FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE-SOUTH-EAST - AND - A WORKER (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Appeal of Recommendation of a Rights Commissioner r-095858-ir-10/EH.
BACKGROUND:
2. The Claimant has been employed as a Clerical Officer with the HSE for over 25 years. She took up a job-sharing post in 1997. In February 2010 she wished to return to a full-time post but was refused by Management citing that there were no vacancies and that, however, it was their policy to give priority to those returning from a career break . The claim concerns a request to return to full-time employment with effect from September 2010.
The issue involves a claim by a Worker. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 14th January, 2011, the Rights Commissioner issued his Recommendation as follows:-
"I note that the scheme stipulates "the occurrence of a suitable vacancy. I note that it is the employer's position that no such suitable vacancy exists at present. I note in the Labour Court Recommendation LCR18777 the Court stated "having examined the terms of the Job Sharing Scheme the Court is satisfied that management has fully complied with its terms".I note in this case that the employer has stated that there is no approval for a vacancy caused by the moratorium on recruitment. I note that the Career Break Scheme guarantees a right to return to work whereas the Job Share Scheme does not... For the above reasons I recommend that this claim should fail".
On the 21st 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 27th March 2012.
UNION'S ARGUMENTS:
3. 1. Under the Job-Sharing Scheme the HSE is obliged to allow the Claimant to return to a full-time post. It is unreasonable for the HSE to suggest that she will have to wait until those returning from career breaks have been accommodated.
2. She has been denied her right to return to full-time employment and as the only income source for the household she now has an urgent need to be facilitated back to her full-time permanent post.
COMPANY'S ARGUMENTS:
4. 1. The Career Break Scheme guarantees a right to return to work whereas the Job-Sharing Scheme does not. There is no approval for a vacancy due to the moratorium on recruitment.
2. The claim constitutes a cost increasing claim and as such is prohibited by the Public Service Agreement 2010-2014. The HSE South-East respectfully requests that the Court reject this appeal.
DECISION:
This is an appeal by the Union on behalf of the Claimant of a Rights Commissioner’s Recommendation which found against her claim that her Employer had failed to facilitate her return to full-time employment following a period on a job-sharing arrangement. The Rights Commissioner found that the Employer had correctly applied the terms of the Job-Sharing Scheme and accordingly rejected the claim.
The Employer stated that following receipt of her application to return to full- time working it found that there was no suitable vacancy for her at her current location in St. Dympna’s Hospital, Carlow. The Employer offered her a temporary alternative position in Kilkenny which the Claimant declined.
It was clarified at the Court that the Claimant was open to consider other alternative positions at her grade which may arise in the broader region to include the Kilkenny/Carlow/South Tipperary Integrated HSE Service Area and the Employer was willing to notify her of any such vacancies arising.
The Court finds that the Employer has not contravened the conditions of the Job-Sharing Scheme and accordingly upholds the Rights Commissioner’s Recommendation and the Union’s appeal fails.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
10th May, 2012______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.