FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : AN POST - AND - A WORKER (REPRESENTED BY CPSU) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner Recommendation r-119020-ir-11
BACKGROUND:
2. The Worker commences employment as a full-time permanent Business Support Officer in May 1987. With effect from February 2003 she began working in a job-sharing capacity and in December 2006 she applied for Maternity Leave. This leave was later extended by means of unpaid protective leave and finally a career break for two years with an expected return date of 22nd February 2010. On 7th October 2009 the Worker advised the Company that she was available to return to work and asked if they could facilitate her. Eighteen months passed before she was offered a suitable position that she could avail of. The Worker is seeking compensation for losses suffered, the Company rejects the claim stating that the terms of the Career Break Scheme were complied with in full.
The issue involves a claim by a Worker. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 19th April, 2012, the Rights Commissioner issued his Recommendation as follows:-
" My function in this matter is to investigate whether or not in all the circumstances of the instant case there was any breach of the terms of the "Special Leave without pay for Career Breaks" policy. I have not detected any such breach...."
On the 9th May, 2012 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 24th July, 2012..
UNION'S ARGUMENTS:
3. 1. There were suitable fillable vacancies available, albeit of a temporary nature, during November 2009 on the 'Linking Project', eighteen months before the Company offered the Worker a return to employment.
2. The Scheme also provides that an Employee 'may be offered alternative temporary employment in another office until the first fillable vacancyarises in the former office'. Instead the Company hired temporary Workers to fill the positions while failing to facilitate a permanent Worker to return to employment.
COMPANY'S ARGUMENTS:
4. 1. The Worker was offered a position to return to work in September 2010 but the offer was declined and she advised the Company that she was only available to return on a mornings only job-sharing basis.
2. The Worker has acknowledged that she can only return to employment whenever a suitable vacancy exists. The Company has fully complied with the terms of both the Career Break Scheme and the Job-Sharing Scheme.
DECISION:
While the Court has sympathy for the position in which the Claimant found herself it concurs with the conclusion of the Rights Commissioner to the effect that the Company applied the Special Leave without pay for Career Breaks' policy correctly within the terms of that policy.
In these circumstances the Court upholds the Recommendation of the Rights Commissioner and disallows the appeal.
Signed on behalf of the Labour Court
Kevin Duffy
25th September, 2012______________________
JFChairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.