FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : CHRIST KING GIRLS' SECONDARY SCHOOL - AND - A WORKER (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of a Rights Commissioner's Recommendation R-095417-IR-10/EH.
BACKGROUND:
2. The case before the Court concerns the Worker's appeal of a Rights Commissioner's RecommendationR-095417-IR-10/EH.The dispute relates specifically to the Worker's claim that she is entitled to return to work on a full-time basis having previously entered into a job-sharing arrangement in her position as a School Secretary. The Worker commenced a job-sharing arrangement in 1996 and remained in this position up until 2009 when she informed her employer of her intention to return to a full-time position. The Employer informed the Worker that at that time they could not facilitate her with a full-time position and therefore refused her application to return to a full-time role. The Worker claims that having remained in her job-sharing position for a period exceeding one year she is entitled to return to a full-time position. The Employer rejects the Union's claim arguing that while it is recognised that she has the opportunity to return to a full-time position, it is not an entitlement and this was communicated to the Worker. The Employer further maintains that the provision of a full-time position to the Worker would effectively result in the termination of the second job-sharer's employment. The Worker is currently seeking re-instatement to a full-time position and compensation for loss of earnings and pension entitlements. Agreement could not be reached between the parties and the matter was referred to a Rights Commissioner for investigation and recommendation.
On the 20th January, 2011, the Rights Commissioner issued his Recommendation as follows:
- "I recommend that the Claimant does not have the right to return to full time work until the opportunity presents itself.
I recommend that the employer should continue to offer her any additional hours that become available and that she should accept them until such a time as a full time post becomes available".
On the 23rd February, 2011 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 30th May, 2012.
UNION'S ARGUMENTS:
3. 1. The Employer is acting in breach of the terms of the Worker's contract by not facilitating her return to a full-time position.
2. The Worker, having remained in her job-sharing position for over one year, is now entitled to return to full-time employment.
3. The Employer previously invited the Worker to return to full-time status, however, she was unable to do so at that time. The Union is of the view that the Employer remains in a position to offer the Worker a full-time role.
EMPLOYER'S ARGUMENTS:
4. 1. The Employer asserts that no full-time role has arisen since the Worker submitted her application to return to a full-time position.
2. The Employer has facilitated the Worker with additional working hours when funding has been available to do so.
3. The Employer contends that it has fully abided by the terms of the Worker's contract and furthermore she is not contractually entitled to automatically return to full-time status.
DECISION:
This is an appeal by the Claimant against a Rights Commissioner’s Recommendation which found in favour against her claim that she had an immediate right to return to full-time employment from her job-sharing arrangement.
On 14thFebruary 1996 the Claimant commenced on a job-sharing arrangement in accordance with the Department of Education and Skills’ (“the Department's”) Job-Sharing Policy with approval from both the Department and the School’s Board of Management. The Claimant’s job-sharing partner (Ms M) was appointed and commenced job-sharing on 26thFebruary 1996.
On 2ndApril 2009 the Claimant issued notice of her intention to return to full-time employment in accordance with the Policy. The Board of Management contacted the Joint Management Board who in turn contacted the Department about the matter. Initially she was informed that her request had been approved and she could return to full-time employment from 1stSeptember 2009. Subsequently, however, on 28thAugust 2009, following intervention by Ms M’s Solicitor, the Board of Management informed her that it had reversed their position. The Board of Management informed her that her request could not be accommodated at this time and offered her additional hours of work during her alternate week off for a period of ten months.
Section 2 (vi) of the Job-Sharing Policy provides those on job-sharing arrangements with an opportunity to return to full-time employment once they have completed a year job-sharing. The Board of Management contended that as there are no full-time opportunities available at the time it could not facilitate the Claimant, furthermore, it held that it had a duty to recognise the statutory and contractual employment rights of the Claimant’s job-sharing partner who had been in the role since 1996. In the meantime the Board of Management has continued to offer the Claimant the additional hours referred to above. The Board of Management told the Court that it had written to Ms M’s Solicitor confirming her status within the School as a permanent part-time worker.
The Court notes that by letters dated 5thMay 2011 and 30thJune 2011 to the Claimant and the Board of Management, the Department outlined its position on the Claimant’s application to return to full-time employment and informed the Board of Management that she was entitled under the terms of the Policy to return to full-time employment and that her job-sharing partner should be given notice as the latter had been employed as a temporary part-time replacement job-sharer and accordingly her position existed only for the period for which the permanent post-holder was job-sharing, a position which the Court cannot uphold.
In the circumstances, the Court is of the view that the Board of Management has no alternative but to abide by the instructions of the Department. However, the Court is strongly of the view that in complying with the Departments’ instructions Ms M’s employment rights must be fully preserved. Therefore, the Court is of the view that in order to comply with the Department’s instructions to return the Claimant to full time employment, the Department itself must facilitate the Board of Management in so doing while fully preserving and protecting Ms M’s employment rights both now and for the future, including her pension rights.
The Court overturns the Right’s Commissioner Recommendation.
Accordingly, the Union’s appeal is successful.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
27th June 2012______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.