ADJUDICATION OFFICER DECISION

 A Worker -v- A Respondent (Healthcare Sector)

Adjudication Decision Reference: ADJ-00003150

Complaint for Resolution:

Date of Adjudication Hearing: 13/07/2016

Workplace Relations Commission Adjudication Officer: John Walsh

Venue: Ardboyne Hotel, Navan, Co. Meath

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and under section 30 and 31 of the Maternity Protection Act 1994 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.

Background:

The Complainant was employed as a care assistant over two periods;

• 29^th of August 2012 to the 19^th of January 2015

• 26^th of March 2015 to the 17^th of May 2016.

She alleges that she was constructively dismissed by the Respondent after she returned from maternity leave. She alleges that her position was filled by a new care worker and that her rota was changed significantly from what it was. She filed a complaint under Section 30 and 31 of the Maternity Protection Act 1994 with the Workplace Relations Commission on the 18/5/16.

Complainant’s Submission:

The following is a summary of the Complainant’s submission;

That she went on maternity leave on the 1^st November 2015. That when she returned she found that her position had been filled by a new care worker. That she covered the areas of Stamullen, Gormanstown and Julianstown between herself and a work colleague on a rota basis where the shifts were split each week. This rota was no longer available to her. She brought the matter to the attention of Human Resources and they advised her that they would look into the matter and come back to her in a few days. She waited for over a week but still heard nothing. Her usual working hours, before she went on maternity leave were 20-30 hours per week. When she returned to work from maternity leave she found that she only received 3-4 hours per week. Her supervisor clearly stated to her, when she was going on maternity leave that the same position would still be there for her when she returned. When she could get no satisfaction relating to her complaint, she was left with no option but to hand in her resignation on the 17/5/16. She had complained to Human Resources in an e-mail some weeks before but they never followed through on her complaint. She feels she has been unfairly treated and now has to go looking for a new job.

Respondent’s Submission:

The following is a summary of the Respondent’s submission;

As a provider of homecare within the community, we build a relationship with the client and family which we try to maintain as much as possible. Due to this relationship building with the family and client, it can be difficult for a carer who has been off for several months to realise that we may be unable to return them to their previous clients and many of our elderly clients are uncomfortable with change.

The contract of employment issued to the Complainant is based on a casual status and gives no guarantee that hours will be available. The nature of our work means that there may be periods where no suitable work is available. This may be due to several factors;

-client deceased

-client in respite care

-client no longer requiring homecare

-client has moved to another provider

Due to the nature of the business, it is not always possible to keep employees working with the same clients. As per the reasons listed above, we facilitate the necessary information going to the Department of Social Welfare as and when required by carers who are working less hours.

The complainant joined the company on the 29^th of August 2012, working in a particular area (Details supplied). By the start of January 2015, the Complainant was working an average of 10 hours per week. On the 19^th of January 2015, the employer received the Complainant’s resignation stating to the lack of hours available to her and the offer of employment elsewhere, she was giving notice.

In March 2015, two months after her resignation, the Complainant contacted the employer to apply for her job back. The Complainant was fast tracked through the process and a new contract of employment was issued and signed by her on the 26^th March 2016.

The complainant worked within the same area and by the start of her maternity leave which commenced on the 1^st of November 2015, she has five clients as below;

1. M.M.

2. T.S.

3. M.R – no longer a client of the employer

4. J.B – deceased

5. L.B.

The Complainant was working an average of 16.5hours per week dependent on her clients. On the 1^st November the Complainant went on maternity leave. The remaining clients, which the Complainant cared for as above, would have been allocated to another available carer in the area and the Complainant should have been advised that there was no guarantee that she would return to the same clients at the end of her maternity leave which would be the 1sty May 2016 unless she notified us otherwise.

The Complainant contacted the service support desk on the 21^st of April 2016 to query when she was due back to work. She thought it was on the 26^th of April. This information was passed to the regional service manager who contacted her and got her shadowed into a rota on the 22^nd of April. On the 5^th May 2016, the Complainant sent in an e-mail stating that she was unhappy that she did not get the rota back which she had been on. She was advised that the matter would be looked into. Having reviewed the matter, it was clear that the Complainant had failed to give the organisation four weeks’ notice of returning to work. However, she was accommodated as she was keen to get back to work. The regional service manager allocated the following hours to the Complainant for the following weeks;

Week 1; 25^th/4- 1/5 = 7.15 hours- first week back to work

Week 2; 2^nd/5 -8^th/5= 15.3 hours

Week 3; 9/5-15/5 = 19.3hours – the Complainant was also scheduled for additional hours which she decided she could not complete.

The Complainant was also offered additional hours as acting supervisor in the area until a new service team leader had been appointed. At the same time, she was advised she could apply for the role. She declined both. The Complainant was given travel expenses to cover some calls to make up the difference in location as this would not have been her normal area.

The Complainant resigned on the 17^th of May 2016. She was requested to rescind her resignation and allow us to source more hours in a regular pattern that would suit both her and the clients. She declined this offer.

Findings:

The Complainant’s contract of employment under hours of work state;

‘Your normal hours of work are variable each week, as rostered Monday to Sunday, the hourly rate of pay takes into account the fact that the employee will be required to work on Sundays. You may also be required to work additional hours when authorised and as necessitated by the needs of the business.

Your hours will be determined by mutual agreement. The employer will give you as much notice as possible of the hours of work available to you.

You have the right to refuse or accept these hours. You are not expected to be on call for work and will not be paid an allowance for same. The refusal of hours on your behalf will have no negative consequences on hours being offered to you in the future.

Your hours of work may vary from week to week and the employer gives no guarantee that hours will be offered to you on a weekly basis. The nature of your role means that there may be periods when no suitable hours are available and the employer shall incur no liability should it fail to offer opportunities to work. There may be extended periods of time, when high volumes of work, if available, followed by periods of time where no work is available. This shall in no way give rise to implied term of a guaranteed minimum amount of working hours.’

I find that the Respondent fully complied with the Complainant’s contract of employment in relation to hours of work. I also find that the Respondent made every effort to find work for the Complainant when she returned from maternity leave one month early. In my view there was no need for the Complainant to resign from her position based on the terms of her contract of employment.

Decision:

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

Based by the evidence presented by both parties at the hearing, I find that this complaint is not well founded and therefore fails.

Dated:   7^th November 2016