ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001430

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 26/10/2016

Workplace Relations Commission Adjudication Officer: Shay Henry

Procedure:

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

Complainant’s Submission and Presentation:

IMPACT Trade Union employs nearly one hundred staff throughout the country, the majority of which are recruited from its own membership. The union has enjoyed a 100% support from management in local authorities in facilitating staff who have obtained employment with the union. In September 2015 the complainant, a Clerical Officer (Grade 3), was offered a three year fixed term contract as an Industrial Relations Officer (Grade 7) and he sought to take up the post by way of career break or secondment.

The respondent notified the complainant by letter on 2^nd November 2015 that he would not be granted a career break as ‘a career break cannot be granted for the purpose of enabling an employee to take up alternative employment within the State except in exceptional circumstances’. The letter went on to say that the Chief Executive did not consider the purpose for which the complainant wanted to take a career break to be exceptional. The respondent also declined the request for secondment.

The union wrote on 4^th November in response, appealing the decision on the grounds that;

The Career Break scheme had been amended in October 2015 to enable staff to take up employment within the state; and

The respondent could view the matter as exceptional.

The union reiterated this request by letter of 25^th November 2015. The respondent by letter dated 27^th November again declined the request referring to reduction in staff and stated that ‘The filling of vacancies arising from the granting of career breaks in a temporary capacity is not in the best interest of consistency and sustainability’.

Staffing levels were not cited in the original refusal. It should also be noted that the CEO was cited in this letter as the decision maker. As he was involved in the original decision he should not have been involved in the appeal.

The CEO of the respondent also replied by letter on 27^th November taking issue with the threatening tone of the union’s letter of 2^nd November. It is the union’s contention that the CEO’s reaction to the letter was a very significant factor leading to the decision to deny the career break/secondment to the complainant.

The complainant took up the position with the union on 21^st January 2016.

The complainant is one of 60 Clerical Officers in the respondent local authority. In or around the same time that his request was declined, another member of staff in the Systems Analyst Grade (of which there were 3 employed) was approved on appeal. The respondent’s argument that they could not sustain a temporary Clerical Officer position does not stand up in consideration of the fact that they could sustain a Systems Analyst post on a similar basis. Furthermore, when the complainant left employment the respondent did not fill the position for several months.

Respondent’s Submission and Presentation:

The complainant was an employee of the respondent as a Clerical Officer from 2 April 2007 until he resigned voluntarily on 20^th January 2016.

His application for a career break was considered under Circular Letter LG(P)5/2015 which states ‘The decision to grant or refuse a career break to an applicant will be the decision of the Chief Executive and should be based on the organisational needs of their respective Local Authority. (sic)’

The decision to grant career breaks/secondments is entirely at the discretion of the Chief Executive who has autonomy in these matters.

The request for a career break was refused on the basis of the organisational needs of the respondent. In the context of the already significant reduction in staff the council could not facilitate the request. The filling of vacancies arising from such breaks in a temporary capacity is not in the best interest of consistency and sustainability.

The complainant’s contention that he was unfairly treated when compared to other staff is incorrect. Another member of staff’s request was refused a short time after the complainant’s application was refused.

By virtue of the powers invested in him by the Local Government Acts the Chief Executive accepted the voluntary resignation of the complainant and signed an official Order accepting his resignation and his decision in this case is final.

Decision:

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 Act 1969 requires me to make a recommendation in relation to the dispute.

Issues for Decision:

The original complaint referred to me for recommendation referred only to the question of the refusal to grant a career break/secondment. Problems regarding release for meetings and a request for transfer were raised at the hearing. As these latter issues did not form part of the original complaint I will not recommend in relation to them.

Conclusions:

In the first instance the respondent considered the request for a career break under an earlier career break scheme which provided that ‘a career break cannot be granted for the purpose of enabling an employee to take up alternative employment within the State except in exceptional circumstances.’ At the hearing the respondent clarified what constituted ‘exceptional circumstances’ and stated that an exception might be granted if the purpose of the career break ‘had advantages for the local authority or for exceptional personal reasons to the applicant’. The respondent also stated that the same criteria would apply to a request for secondment.

It has been the accepted practice throughout the public sector that collective bargaining with various unions is the primary method of determining terms and conditions of staff. The mainstream role of unions was further underscored in the partnership process which was actively supported by government policy, and applied in all local authorities. Given this positive relationship with unions it is reasonable that the request of the union for the career break/secondment facility could have been construed as to the advantage of the local authority and viewed as meeting the requirement of ‘exceptional circumstances’ as it clearly had been viewed in other public bodies facing similar requests.

The appeal was considered in light of the new agreement on Career breaks which omitted the restriction relating to the taking up of alternative employment within the state. The respondent has relied on the provision in the scheme which states ‘The decision to grant or refuse a career break to an applicant will be the decision of the Chief Executive and should be based on the organisational needs of their respective Local Authority. (sic)’ The respondent has contended that the decision to grant career breaks/secondments is entirely at the discretion of the Chief Executive who has autonomy in these matters.

The Career Breaks Scheme was negotiated on behalf of all local authorities and applies in every local authority. The Scheme was agreed In October 2015, in the full knowledge that many local authorities had suffered reductions in staff during the course of the economic downturn and recruitment embargo. Clearly these general reductions in staff were not of themselves considered to be sufficient reason to deny a request for a career break; otherwise the scheme would not have been put in place. The general discretion given to Chief Executives must be seen in that context. There is an agreed career break facility available to staff in all local authorities and, unless there are strong reasons particular to an individual local authority that are not prevalent elsewhere, or that were not anticipated by the scheme, requests should generally be granted.

The complainant was a Clerical Officer (Grade 3) an entry level grade with generic skill/competency requirements. If a post holder at this level were refused a career break on the basis that the removal of the expertise he or she possessed would impact greatly on the organisation, it could be argued that the individual was wrongly graded and should have been at a more senior level. Inevitably, when an individual has been in a position for a prolonged period of time, if that individual moves on, there will be an impact on ‘consistency and sustainability of service’ in the organisation until the replacement gains experience. This would be a consequence in most cases where a career break was granted or indeed if the post holder moved on for any other reason. The question is whether or not the impact would be so great as to justify turning down any individual request. In my view, as the complainant was at Grade 3 level, one of sixty such posts in the organisation, there should have been no such level of impact in this case and it was unreasonable to adopt a position that an entry grade such as Grade 3 could be indispensable. The career break therefore should have been approved.

Recommendation:

As the respondent has emphasised that the complainant cannot be re-employed I recommend that the respondent pay the complainant €10,000 as compensation for the unfairness of its treatment to him, which not being an award of wages is not subject to tax.

Dated:   22 November 2016