INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
AN BORD ALTRANAIS
(REPRESENTED BY THE HEALTH SERVICES EMPLOYERS AGENCY)
- AND -
IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION
Chairman: Mr Flood
Employer Member: Mr Pierce
Worker Member: Mr Rorke
1. Appeal of Rights Commissioner's recommendation No. IR228/98.
2. The worker concerned commenced employment with An Bord Altranais on the 1st of September, 1998 as finance officer (Grade 7 post). In November, 1991 she was granted a career break for three years. In October, 1994 she indicated to the Board that she wished to return to work but the Board did not have a suitable vacancy.
In August, 1995 she was offered a return to work in a Grade 5 post and she resumed work on that basis on the 2nd of October, 1995. The Union argues that the worker returned to work on the understanding that it was a temporary arrangement until a Grade 7 post became available. It claims that the Board, having granted the worker a career break, filled the position on a permanent basis, in contravention of Department of Health Circulars.
The dispute was referred to a Rights Commissioner for investigation and recommendation. The Rights Commissioner's findings and recommendation are as follows:-
"I note that this dispute was first raised in December, 1997.
I believe that An Bord made a choice in October, 1991 to
grant the worker the request break. That choice carried an
obligation which it has not delivered. I consider that the
worker is entitled to the remuneration and benefits of a Grade
VII post with effect from December, 1997.
I recommend that the An Bord offers the worker and that she
accepts the remuneration and benefits appropriate to a
Grade VII post with effect from December, 1997."
The worker was named in the recommendation.
The Rights Commissioner's recommendation was appealed by both parties to the Labour Court under Section 13(9) of the Industrial Relations Act, 1969. The Labour Court heard the appeals on the 2nd of November, 1998.
3. 1. The Board filled the position of finance officer on a permanent basis in contravention of Department of Health circulars governing the career break scheme.
2. The Board in its letter of the 24th of October, 1991 indicated approval for the career break "in accordance with Department of Health Circulars on Career Breaks".
3. The worker had a right to expect that the terms of the scheme to which the Chief Executive had directed her attention by letter would ensure that her job would be available to her at the end of her career break.
4. The Union respectfully requests the Court to recommend that An Bord Altranais make provision for the following:-
(1) Payment at Grade 7 rate to the worker with immediate effect, taking into account the incremental progression on that scale which would have occurred under normal circumstances.
(2) Payment of loss of earnings with effect from the 14th of November, 1994 - to the date she should have returned to work as a Grade VII - to include both the period before she actually returned, the 14th of November, 1994 to the 1st of October, 1995, and the period from the 2nd of October, 1995 to date during which she has been paid at the lower rate of Grade 5.
(3) Adjustment of annual leave, including retrospection, to take account of the lower annual leave available at Grade 5 level since her return.
(4) The restoration of service for pension purposes for the period of the 14th of November, 1994 to the 1st of October, 1995. This service was lost to her as a result of the delay in her return to work. It would be subject to payment by the worker of arrears of contributions.
(5) Payment of £1,000 in compensation for distress and anxiety caused by the downgrading forced on her and by her loss of status as part of the management team within the organisation.
4. 1. Because of the nature of the post and its position within the structure of An Bord Altranais, the worker's request for a career break had to be refused. The matter was the subject of discussions. At one stage, the worker submitted her resignation and indicated that she would be pursuing a claim for constructive dismissal.
2. Due to the nature of the post, the vacancy was filled on a permanent basis. This was done in the full knowledge of all concerned and no objection was raised by the Union. It was not feasible to fill the post on an acting basis.
3. The worker resumed duty on the 2nd of October, 1995 at Grade 5 level. As no vacancy existed at Grade 7 level within An Bord Altranais, efforts were made to secure a post at this level within the wider health sector. This unfortunately failed and was subsequently not pursued.
4. It should be noted that following the worker's resumption on the 2nd of October, 1995 she did not raise this issue either locally or to her Trade Union until late 1997, a lapse of two years. It is the management's contention that the value of the work carried out by the worker during that period was that of a Grade 5 and that it would be inappropriate that this work be now retrospectively valued at Grade 7 level.
5. Management had difficulty with the Rights Commissioner's recommendation under two headings, i.e., the circumstances under which the worker was given a career break and its practical implications. Regarding the former, the worker was given a career break in good faith. Likewise, the post of finance officer was filled in good faith.
6. The implementation of the recommendation poses real practical problems. Simply stated, the post she vacated, at her own request, has been filled and there are no alternative posts at Grade 7 level. Management has indicated, both prior to and subsequent to the issue of the recommendation, that it was prepared to be flexible regarding the worker's position. However, the Union chose not to pursue this.
The Court is satisfied that the employer initially refused a request for a career break because of the nature of the post and its position within the structure of An Bord Altranais.
It is less clear what the understanding/agreement was on the subsequent change of position resulting in the granting of a career break.
The Union and the employee claim there was no understanding that the post would be filled on a permanent basis. The employer is adamant that this was his understanding and that this was known to all concerned.
Given this conflict, the Court has considered the letter sent to the employee dated the 24th of October, 1991 and having done so agrees with the Rights Commissioner’s findings that“An Bord Altranais made a choice in October, 1991 to grant the worker the request break. That choice carried an obligation which it has not delivered”.
Having considered the background to this case and all the relevant matters, including the letter of the 24th of October, 1991, the Court believes that the claimant should be paid the remuneration and benefits appropriate to a Grade 7 post with effect from October, 1995, on a personal basis.
The Court, therefore, upholds the appeal of the employee and rejects the appeal of the employer. The Rights Commissioner's recommendation should be ammended as above.
The Court so decides.
Signed on behalf of the Labour Court
6th January, 1999______________________
Enquiries concerning this Decision should be addressed to Fran Brennan, Court Secretary.