FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE WEST - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Mr Nash |
1. Appeal against Rights Commissioner's Recommendation r-083294-ir-09/SR.
BACKGROUND:
2. This dispute concerns the manner in which the Employer facilitated the Worker's return to her substantive post from a career break. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 19th November, 2008 the Rights Commissioner issued the following Recommendation:-
- “I recommend that the Employer should immediately facilitate the Claimant's return to her substantive post within the HSE - they should enter into immediate negotiations with SIPTU and the claimant to effect this, and those negotiations should be concluded before the end of July 2010. I further recommend that the Claimant should be deemed to be reinstated with effect from 1st July 2009, which will obviously involve payment of appropriate arrears”.
- “I recommend that the Employer should immediately facilitate the Claimant's return to her substantive post within the HSE - they should enter into immediate negotiations with SIPTU and the claimant to effect this, and those negotiations should be concluded before the end of July 2010. I further recommend that the Claimant should be deemed to be reinstated with effect from 1st July 2009, which will obviously involve payment of appropriate arrears”.
3. 1.The Worker was given a career break in 2003 to work for the Irish Association of Suicidology.
2.When the Worker was made redundantin 2009, a return to her substantive post should have been facilitated by the Employer.
3.The Worker has suffered significant financial loss as a result of the Employer's actions.
EMPLOYER'S ARGUMENTS:
4. 1. The Worker was granted a career break in 2003, which was renewed several times at the Worker's request.
2. In 2008, the Worker was seconded to the Irish Association of Suicidology at her own request for a period of five years.
3. The Worker has now been facilitated with a return to her substantive position, eventhough the 2008 secondment was not due to end until 2013.
DECISION:
The Court has carefully considered the submissions of both parties in this appeal.
The Court notes that there is no secondment policy in operation within the HSE that can be applied in this situation. The Court also notes that the terms of the Career Break Scheme do not apply in circumstances such as those that arise in this appeal.
Accordingly the Court’s decision in this appeal has been arrived at on the basis of what it considers fair and reasonable having taken all of the circumstances into account.
In making its decision the Court notes that agreement on a return to work with effect from Monday 14th March 2011 has been concluded between the parties on terms notified to the Court in the course of the hearing.
On this basis the Court decides that the claimant should have been brought back to work with effect from January 1st 2010. The Rights Commissioner’s recommendation is varied accordingly.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
24th March, 2011______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jonathan McCabe, Court Secretary.