FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : ST JAMES HOSPITAL BOARD (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY INMO) DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal of Right's Commissioner Recommendation R-141735-IR-13/DI
BACKGROUND:
2. The Claimant commenced employment with the Respondent in 2005 as a Staff Nurse. While on maternity leave in 2013, the claimant enquired about the possibility of a career break in order to pursue a post-graduate qualification. The Claimant was advised that she would not be granted a career break. She tendered her resignation in the Respondent's employment on 25 August, 2013. The Claimant contends that the provisions of HSE HR Circular 004/2001 should have applied to her in the circumstances she is entitled to retain her permanent status.
- This matter was referred to a Rights Commissioner for investigation and Recommendation. On the 24th June, 2014 the Rights Commissioner issued the following Recommendation:-
- Having fully considered the submissions made by the parties I find the Respondent was entitled to inform the claimant that leave of absence would not be granted and is also entitled to reject the application/sponsorship under the terms of Circular 004/2011 as it did not serve the patient or service needs of the Respondent. I therefore find against the claim.
WORKER’S ARGUMENTS:
3. 1. The purpose of the HSE Circular 004/2011 is to afford the Irish Health system the opportunity for post registration students to undertake further education which is to the benefit of the Irish Health service which include St. James Hospital.
2. The Worker was not advised by the Employer that the opportunity to apply under the Circular was available to her.
3. The Circular was introduced to protect employees and guaranteed their return to their substantive post in circumstances where for various reasons they may not have finished their Post Graduate Training or were not offered a post at the end of their Post Graduate Training. It was to avoid the exact circumstances the Worker now finds herself in.
EMPLOYER’S ARGUMENTS:
4. 1. The Worker voluntarily resigned her position with the Hospital in order to pursue further studies and return to University with a view to qualifying as a Midwife.
2. St. James Hospital is an acute general hospital and is not a recognised children's nursing education hospital or midwifery education hospital. Therefore, Circular 004/2011 does not apply to St. James Hospital.
3. St. James Hospital cannot generally preserve the Worker's role open for her, or guarantee employment for the Worker in the Emergency Department after the conclusion of her studies. To do so would be to afford the Worker a career break, this would be patently unfair to other employees within the hospital who have had career break requests/enquiries refused.
DECISION:
The Court has given careful consideration to the extensive written and oral submissions in this case.
The Court notes that the Claimant voluntarily resigned her position with the Hospital in order to pursue further studies with a view to qualifying as a Midwife. Some seven weeks later she sought to retract her resignation in order to avail of the protections set out in HSE HR Circular 004/2011. She argues that she was not aware of the Circular and that it was management’s obligation to bring it to her attention and facilitate her release to undertake the relevant course of study.
Management did not accommodate her in this regard and argued that she did not come within the scope of Circular on which she sought to rely.
The Court finds that the Circular at issue is a public document that was publically available. It could have been discovered and relied upon by the Claimant before she resigned her position. She did not do so.
The Court finds no merit in the Union’s assertion that there was an obligation on Management to bring the Circular to her attention. No evidence of such an obligation was presented to the Court.
The Court therefore finds that the Claimant made a personal career choice that terminated her employment relationship with the Respondent. She cannot now rely on a circular that she did not raise with the Respondent before resigning her employment.
The position of both parties regarding the true meaning of the Circular is therefore a moot point on which the Court expresses no view at this time.
The Court does not allow the appeal and for the reasons set out above affirms the recommendation of the Rights Commissioner.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
CO'R______________________
11/02/2015Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Clodagh O'Reilly, Court Secretary.