FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : UNIVERSITY COLLEGE CORK - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner Recommendation ir112778/11/MR.
BACKGROUND:
2. The Worker commenced employment with UCC as a full-time Departmental Operative in May 2002. Following maternity leave in December 2005 she successfully applied for a job-sharing post. She later requested a return to full-time working effective from 15th March 2011 but despite extensive discussions the matter remained unresolved for a period of time. She was facilitated with a return to full-time temporary work on 26th September 2011 and was made permanent effective from 10th April 2012. The Union is seeking compensation for the delay and loss of earnings but Management cite Circular 11/2010 from the Department of Finance (appendix 3) and have refused payment.
The issue involves a claim by a Worker. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 25th January, 2012, the Rights Commissioner issued his Recommendation as follows:-
"I now recommend that University College Cork should agree to pay an ex gratia lump sum of €1,000, on a once-off and without precedent basis to (named Claimant) in recognition of the circumstances giving rise to the long delay in allowing her to return to full-time working."
On the 15th February, 2012 the Employer 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 1st March, 2013.
UNION'S ARGUMENTS:
3. 1. The University has a duty to accommodate the Claimant's wishes within a reasonable period of time, this it has failed to do.
2. The University should pay the Claimant compensation for the undue delay in returning her to full-time working and for the loss of earnings arising therefrom.
COMPANY'S ARGUMENTS:
4. 1. There is no automatic right or entitlement to return to full-time working, the University accommodated the Claimant at the earliest possible date.
2. The University does not have the authority to make a compensation payment as recommended by the Rights Commissioner.
DECISION:
This is an appeal by UCC of a Rights Commissioner’s Recommendation which recommended that the University should pay the Claimant the sum of €1,000 in recognition of the circumstances giving rise to the delay in allowing her return to full time working from her job sharing arrangement. The Court notes that since the Rights Commissioner’s Recommendation was issued the Claimant has been placed in a permanent full time role.
University management appealed the Recommendation stating that it had responded in an appropriate manner to the Claimant’s request for a return to full time working, however, it stated that it was hampered in this regard by Paragraph 1.5 of the Public Service Agreement 2010-2014 , which states as follows:
“To facilitate the necessary reduction in numbers of public servants, the moratorium on recruitment and promotion in the Public Service and other employment numbers control mechanisms will continue to apply until numbers in each sector have fallen to the appropriate level specified in the Employment Control Framework for that sector.”
Furthermore, the University contended that the Employment Control Framework for the higher Education Sector restricted it’s autonomy to fill vacancies.
The Union claimed that the delay in placing the Claimant in a full time role was not justified particularly when other roles within the University had been filled and in view of the level of overtime worked.
Having considered the oral and written submissions of both parties the Court is of the view that the placement of the Claimant in a full time position, initially on a temporary basis from September 2011 and eventually on a permanent basis from April 2012, was reasonable within the constraints imposed on the University. In such circumstances, the Court does not find that a compensation payment is appropriate and accordingly overturns the Rights Commissioner’s Recommendation.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
11th April, 2013______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.