FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DUBLIN INSTITUTE OF TECHNOLOGY - AND - A WORKER (REPRESENTED BY TUI) DIVISION : Chairman: Mr McGee Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioner's Recommendation R-057758-Ir-07/JT.
BACKGROUND:
2. The worker is employed by the Institute as a Senior lecturer grade 3. She applied for and was granted a career break which commenced on the 1st September, 2002, and lasted until 31st August, 2006. The Institute's case is that it would have been difficult to fill the worker's position on a temporary basis and that leave of absence in the form of a career break was not operationally viable. It proposed (by letter of 17th July, 2002) that she take the leave on the understanding that her old position would not be guaranteed but she would return to the first appropriate position suitable to her grade i.e."Senior Lecturer 3 or possibly Senior Lecturer 2 which may arise after that date.". The worker was unhappy with the reference to "Senior Lecturer 2" and said so in a letter dated 19th July. The Institute replied on 25th July, 2002, with an identical letter to 17th July but without reference to "Senior Lecturer 2". In the event the worker's position was filled on a permanent basis.
The Institute contacted the worker in March, 2006, about her intentions and she indicated that she wished to be reinstated on the 1st September, 2006. The Institute wrote to her on 31st August, 2006, stating that there was no suitable Senior Lecturer 3 post but that she might consider an appropriate post at Senior Lecturer 2. The worker declined the offer and to date she has not returned to the Institute's payroll. The Union is seeking that the worker be paid retrospective to the 1st September, 2006.
The worker referred her case to a Rights Commissioner and his recommendation was as follows:
" I have considered the submissions made by both parties and the substantial correspondence and documentation involved. I accept the respondent's representative statement that, the claimant, in regard to the schemes catering for a career break, did not enter a separate arrangement or agreement. I also believe that the respondent's offer contained in the letter of the 4th January 2007 was a genuine attempt to come to an interim arrangement pending an appropriate vacancy arising for a Grade 3 lecturer. Having reviewed this case I believe there is a number of unique features pertaining to both parties and how they have found themselves in this situation.
The offer of the 4th January if it had been accepted would have provided a temporary though not satisfactory solution for the claimant. However, equally so the claimant's position was filled (other than acting) while she was on a career break and is what I believe to be a breach of the agreement between the claimant's Union and the respondent. I,therefore, recommend that the claimant be paid €10,000 for this breach having taking account of the respondents offer in the letter of the 4th January. The claimant's position continues to be covered under the terms of the Department of Education & Science Circular dated the 30th August, 1985. It should be noted that this decision is without precedent and cannot be used in any shape or form in any other case due to the unique circumstances surrounding it".
Both parties appealed the recommendation in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 11th March, 2009.
UNION'S ARGUMENTS:
3. 1. The Institute's scheme for career breaks is identical to that of the Department of Educations and Science's circular of 30th August, 1985, which states"Lecturers will retain an entitlement to resume duty in a permanent post on the termination of the approved period of the career break. The regulations in force at the date of resumption will apply to the staffing position in the Institute."The worker accepted her career break on these terms and made it clear to the Institute. She had an absolute entitlement to return to a post and on to the payroll.
2. There was no "separate" agreement with the worker regarding her career break as the Institute claims. In her letter of 19th July, 2002, she clearly stated"I would appreciate if my request could be dealt with according to the "Scheme for Career Break for Teachers....."
INSTITUTE'S ARGUMENTS:
4. 1. The worker's leave of absence was a special arrangement in that her post was not filled on a temporary basis for the duration of her leave but on a permanent basis. She was advised that she could return to the first appropriate available position after the end of the leave, and she accepted that situation.
2. The Institute has offered the worker two positions that may be suitable to her but neither offer has been takenup. The Institute continues to evaluate all Senior Lecturer 3 posts as they arise in terms of their suitability for the worker.
DECISION:
The Court has considered the submissions put to it by the parties.
It is the view of the Court that it is likely that the Claimant would have known when she went on her career break that her then position would have been advertised as a permanent position and was in the course of being filled by one of her colleagues. From that it may be assumed that she had no guarantee of returning to her previous position. The Court also considers that the Claimant was unwise to reject the offer of a Grade 11 position, with an allowance, which would mean no loss of earnings to her, which was made to her pending the availability of a Grade 111 position. The Court does not uphold her appeal and decides to dismiss it.
The Court does not consider, however, that the Institute dealt at all times with the Claimant in a clear and transparent manner. Their letter of 25th July, 2002, offering her a career break should have been less opaque, and clearly indicative of being a non-standard variation of career break.
The Court, therefore, decides that the Claimant be offered the next suitable position at Grade 111 level when such becomes available, or a suitable Grade 11 position with a salary allowance equivalent to Grade 111, and confirms the award of the Rights Commissioner for €10,000 to be paid to her and dismisses the Institute's appeal in this regard.
Signed on behalf of the Labour Court
Raymond McGee
30th March, 2009______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.