FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE SOUTH - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Appeal of Recommendation of a Rights Commissioner r-0095058-ir-10/TB
BACKGROUND:
2. The Claimant commenced employment as a Hospital Attendant in the Sacred Heart Hospital Carlow in January 2001. On 11th December 2008 the Claimant requested a career break of "at least one year" from her Line Manager. There were pressing reasons that made it imperative that she should immediately relocate abroad and in order to facilitate her a number of alternative leave types were granted to her in the meantime before her request was sanctioned (due to staff shortages her request was not granted until 23rd March 2009). As the Claimant had already left the country the relevant documentation could not be completed in the normal manner. In December 2009 the Claimant gave the required three months' notice of her intention to return to work on 23rd March, 2010. As there were no vacancies in her grade at that time she was informed that she may be required to wait for up to twelve months for a post to become available. The Claimant complains that she was never informed of the terms of the Career Break Scheme. In particular the clause regarding the possible twelve-month waiting period before resuming employment and as a direct result of which she suffered a loss of earnings for which she is seeking redress. Management contend that the Claimant was made fully aware of all the terms of the career break scheme at the meeting with her Line Manager on 14th January 2009 and view this as a cost-increasing claim.
The issue involves a claim by a Worker. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 27th January 2011, the Rights Commissioner issued his Recommendation as follows:-
"Based on the discussions at the hearing and on the fact that the claimant was not properly advised of the rules prior to going on the break I recommend that she should be paid €1,000 in compensation."
On the 21st February, 2011 the Worker appealed the Rights Commissioners Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act 1969. A Labour Court hearing took place on the 27th March, 2012.
UNION'S ARGUMENTS:
3. 1. The Worker was not given the application form at the time she applied for the career break which sets out the rules of the Scheme. As a consequence of not being allowed to resume immediate employment she suffered a significant financial loss not of her making.
2. The award offered by the Rights Commissioner does not adequately reflect the financial loss incurred due to the delay before being allowed to resume her post.
EMPLOYER'S ARGUMENTS:
4. 1. On 11th December 2008 the Claimant requested a career break for at least one year from her post in the Sacred Heart Hospital due to pressing personal reasons. Her request was granted with effect from 23rd March 2009 for a period of twelve months.
2. As the Claimant had already left the country. The normal practice of completing all the relevant documentation forms had to be set aside and this was a compassionate gesture by Management.
DECISION:
This is an appeal by the Union on behalf of the Claimant of a Rights Commissioner’s Recommendation which found against her claim for loss of earnings incurred while she waited to be appointed to a position following her career break. The Right’s Commissioner recommended that the Claimant should be paid the sum of €1,000 as the Employer failed to properly advise her of the rules of the Scheme prior to going on the career break. There was no appeal by the Employer.
The Union submitted to the Court that the Claimant should have been appointed to a position on her return from a career break as she had complied with the three months’ notice requirement and she had not been informed that it could take up to twelve months before taking up duty again. It submitted that while she had made some attempts to mitigate her losses the Claimant had incurred a loss of €8,000 and sought compensation in that amount.
The Employer stated that under the terms of the Career Break Scheme applicable in the HSE, staff may have to wait up to twelve months before being taking up duty again after the termination of the career break as it will depend on finding a suitable approved post. In this case the Claimant had to wait from 23rdMarch 2010 until 6thDecember 2010, a period of less than twelve months.
Having considered the submissions of both sides the Court notes that there is no suggestion that the Claimant did not receive the Staff Handbook on her recruitment which included details of the Career Break Scheme, however, due to the immediacy of the Claimant’s requirement for a career break in 2009, the Employer did not have the time required to process the application in the normal way and consequently, in order to facilitate the Claimant’s request, certain forms were not completed.
The Court is satisfied that upon notification of her intention to return to work, the Claimant was informed of the provision in the Scheme which provides for a possible wait of up to twelve months before returning to duties. The Court is satisfied that her return to duties was in accordance with the provisions of the Scheme and accordingly does not recommend in favour of the Union’s claim.
Therefore, the Court concurs with the findings of the Rights Commissioner and upholds the Recommendation that a sum of €1,000 should be paid to the Claimant in full and final settlement of the claim.
The appeal fails.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
24th April, 2012______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.