ADJUDICATION OFFICER RECOMMENDATION.

Adjudication Decision Reference: ADJ-00000314

Dispute for Resolution:

Date of Adjudication Hearing: 19th April 2016

Workplace Relations Commission Adjudication Officer: Seán Reilly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act 2015 and Section 13 of the Industrial Relations Act 1969, following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.

A complaint under the Maternity Protection Act 1994 was withdrawn at the Hearing (CA-0000456-001 refers)

The Complaint and her Trade Union were in dispute with the Respondent in relation to the failure to provide her with a transfer to a location close to her home to facilitate her breastfeeding her child.   There was delay in preparing the Recommendation as the parties sought time to try to resolve the matter directly, but unfortunately this was not successful.

Summary of Trade Union Case:

The Trade Union said the dispute referred to the refusal by the Respondent of the Complainant’s request of a transfer to a base and location nearer to her home to allow her continue breastfeeding her new born child.   The Trade Union said that following a lengthy and drawn out grievance process the Complainant was denied the transfer, despite a recommendation from Stage 3 of the Complainant’s Grievance Procedure that she receive a temporary transfer.

The Complainant is upset and shocked by the Respondent’s handling of her situation and she believes that she should have been accommodated with the transfer or at least a temporary transfer.   She believes the Respondent denied her natural justice and fair process by taking almost 7 months to deal with her request/grievance and she is seeking compensation for that delay and for the stress the situation caused her.   She is also seeking that she be transferred to the Area where she lives to allow her to continue to breastfeed her son up to his second birthday.

The Trade Union said that the Complainant is employed by the Respondent as a paramedic within the Ambulance Service and she currently works as a non-rostered relief based in a named base and also covers surrounding areas.   She lives in a named location and her place of work or base is a round trip of 290kms, which takes her approximately 4 hours and 20 minutes to complete.   The Complainant has been employed by the Respondent since 1999; initially she worked as Clerical Officer close to her home, until her move to the Ambulance Service in 2008.

The Complainant has been on a Transfer Panel for permanent transfer to her home area since 2009.   The Trade Union said she does not know her placing on the Transfer Panel (the Respondent confirmed it was No. 9.)

On 16^th December 2014, the Complainant went on maternity leave and on 30^th December 2014, she gave birth to her son, who was born premature and only weighed 4lbs and 3ozs.   On advice from her doctors that it was in the best interests of her child’s health and well-being she decided to breastfeed her child – this was a decision that worked well and her child responded positively, started to develop and do well.

The Complainant was due to return to work from maternity leave on 29^th June 2015.   On 26^th March 2015, she sent a registered letter to her line manager, the Station Operations Manager requesting a transfer to her home area on the grounds that this would allow her to continue to breastfeed her child.   This request was completely ignored by the Station Operations Manager; not only did he not respond to it but he even failed to acknowledge receipt of it.   The Complainant was left with no option but to progress the matter to Stage 2 of the Grievance Procedure and she lodged a formal complaint under Stage 2.

A Hearing under Stage 2 was held and a decision issued on 2^nd June 2015; this decision did not uphold the Complainant’s grievance.   The Complainant appealed that decision to a named HR Manager on 12^th June 2015, and the Appeal was scheduled for 22^nd July 2015.

The Complainant availed of additional unpaid maternity leave of 16 weeks in the hope that the matter would be resolved, that she would be accommodated with a transfer, her additional maternity leave began on 30^th June 2015.

The Appeal Hearing on 22^nd July 2015, was conducted by a named Employee Relations Manager and the Complainant was represented by her full-time Trade Union Official.   The findings of the appeal were issued on 31^st July 2015 and were received by SIPTU on 10^th August 2015.   The Employee Relations Manager, stated that in his view serious consideration should be given to a temporary transfer of the Complainant to a base closer to her home, until her child was one year old in order that she could continue to breastfeed: it went on to state that this view was formed taking into account the strong belief the Complainant had that breastfeeding has been tremendously beneficial to the development of her child, particularly as he was prematurely born, and was a relatively low birth weight.   The Decision states: “if this is not possible, due to the service needs the service should immediately engage with (the Complainant) in order to agree processes whereby she can be accommodated to continue to distance feed her child.   In this regard the service should involve the internal experts in breastfeeding that are available with the (Respondent).”

This Appeal Decision was forwarded to the Chief Ambulance Officer and to the Complainant’s Operations Manager on 11^th August 2015, by the Complainant.   As the Operations Manager was on leave until 18^th August, the Complainant sent another email to him on 26^th August 2105.   The Chief Ambulance Officer was on leave until 8^th September 2015, the Complainant contacted the named person who was covering for him and forwarded him an email on 13^th August 2015. The Complainant contacted her Trade Union on 31^st August 2015 as at that point she had received no response to her emails

On 31^st August 2015, the Trade Union sent a copy of the Grievance Appeal Decision to the National Director of the Service, who responded on 2^nd September confirming that the matter had been forwarded to a named HR Manager.   This Manager contacted the Trade Union and he informed them that this Appeal Decision should be in front of the Oversight Group set up between the Trade Union and the Respondent to deal with transfers, he confirmed that he had sent a copy of the decision to another named member of HR staff and the named Trade Union Representative on that Group.

The Trade Union Representative on that Group emailed the HR Representative and he stated:   “In light of the timescale, and the process undertaken by the employee, this is clearly a case that is time imperative.   I would be recommending a temporary transfer as outlined by the Stage 3 process.   It is rather unfortunate that a female member of staff has to initiate the process up to Stage 3…..”

The Complainant’s Trade Union Representative enquired as to when the Oversight Group was next due to meet and were informed it was not until the end of September.   On 30th September 2015, the Complainant emailed her Trade Union Representative seeking an update on the temporary transfer; he in turn sent an email to the Respondent’s Representative on the Oversight Group on 13^th October 2015, confirming that the Trade Union representative on that Group had no objection to the Complainant’s temporary transfer and requested that this temporary transfer be implemented without delay as this arrangement would end on 31^st December 2015.

On 14^th October 2015, the Respondent’s Representative on the Group, acting on behalf of the Respondent, sent an email to all three of Service’s Senior Management seeking confirmation of the transfer arrangements for the Complainant.   The Chief Ambulance Officer wrote to Complainant referring to an email he had received on 21^st October 2015, in relation to the temporary transfer; he stated that having reviewed all the paperwork he noted that in the first instance management had complied with the legislation in place in relation to breastfeeding at work.   He further stated that being the ultimate decision maker he was not in a position to grant the temporary transfer as this would impact on service delivery with the area.   He went on to state, “…….we will certainly liaise with you to put some level of control measures in place until 1^st January 2016, to allow you to avail of a one hour break, either at the commencement of your shift pattern or at the end of your shift pattern.   We will also endeavour to place you at the closet base within (the Area) to your home address.   He concluded by asking the Complainant to email him should she wish to meet with him to discuss this offer at a named location, which was round trip of 520kms and a total driving time of 8 hours.

The Trade Union on behalf of the Complainant then referred the matter to the WRC for Adjudication

The Complainant went on sick leave on 17^th November 2015, due to work related stress and she remains on that leave to date.

The Complainant believes that her treatment by the Respondent is shameful and unfair to her, and it paints a picture of a male dominated workplace that shows little or no regard for the welfare of their post pregnancy employees or their newborn children.

The Trade Union said that the HR Manager in his Appeal Decision and the Chief Ambulance Officer in his letter to the Complainant refers to the Complainant’s rights under the Maternity Protection Act.  

The Appeal Decision states: “The legislation in relation to breastfeeding at work is covered by the Maternity Protection (Amendment) Act 2004 and also S.I. 654/2004 - Maternity Protection (Protection of Mothers who are Breastfeeding) Regulations 2004.   The (Respondent) also published a guide for employers, employees, and workers entitled Breastfeeding at Work”     It further states: “Currently a breastfeeding mother is entitled to one hour paid time off in order to breastfeed up to six months after the birth of their child” further “In this case (the Complainant’s) child is over the time limit for this time off.    In any event it is unlikely that this provision would be of any assistance in accommodating (the Complainant) given that her issue is with the time she is away from her home and the difficulty in expressing her breastmilk because of the separation from her child.”

The Chief Ambulance Officer stated “On review of all the paperwork, I note that in the first instance Ambulance Management compiled with the legislation in place in relation to breastfeeding at work.”

The Complainant said she refutes elements of these managers’ statements.   The Appeal Decision stated the Complainant’s child was over the limit for time off.   At the time of the Appeal Hearing, 22^nd July 2015, it was true that the child was over 6 months of age, however what failed to be acknowledged was the fact the child was only 3 months old when the Complainant initially raised the matter.

The Trade Union said the Chief Ambulance Officer stated:   “……..we will certainly liaise with you to put some level of control measures in place, until 1^st January 2016, to allow you to avail of a one hour break either at the commencement of your shift pattern or at the end of your shift pattern.”   The Trade Union said the letter was issued on 27^th October 2015, some 7 months after the Complainant first put in a transfer requests in March 2015.

The Complainant believes that from an industrial relations viewpoint and from a moral viewpoint the Respondent treated her unfairly and appeared to show little or no regard for her situation.   The Trade Union said that the delay from 26^th March to end of October 2015 is unacceptable.   The Respondent’s Grievance Procedure sets out the time limits the Procedure shall follow.   Stage 1 states that a Meeting will be arranged not later than seven working days following receipt of the complaint.   The Complainant received no reply to the lodgement of her complainant and she had to escalate her Grievance to Stage 2 of the Procedure.

Again at Stage 2 a Meeting will be arranged to discuss the matter not later than seven working days following receipt of the complaint/appeal.   The outcome from Stage 2 was provided on 2^nd June 2015, and again Stage 3 states that following receipt of the complaint a Meeting will be arranged to discuss the matter not later than seven working days.   The Trade Union said a grievance process that should have conservatively completed by mid May was dragged out until the final outcome was received on 27^th October 2015, when the Complainant received the Chief Ambulance Officer’s letter.

The Trade Union said the delay is unacceptable and it added to the stress experienced by the Complainant.

The Trade Union said that even though the Complainant is on a panel for a permanent transfer to the Area she lives in and even though she sought a transfer to closer to her home on compassionate grounds in order to allow her to breastfeed her child, she nonetheless accepted the Employee Relations Manager’s recommendation for consideration of a temporary transfer.   She, at the time, believed that this proposed temporary transfer would be accepted by the Respondent and believed it would allow her to continue breastfeeding her child and allow a window of opportunity to pursue a permanent transfer.   The Complainant was deeply upset and disappointed when the Chief Ambulance Officer decided not to grant her a temporary transfer as recommended at the Stage 3 Appeal Hearing.   The Trade Union said it is an appalling situation when a female employee cannot be accommodated with a transfer nearer to her home to assist her to breastfeed her child.

The Trade Union said that the Complainant went on half pay sick leave on 17^th February 2016 and this is causing her financial difficulty.

The Trade Union said the Complainant is seeking that she should be granted a transfer to her home Area to allow her to continue breastfeeding her child until he is 2 years old.   She is also seeking compensation for the undue delay by the Respondent in dealing with her grievance.

Based on the foregoing the Trade Union and the Complainant sought a favourable recommendation.

Summary of Respondent’s Position:

The Respondent said the Complainant and her Trade Union contends that she has been denied a transfer to her home Area on compassionate grounds that would enable her to continue to breastfeed her child following her return to work from maternity leave.

The Respondent said the Complainant is employed by them as a paramedic within their Ambulance Service, and she is currently employed as a non rostered relief employee based in a named location and also covering surrounding area.

In December 2014, the Complainant went on maternity leave.   On 30^th December 2014, the Complainant’s son was born prematurely and he weighed 4lbs 3 ozs.   Following medical advice she decided to breastfeed her child.

In March 2015, the Complainant submitted a request to her Operations Manager to be considered for a transfer on the basis that it would enable her to continue breastfeeding her child following her return to work; she requested that this be progressed through the Grievance Procedure if an informal solution could not be found.

The Respondent said that the Complainant’s managers are fully supportive of her and her decision to breastfeed her child.   They said there is an obligation on them as an employer to do all they can to facilitate and encourage breastfeeding.   The Respondent said that in this respect, while unable to offer her a temporary transfer due to the exigencies of the service, they did offer to extend the entitlement to breastfeeding to her child’s first birthday.

The Respondent said the Trade Union will argue that the Complainant was approved for a temporary transfer closer to her home to allow her to continue to breastfeed her child; however, they said this is not the case.   The Employee Relations Officer recommended that management should give serious consideration to a temporary transfer until her child’s first birthday and he also stated that if this was not possible, due to serious demands, other supports should be explored with her.

In October 2015, the Chief Ambulance Officer in the Area the Complainant worked, wrote to her regarding her application for a temporary transfer.   In this letter, he informed the Complainant that her request had been considered by the team with responsibility for compassionate transfers, however, the overall decision lay with him and he stated that he was unable to grant her a temporary transfer as it would impact on service delivery within the Area.   He did offer to move her to the nearest base within the Area to her home and to allow her to avail of a paid one hour break at the start or end of her shift, until 1^st January 2016, following her child’s first birthday.   He also offered to meet with her to discuss the matter, but she did not make any attempt to meet with him.

The Respondent said that the Complainant has not resumed work following her maternity leave, which commenced in December 2014.   Currently she is on sick leave citing work related stress resulting from the situation.   Management have offered her supports and arranged to facilitate her with an appointment with Occupational Health in her Area, to expedite her return.  

The Respondent said that however she has not attended Occupational Health and has not contacted them to inform of her reasons for not attending.   The Respondent said that this is a very frustrating situation for them and they are very anxious to get her back to work after such a lengthy absence.

The Respondent said that the Complainant, though aggrieved by not getting a transfer following the birth of her child, has been facilitated with the offer of breastfeeding entitlements to her child’s first birthday.   The Respondent said that this is a reasonable accommodation considering the demands on the service and the statutory obligation of 6 months.   The Respondent said the Complainant was aware when she took up the job where her base was and that transfers are subject to service provision.   The Respondent said that management must consider service demands along with employee welfare when making such decisions.

In light of the foregoing and all the circumstances the Respondent sought that the claim be rejected.

In discussion the Respondent confirmed that there was no vacancy in the area the Complainant lived in and sought a transfer to, nor were there any vacancies in the next nearest area; there is a full complement of WTE’s in those areas.   They further said the Complainant could pick her shifts to work every second day, with a pattern of 34/35 hours per week without any loss in pay.

Findings and Recommendation:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 13 of the Industrial Relations 1969 requires that I make a recommendation setting forth my opinion on the merits of the dispute.

I have carefully considered the evidence and the submissions made and I have concluded as follows.

I note that it is a regrettable fact that there is no vacancy in the area to which the Complainant seeks to transfer, nor indeed are there any in the next nearest area, both of these areas are fully staffed with a full complement of WTE staff, there simply is no job or position in these areas to which the Complainant can be transferred.     In circumstances where there is no available position, vacancy or work available in the area to which the Complainant seeks to transfer it is not feasible or possible for me to recommend that she be so transferred and I must reject that element of the claim.

I further note that the Complainant was not merely seeking a temporary transfer, but is seeking a permanent transfer.   In that respect she is being treated no differently than any other employee seeking a transfer, and in common with all of her colleagues she is on a transfer list (at No.9) and will have to wait until her turn comes up to fill any vacancy, she cannot expect to be treated differently or more favourably than any other employee on that list in that respect.    I also note and accept the point made by the Respondent that the Complainant when she took up her post as a paramedic was fully aware where her base was and that she would have to take her place on a panel for transfer from that area and that such transfers are subject to service demands and provisions.

In relation to whether or not there was undue delay on the part of the Respondent in dealing with these matters, I note the following.

The Complainant formally referred this matter to her Line Manager, the Station Operations Manager on 26^th March 2015 and she received a final response from the Chief Ambulance Officer on 27^th October 2015.   This is a period of 7 months for a matter that in accordance with the Respondent’s own Grievance Procedure should only take no more than a maximum of 6 weeks to 2 months, thus it was delayed by more than 5 months.

I accept that this represents, by any standard, an undue delay on the part of the Respondent in dealing with these matters, that was in breach of the timelines laid down in the Respondent’s own Grievance Procedure, that was unreasonable and unfair to the Complainant and caused her stress, and I accept that the Complainant is entitled to compensation in that respect.

Based on the foregoing I recommend the following as a full and final settlement of the claim.   I reject the claim of the Complainant for a transfer to the Area in which she lives for the reasons stated above and I recommend that the Complainant accept that she must accept her place on the transfer panel on the same basis as any other employee.

I recommend that the Respondent pay the Complainant compensation in the sum of €2,5000.00c for the undue delay by them in dealing with these matters.   I wish to confirm that this sum is not wages or arrears of wages, but rather is compensation for the tardy way the Respondent dealt with this matter.

I wish to state that this recommendation is peculiar to the unique facts and circumstances of the instant case and it cannot and will not be used or quoted by either party or any other party in any other case.

I so recommend.

Dated: 9^th August 2016