FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : UNIVERSITY COLLEGE DUBLIN (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Ms Ni Mhurchu |
1. Appeal of Recommendation of a Rights Commissioner r-082146-ir-09.
BACKGROUND:
2. The Worker has been employed in UCD since June 1999 and in May 2009 she was granted a career break for the period 1st August, 2008 to 31st July, 2009. In June 2009 she wrote to the Employer confirming her intention of returning to work on 1st September 2009, but was advised that there was no vacancies at her grade in the School she left. The Union claim is that the Worker should not be disadvantaged by the unreasonable delay in her returning to work and she should receive full pay including payment of increments due. Management's position is that they have adhered in full to the 2008 agreement.
The issue involves a claim by the Union. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 15th December, 2010, the Rights Commissioner issued his Recommendation as follows:
"In my viewclaimant had a legal right and obligation to return to work in July 1st 2009 and this was denied to her by her employer, who seems severely unaware of its own written policies. I recommend that the claimant be compensated for the loss she suffered during her period of non employment and any monies she received from the state or working elsewhere during that time should be used to reduce her loss and she should receive the nett loss".
On the 18th January, 2011 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 13th May, 2011.
UNION'S ARGUMENTS:
3. 1. The appeal should be disallowed as the grounds are erroneous and are not based on facts as is evident by the analysis in the Rights Commissioner's detailed Recommendation.
2. This Worker was forced to apply for Social Welfare, suffered loss of income, pension contributions, annual leave and increments as a result of the Employer's refusal to allow her back to work.
3.In the interest of righting a wrong imposed by the Employer, this appeal should be disallowed.
EMPLOYER'S ARGUMENTS:
4. 1. Nowhere in the policy document is reference made that when a career break ends, Employees will be paid whilst new positions are sourced for them. They are entitled only to be offered the next available post commensurate with their grade.
2. The Rights Commissioner did not fully appreciate the financial implications across the wider public sector nor fully consider the arguments put forward by UCD at the Rights Commissioner's hearing.
DECISION:
While the Rights Commissioner considered a significant number of issues it appears to the Court that a relatively discrete and straightforward point is at the heart of this dispute.
The Claimant was offered a career break on terms that were set out in the University's letter of 6th May 2008. Those terms were accepted and thus became the agreed basis upon which the career break was availed of. It is also clear that these terms were fully consistent with the University's policy on career breaks then in being.
That policy subsequently changed after the agreement was concluded between the parties. The Union now contends that the terms of the agreement should be altered so as to reflect the terms of the revised policy.
The Court is of the view that relevant terms governing the taking of the career break and the return to work of the Claimant were those agreed in May 2008. It is clear that the University acted in accordance with those terms in dealing with the Claimant's notified intention to return to work.
In these circumstances the Court can not uphold the Rights Commissioners Recommendation. Accordingly, the University's appeal is allowed and the Recommendation is set aside.
Signed on behalf of the Labour Court
Kevin Duffy
1st June, 2011______________________
JFChairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.