the respondent.  He alleges that the respondent, Bus Eireann was in breach of the Organisation of Working Time Act insofar as the company did not consider his entitlements under the Act when determining when his annual leave should be taken.

Evidence was given under oath/affirmation by the complainant, Mr Anderson and on behalf of the respondent by Mr Fintan Boyle, Supervisor, Mr Kieran McShea, Service Delivery Manager and Ms Siobhan McAndrew, People Operations Manager.  All evidence was subject to cross examination.

All submissions received were considered by me in reaching my decision.

The Complainant is a bus driver with the respondent since approximately November 2004. He is based in the Donegal Depot. An issue arose between the complainant and the respondent in 2024 regarding the method of application for annual leave. Following the 2022 intercompany/Trade Union pay agreement which included a clause, among others "to advancing technology to   annual leave applications".

The complainant continued to submit the paper-based applications for annual leave owing to issues pertaining to interpretation of the pay deal, specifically, the use of one's personal phone to download and use the company App. The complainant sought approximately 18 days holidays via the paper-based application method, and was facilitated by the respondent by being removed from his rostered duty but not paid.

The complainant is currently under threat of a final warning for aforementioned attempted annual leave (under appeal).

On 7th November 2024, the complainant received correspondence from the Service Delivery Manager in the Northwest informing him that he was unilaterally being placed on 16 days annual leave (the complainant's normal working pattern is a 4-day week) from 7th December 2024 until 6th January 2025.

On 25th November 2024 NBRU Assistant General Secretary responded to the Service Delivery Manager outlining the fact that "It is abundantly clear that no consideration was given to Mr. Anderson's needs pertaining to his ability to reconcile work and any family responsibilities, or his opportunities for rest and recreation. In such circumstances Bus Eireann have contravened Mr. Anderson's Statutory Rights and have contravened the Act”.

There was no response from local management to the correspondence from the NBRU dated 25th November 2024, so after a reasonable period the NBRU Assistant General Secretary wrote to senior HR Manager in Bus Éireann, on 13th December 2024, once again reiterating Bus Éireann obligations under the Act, pointing out the fact that issuing a diktat in writing does not constitute consultation and seeking the complainant to be restored to his normal roster to facilitate the consultation that was absent from the process heretofore.

The HR Department responded on 16th December 2024 essentially stating that the correspondence issued to the complainant on 07th November 2024 constituted consultations and that Bus Éireann are fully compliant with section 20 of the Act.

Section 20 of the Organisation of Working Time Act 1997 states the following:"

(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 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 within the leave year to which it relates or, with the consent of the employee, within the 6 months thereafter.

It is abundantly clear the obligations placed upon the respondent by the provisions of the Act were not met. The complainant's wife is a nurse and was rostered to work throughout the period that the complainant was unilaterally placed on annual leave. This most certainly denied the complainant any opportunity to reconcile his work and family commitments.

Additionally, the fact that the complainant's wife was working denied him the ability to rest, relax or take a holiday in the company of his wife. It must be stressed that the complainant, through his Trade Union Official, offered to engage with regard to alternative dates but this request was ignored and denied. In this regard, the complainant was treated less favourably that his colleagues in other depots.

In ADJ-00049616, the Adjudication Officer quoted case "C684/16, Max-Planck-Gesellschaft v Shimizu.   The Court of Justice said employers were obliged to ensure that workers were in a position to exercise their right to take annual leave. This was to be done by encouraging workers, formally if need be, to do so, while informing them, accurately and in good time so as to ensure that that leave is still capable of ensuring for them the rest and relaxation to which it is supposed to contribute. "

In that case, the Adjudication Officer found that "no evidence has been provided by the Respondent of consultation with the Complainant regarding his three applications for annual leave and facilitating the Complainant taking his leave within the leave year. "

The complainant has become aware of comparator colleagues in similar circumstances who have not been treated in the severe manner that he was.

Comparator 1 from the Waterford Depot received correspondence dated 22nd October 2024, , similar to the complainant's letter dated 7th November 2024, with the stark difference that correspondence offered the comparator a choice of dates.

Without prejudice to the optional dates that were provided (unlike the complainant's case), the comparator emailed the manager on 28th October 2025 (not through the company App) and requested a number of dates that he required.

The respondent's manager facilitated the comparator with his requested dates and confirmed them via correspondence to the comparator on 1st November 2024. The complainant looked for the same facility but was denied. Such a disparity in treatment is disappointing. It is also worth noting that comparator 1 was not disciplined for failing to utilise the company App, unlike the complainant.

Comparator 1, in his email dated 28th October 2024, also made representation on behalf of another driver who was not on the respondent's App. This leave request was also facilitated by the respondents.

Comparator 2 confirmed that he was facilitated in this manner on three occasions.

The complainant's work environment is not a nice place for him. He utilised the agreed procedures thinking he would get some modicum of protection, but he has been left high and dry.

Whilst it is clear from section 20 that the decision to grant annual leave is one for the employer to make and provides that regard should be had to work requirements, the section specifically refers to the need for the employee to reconcile work and family life, and to have the opportunity for rest and recreation. This was not done in the complainant's case the unilateral decision by the respondents' managers to allocate an unnegotiated 16 days to the complainant without proper consultation, and the complete absence of any input from the complainant constitutes a breach of the Act.

The complainant is seeking the return of his 16 days annual leave so that he can avail himself of his statutory time off in a manner that would allow him to reconcile his work and family responsibilities and provide him with an opportunity for rest and recreation with his wife.

The complainant is also seeking compensation to account for the consequences of the breach of the Act and serve as a deterrent against future breaches.

The complainant is employed as a bus driver since 2004 and is based in Donegal.  In 2019 Bus Eireann (the respondent) launched on online app Workvivo (the App) on a pilot basis.  The App moved much of normal communications from notice boards onto the App which was available to everyone at the touch of a button and was subsequently rolled out to all depots and staff.

The role of the App was consistent with a Labour Court recommendation of 2017 which provided for advancing technology.  This labour court decision was accepted by the unions.  The role of the App was also consistent with a second Labour Court recommendation in 2019 which was rejected by the unions.  Since then there has been considerable resistance to using the App and any agreement has been slow and incremental.

As a result, in 2022 the company and the unions agreed a 3 year pay deal which included a provision that all grades of staff would utilise advancing technology to modernise work practices which included ’making annual leave applications’.  Advancing Technology was understood by all to mean the App.  Prior to concluding this pay the unions had asked if the company would provide mobile phone devices to all staff to complete the tasks on the App.  The company rejected this request.

A number of staff processed individual complaints to the WRC and in each case the AO declined to hear the cases given the collective impact of any of the claims made.

The complainant has continued to resist applying for annual leave using the APP.  He has continued to submit paper applications for leave which were returned to him on each occasion and therefore none of the periods of leave were approved.  The complainant absented himself from work on the dates he had applied for, and these were not paid by the company.  In 2024 there were 8 such instances.

As the year progressed management was conscious that the complainant had a balance of leave to take before the end of the year. The company therefore wrote to him on 7th November 2024 notifying him that in accordance with S.20(1)(b) of the OWT he would be placed on leave from 7th December to 4th January.  In the same letter the company stated ‘if you prefer to apply for leave using the agreed means i.e. the App we can of course consider alternative dates for you to take your full leave entitlement including possibly considering your latest application from 20th to 28th November’.

The union wrote to the company stating that this did not comply with the OWT but did not suggest any other preferred dates.  The company replied detailing what had occurred during the year in relation to the complainant not using the APP and stated that they had no option but to place the complainant on leave on the dates already communicated.

The OWA states;

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 (iv) to the leave being granted within the leave year to which it relates or, with the consent of the employee, ,within the 6 months thereafter.

In March 2025 the complainant submitted a further paper application for leave and included in this his App password and details asking the company to make the application for him.  The company replied asking him to make the applications through the App and told him that the company hoped to provide personal devises to all driver staff in 2025.  Subsequently he made the application using the App.

Given the complexity of rostering 2000 drivers across the country for annual leave in most locations this is done by a roster at the start of each year.  The system in Donegal does not allocate annual leave in this manner but rather on a first come basis and based on the needs of the business.

The company policy clearly specifies the requirement for all drivers to apply for annual leave using the APP.

While there is an industrial relations context in the background to this complaint my sole duty is to consider whether or not there had been a breach of the Organisation of Working Time Act in relation to the taking of annual leave.  That act in Section 20 states;

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,

This section of the Act clearly gives the authority to the employer to determine when leave is to be taken.  The employer has the duty to consider work requirements and the employee’s needs and opportunities to take leave.  The latter obligation can only be met through a process of consultation with the employee. It is the adequacy of this consultation that is at issue.

In large organisations considerations regarding the taking of annual leave need to be coordinated and systematic.  There needs to be a system which can apply equitably to all employees.  Of necessity this cannot be based on random criteria in each individual case but rather based on criteria – including the method of applying for annual leave – which applies to all.  It is not unusual in organisations with high union density that agreements are reached between the union and the employer which cover all employees whether or nor they are union members.  It is clear that the system put in place in this instance was by agreement with the union and intended to cover all aspects of the taking of annual leave.  However, it is also clear that there was some disagreement regarding the provision of mobile devices by the company to individual employees to use the App.  In evidence at the hearing the respondent stated that there were no company supplied alternatives to the individual employee other than to use the individual’s own mobile phone.  I understand from evidence that this situation has now been resolved and such devices are to be supplied.

The complainant in this instance would not agree to use the App to apply for annual leave because he was not provided with a mobile device to use the said App.  However, it is of note that on the 8 occasions in 2024 he applied in the traditional method – not using the App – he took the time off albeit without pay.  Presumably, these times were chosen by the complainant to reconcile work and any family responsibilities and were at times that suited him and the respondent.

The company notified the complainant on 7th November of the requirement to take approximately 4 weeks leave in order to ensure that his leave was taken within the leave year.  Given the position the company had taken in relation to the earlier absences i.e. that these were not annual leave, I believe the company should have acted earlier and informed the complainant that he was accumulating annual leave that would have to be taken within the annual leave year.  Leaving it until 7th November meant that there would be little room for modification of the period stipulated by the company in their letter. While some consultation took place this was in my view inadequate.  However, it is also relevant that no alternative dates were suggested by or on behalf of the complainant. 

In the circumstances where there was a lack of acceptance by some of the workforce that the agreement on technology applied to the taking of annual leave, in the absence of being provided with mobile phones, it is understandable that this aspect of the system for applying for annual leave did not function efficiently.  In addition, the fact that different systems in relation to determining priority in approving annual leave could reinforce the belief among some employees that the use of the App was not a fundamental requirement.  In these circumstances I conclude that the insistence by the respondent on the use of the App only, to apply for annual leave did not adequately meet the duty to consult with the complainant on the appropriate times to take annual leave.

In determining the appropriate compensation I have considered the complainant’s actions in the issue.  I also note that he availed of time off at the times that suited him earlier in the year.  Section 3 of the Act states;

 (3) A decision of a rights commissioner under subsection (2) shall do one or more of the following:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment…

This is not a complaint under the IR act and therefore I have no role in making any recommendation regarding the disciplinary process alluded to by both parties at the hearing.  I do note however, that going forward the issue at the core of this dispute, the provision of mobile devices, has been settled and would have thought It should be possible for both parties to put this matter behind them therefore and move forward with renewed trust and mutual respect.

The complaint is well-founded and I order the respondent to pay the complainant €2,000 in compensation which I believe to be just and equitable.

The complaint is well-founded and I order the respondent to pay the complainant €2,000 in compensation

Consultation and annual leave