EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
Fionnuala McDonagh, UD2179/2011,
RP2789/2011
MN2214/2011
against
Enterprise Ireland
Under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms K. T. O' Mahony B.L.
Members: Ms M Sweeney
Mr J. Flavin
heard this claim at Cork on 3rd October 2013 and 15th January 2014
Representation:
Claimant: Mr David O’Keffee
PJ O'Driscoll & Sons, Solicitors, 73 South Mall,Cork
Respondent: Mr John Nolan Enterprise Ireland, Employee Relations Manager, The Plaza,
East Point Business Park, Dublin 3
Preliminary Issue
The respondent contended that the claim under the Unfair Dismissals Acts was statute barred as the date of the termination of the claimant’s employment was 28 September 2004 and her claim was lodged with the Tribunal on 21 November 2011.
Having heard submissions on the termination of the claimant’s employment with respondent, the Tribunal found it necessary to hear the full case to determine whether there had been a dismissal, a constructive dismissal or a repudiation of the contract of employment.
The claimant was on a career break. The respondent’s Career Break Policy provides: In the event that the individual does not resume duty on the re-entry date, employment will be deemed to have terminated from the commencement the career break. Issues arose between the parties as to the position offered to her by the respondent in August 2010 and July 2011.When the claimant failed to accept the latter offer or respond in any way to it, the respondent wrote to her on 20 September 2011 in the following terms:
“As we have had no contact from you since your email of August 4th, in accordance with terms of [the respondent’s] career break policy, and as set out in our letter to you dated 22 July 2011, because of you failure to resume duty in the post which was offered to you, your employment is deemed to have terminated with effect from your last day of service, being 27th September 2004.”
Determination on Preliminary Issue
The de facto termination of the employment relationship was brought about by the communications or lack of communications between the parties on some date subsequent to the respondent’s letter dated 22 July 2011 and, at the latest, on receipt by the claimant of the respondent’s letter of 20 September. It was not necessary for the Tribunal to determine that precise date for the purposes of this application as any of those dates is not earlier than six months before the unfair dismissal claim was lodged with the Tribunal on 21 November 2011. The date of dismissal is a statutory construct which cannot be changed by agreement between the parties. Accordingly, the Tribunal has jurisdiction to hear the claim.
Summary of Evidence
The respondent is a non-commercial semi-State entity whose main remit is to develop and promote indigenous businesses with a view to growing and expanding their export potential. Its employees have public servant status. Around ten percent of its workforce is based overseas. Prior to the mid 2000s the respondent was directly engaged in conducting primary research in Irish universities.The claimant, who has both a Bachelors and Masters Degree in Food Science and Technology, worked as a biotechnology analyst undertaking research work at the local university (UCC), having initially commenced employment with the respondent’s predecessor agency (Eolas) in 1993.Betweenthe years 2001 to 2006 the respondent ceased its involvement in primary research and the staff affected were reassigned to other roles within the organisation.
On 28 September 2004the claimant commenced a two-year career break, subject to the terms and conditions of the respondent’s career break policy. The terms and conditions of the claimant’s career break contract, as derived from the respondent’s Career Break Policy, was signed by the claimant on 5 September 2004 and contained the following:
You must write to the Human Resources Department no later than 3 months prior to the end of your Career Break should you wish to be re-employed by [the respondent]. [The respondent] will endeavour to re-employ you as soon as a suitable vacancy arises after the due date of return and no later than 12 months after the end of your Career Break (subject to the policy which is in operation at the time).
There is no guarantee that you will be returned to your original geographic location.
…
In the event of being unable to resume duty on a designated date you will then be deemed to have terminated your own employment.
- During the Career Break you will retain your substantive grade and will return to work at the same point on the scale you had reached prior to commencing Career Break.
In 2006 the respondent introduced a voluntary leaving programme,which was open to all employees on the payroll. The claimant sought to apply but, due to being on a career break on 2 February 2006, she was not eligiblefor consideration under the terms of the programme.In July 2006 the claimant’s career break was extended, by three years, to 27 September 2009.
On 23 March 2009 the claimant wrote to the respondent indicating her intention to return to work on that date and asking what work options would be available to her but did not receive a response to this or to her further letters of 15 July, 27 August 2009 and 21 September 2009. There were a number of telephone calls between the parties over the period. It was the claimant’s evidence that, in a telephone conversation in June 2009, the respondent had informed her that a position was not available. In its reply dated 2 October 2009 to the 21 September letter from the claimant, the respondentenclosed its current Career Break Policy and indicated that it wasrelying on the following clause:
“the organisation will endeavour to re-employa person on the designated return date or as soon as possible thereafter and no later than 12 months (subject to public sector policy at the time). A re-entry date will be proposed by [the respondent] as soon as a suitable post arises and the staff member will have four weeks to prepare for re-entry.”
The letter continued:
“We are currently reviewing the vacancies across the organisation and the allocation of resources based on the business needs. We will seek to assign you to a suitable role commensurate with your skills and experience.”
The human resource manager (HRM) and a HR specialist (HRS) met the claimant on 16 June 2010 to have initial discussions about her return to work, to update her on the current and evolving situation within the respondent and to discuss her return to work. As a result of the public sector moratorium re-employment and re-assignment were more difficult. It was the respondent’s position that it was confirmed to the claimant at this meeting that she would return to work on the same salary scale and grade as she had been on at the time of the commencement of her career break. The claimant’s position was that she made it clear to the respondent that research and Cork would be both her preferred role and location but that she was open to all options. HRS undertook to send her a list of the jobs available throughout the organisation. Following this meeting the respondent commenced the process of looking for a suitable position for the claimant and identified the position of Regional Development Executive for the south west or south east region, which would be located in Cork. No other suitable position emerged. The claimant was aware that the respondent was no longer involved in laboratory based research.
A further meeting was arranged for the claimant with the Regional Director for the south/south east and a senior HRS specialist for 6 August 2010 in relation to her return to work.A role profile for the position of Regional Development Executive, which contained a detailed job description, was sent to the claimant the day prior to the meeting. The respondent’s position was that the meeting on 6 August had been arranged to finalise the claimant’s return to work.She was informed that she would receive training and mentoring in the role. The claimant sought time to consider the proposed role. The claimant’s position was that she had been told that there would be no training for the position. She felt that the position offered would bevery different from her previous work in research and that the information she had sought both at and following the meeting on the salary scale and grade for the proposed position was not forthcoming. On 23 August 2010 the claimant wrote to HRMin the following terms:
“I would like to advise you of my decision, based on the information made available to me, not to accept the position of Regional Development Executive, south west/south east region.
I would like to avail of this opportunity to thank you for all your help and assistance.”
The respondent’s position was that it continued to seek a fit between the respondent’s business needs and the claimant’s preferences after receipt of the claimant’s letter of 23 August but it failed to identify any other position carrying her salary scale and grade. It is standard practice to invoke the twelve month option in its endeavour to find a suitable position for someone returning from a career break and it is a matter for the individual to determine whether the position offered is suitable. Geographic location is a dominant factor for workers returning especially where they have family commitments, which was the reason for her career break. Workers rarely slot back into their original positions and this is made clear to them when taking a career in the career break contract. The respondent endeavours to accommodate the individual’s wishes as best it can. Some workers return to the position offered and then continue to seek a more suitable position within the organisation. About seven were returning to work following breaks in the year 2009/2010. It was HRS’s evidence that people rarely slot back into their original
The claimant’s position was that she believed that other positions would be potentially available to her. As the 12 month period would expire on 27 September 2010, she wrote to HRMon 24 September 2010 seeking its up-to-date position on her return to work as. HRM replied on 7 October 2010, to a further letter dated 5 October from the claimant, asking her whether she would consider work locations,other than Cork, as this restriction was contributing to a delay in finding a suitable vacancy for her. The claimant communicated her disappointment at thisstance by the respondent and sought legal assistance in the matter. By letter dated 30 November 2010 her solicitor, although stating the claimant’s preferences, indicated that she would consider other positions and locations. The respondent replied that it was not in a position to issue a formal response to this letter at that time.
In its letter dated 10 June 2011, HRS again offered the position of Regional Development Executive to the claimant, indicating that it was immediately available and that she would provide any clarifications the claimant might require. A job description was enclosed with the letter and the respondent sought a response within seven days. On 14 June 2011, HRS confirmed by way of email to the claimant’s solicitor, that the claimant had retained her substantive grade during her career break and would return on the grade she had reached prior to her career break. Further details of the salary scale and remuneration were also furnished. On 4 July 2011 the claimant advised the respondent that she was no longer represented by the solicitors and asked that the respondent deal directly with her.
By letter dated 22 July 2011 HRS outlined the respondent’s position to the claimant. The position of Regional Development Executive which was Cork based was again offered to her and she was informed that training and other supports including mentoring would be made available to her should she accept the role. At that time the respondent did not have suitable vacancies in Shannon, and the claimant, due to domestic circumstances, was unable to transfer to Dublin. The claimant was asked to communicate her decision by 2 August 2011 and was further informed: “Should you decide not to return to [the respondent]to commence in this post, in line with the organisation policy, your employment will be deemedto have been terminated from the commencement of your career break.” As the claimant was on holidays until around 4 August the date for notification of her decision was extended to 19 August. 2011. No further communication was received from the claimant. The claimant’s evidence was that she decided not to reply to the letter of 22 July 2011.
HRM wrote to the claimant on 20 September 2011, referred to recent correspondence and stated:
“As we have had no contact from you since your email of August 4th, in accordance with terms of [the respondent’s] career break policy, and as set out in our letter to you dated 22 July 2011, because of you failure to resume duty in the post which was offered to you, your employment is deemed to have terminated with effect from your last day of service, being 27th September 2004”
The claimant’s evidence was that she was not sure what to do and how to react but she felt unfairly treated by her employer.
Determination
It is worth setting out the relevant clauses of the claimant’s career break contract, which are:
2 “ … should you wish to be re-employed by [the respondent]. [The respondent] will endeavour to re-employ you as soon as a suitable vacancy arises after the due date of return and no later than 12 months after the end of your Career Break (subject to the policy which is in operation at the time).
There is no guarantee that you will be returned to your original geographic location.
…
In the event of being unable to resume duty on a designated date you will then be deemed to have terminated your own employment.
- During the Career Break you will retain your substantive grade and will return to work at the same point on the scale you had reached prior to commencing Career Break.
The respondent was no longer engaged in laboratory research. It endeavoured to re-employ the claimant in a suitable position carrying the same salary scale and grade as the claimant had enjoyed immediately prior to her career break. The respondent made this endeavour within the twelve month period in compliance with the claimant’s career break contract. The respondent continued with this endeavour following the expiry of the twelve month period on 27 September 2010.
The Tribunal is not satisfied that the respondent acted unreasonably. The issue of the salary scale and grade at which the claimant would be employed were she to accept the position offered seemed to be of major significance for her in reaching her decision on whether to accept the respondent’s offer. These were clearly set out in the career break contract and confirmed to her at a number of meetings including the meeting of 16 June 2010, which pre-dated the expiry of the twelve month period. Specifics of the salary scale and grade were furnished to her solicitor by e-mail on 14 June 14 June 2011. The Tribunal further accepts the respondent’s evidence that it was confirmed to the claimant at the meeting on 6 August 2010 that she would receive training and mentoring in the position offered.
Had the claimant accepted the role offered to her, albeit reluctantly, then she would have the opportunity to pursue other more suitable positions from within the organisation
The claimant’s evidence was that she was aware of the consequences that would flow from her failure to respond to the respondent’s letter of 22 July 2011.
The Tribunal finds that there was no dismissal in this case. Accordingly, the claim under the Unfair Dismissals Act, 1977 to 2007 is dismissed.
As there was no dismissal the appeal under the Redundancy Payments Act, 1967 to 2007 fails..
As there was no dismissal,the claimant has no entitlements under the Minimum Notice and Terms of Employment Acts, 1973 to 2005and that claim also fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)