EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD257/2015
CLAIM OF:
Margaret Hoban
against
Kildare County Council
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms V. Gates B.L.
Members: Mr. L. Tobin
Mr. S. O'Donnell
heard this claim at Dublin on 3rd May 2016 and 18th July 2016
Representation:
_______________
Claimant: Mr Brian Gorman, Impact Union, Nerneys Court, Dublin 1
Respondent: Mr. Eamonn Hunt, Local Government Management Services Board, Local Government House, 35-39 Ushers Quay, Dublin 8
Background:
The claimant MH worked as a Grade 4 employee in county council offices. She resigned her position and took cost neutral early retirement when denied access to a career break. The purpose of the career break was to attend a full year Masters in Music in Limerick University.
Claimant’s case:
The claimant told the Tribunal that she worked for the respondent in numerous positions during her tenure. She was approached by the Director of HR and asked to join a new team venture which was being established (namely a Procurement team). She was happy to take on a new challenge and give it her best. None of the team had procurement training and an IPA course was identified which she and another member of the team (a civil engineer) attended. They received diplomas two years later.
Two of the members of the team moved, leaving only the claimant and one other grade 4 in the Procurement Unit, answerable to a Team Leader. The claimant said she was lucky to be offered an opportunity to attend a prestigious Masters Programme in Limerick University. She applied for a career break for one year but was refused on the grounds that there was no other equivalent trained in procurement. She appealed the decision and that was also refused. The claimant said she felt that doing her procurement training had “become a stick to beat her with”. She was offered job sharing at 2.5 days per week but said that the course was for four days a week which did not suit. She gave evidence of loss.
Respondent’s case:
COG a senior HR executive with the respondent told the Tribunal that the claimant’s contract of employment provided no automatic entitlement to a career break. It clearly stated that career breaks are at the discretion of the Authority and subject to organisational requirements. Each application is dealt with on its own merits.
She gave evidence of the staff numbers at the relevant period and also the cap on recruitment that applied following a 2009 Government Directive. The claimant could not be released unless a like for like replacement was found, and, because of her skills and diploma it proved impossible. COG said that the claimant appealed the decision to the Chief Executive but was again refused.
The claimant was asked to look at a job-sharing arrangement and the respondent tried to work with her as best they could but to no avail.
Determination:
The claimant was employed by the respondent from February 1999 until September 2014 when she took cost neutral early retirement. The claimant submitted to the Tribunal that she had been forced to avail of the early retirement scheme in circumstances wherein the respondent acted unreasonably, unfairly and arbitrarily in refusing her application to take a career break for educational purposes and that therefore she had been constructively dismissed. The respondent submitted that, at all material times in considering the claimants application, it had acted fairly and reasonably in applying to the claimant’s application the criteria governing the entirely discretionary scheme in which public sector employees are entitled to apply for a career break and in the refusing to grant the same.
Having considered all of the evidence and the circumstances of this case, the Tribunal finds that the respondent operated fairly and reasonably within the terms of the contract of employment and within the parameters of the career break scheme operated by the respondent.
No constructive dismissal occurred in this instance and, accordingly, the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)