Complainant

Respondent

Anonymised Parties

A chef

A Hospital

Representatives

Niamh McKenna of Niamh McKenna Solicitors

Pembroke Solicitors instructing Tom Mallon B.L.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00008170-001

14/11/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00008170-002

14/11/2016

The Complainant is a highly competent chef and has Grade I Management status within the Respondent body which is a private sector body. The complainant is with the Respondent Hospital since 1994 and had therefore accumulated 22 years of service by 2016. Over the years the Complainant had adjusted the way in which she works so as to fit in with her changing circumstances. The Complainant started on the Grade II salary scale doing a full 39 hour week and subject to working on weekends and Bank Holidays – per the 1994 Contract of Employment.

The Respondent is a hospital open year round and it is noted that the staffing numbers at the weekends are similar to those during the week. The Complainant achieved Grade I status in 2004 putting her at management level. In time the Complainant started her own family and was entitled to protective/maternity leave as well as other periods of parental leave. By 2009 the Complainant had sought and obtained an agreement from her Employer that she could work part time hours on a fulltime basis and in practise this meant the Complainant was working two or three days a week – and only mid-week days at that. There was no agreement per say that the Complainant would not work weekends this had just become the norm. The letter of the 10^th of February 2009 setting out the reduced 44.25 hour per fortnight does not purport to displace the Contract of employment and therefore it should only be read in conjunction with the said Contract.

There followed a further period of maternity leave and then another Maternity period started in 2011 which rolled into a second one due to end in 2013. Personal circumstances meant that the Complainant was obliged to look for a three year leave of absence rather than return to work in April of 2013 or on the expiration of her relevant parental leave. The Complainant found herself without a childminder and in charge of four small children. Her Employer acquiesced to this request even though the normal timeline for any application and granting of leave of absence was foreshortened by reason of the Complainant’s circumstances. The Respondent policy explicitly allows for Leave of Absence to facilitate employees reconciling work and family life (2.1 of the Leave of Absence Policy).

What is not in doubt though is that the Complainant knew of and had had sight of the Leave of Absence policy which specifies that the at the end of any such leave:

The Hospital will endeavour to return you to the same area and position. However this may not always prove possible and in such cases , a comparable position will be offered.

This commitment is further emphasised in the letter to the Complainant dated the 19^th of August 2013 wherein it states :

The Hospital will also as far as possible return you to the same area and position however it may not be possible to guarantee this in all cases.

Pursuant to the obligations set out in the Leave of Absence policy, the Complainant re-engaged with her employer towards the end of her leave of absence period. In fact that Complainant sought to return to the workplace a little earlier than the mid-August 2016 date.

It is noted that the Complainant states that her oral communication with the Head of Catering MP had struck her as a little unusual insofar as she says that MP had expressed surprise at her intention to return to work at all. This is denied by MP though even if it had been said it was presumably only in the context of any return to work after a five year period of absence as being a big decision in light of ongoing needs to reconcile work and family life. I do not believe the Complainant’s wish to return to work was in any way unwelcome to MP and it was her job to facilitate as smooth a return to work as might be practicable in all the circumstances.

It is noted that MP did request that communication should be in writing and this has proven very useful in the context of the within proceedings as the line of communication between the 4^th of March 2016 to the 27^th of October 2016 is clear and unambiguous.

In particular it is noted that in facilitating a return to the workplace MP was not readily in a position to slot the Complainant back into the arrangement she might have had before her departure. In fact the Complainant’s proposed 44 hour fortnightly schedule was now to include weekend shifts as well as the mid-week shifts the Complainant had heretofore worked. The new rota included working every second weekend.

The Complainant was not happy to work weekends as her domestic circumstances, she said, would not allow for this disruption to the “work life balance”. The Complainant stated that her husband frequently has to work at weekends.

The correspondence between the parties does become somewhat curt and intractable. The Complainant is demanding her pre-absence roster whilst the Employer is stating that over the period of absence there have been changes in the structure of the kitchen roster and that this fact in conjunction with personnel availability render it impossible to facilitate the Complainant’s demands and in this regard, brings the Complainant’s attention is repeatedly drawn to the fact that the Hospital cannot and did not at the time of departure guarantee a return to the same area and position as was heretofore enjoyed (Letter of the 3^rd of October 2016 from the Employer to Employee).

The parties do not attempt to work through this impasse and each gave evidence that the other did not look to ameliorate the situation. No compromise or alternative options were looked at or considered.

On the 27^th of October 2016 the Complainant wrote to MP stating she is utterly dejected and disappointed by the failure to facilitate the return to work. The Complainant states she cannot agree to the unilateral changes made to her working roster and believes she has no option other than to resign.

I have been urged by the Complainant’s representative to reject the Employer’s argument that the request for and the granting of a leave of absence gives rise to an unsettling of the rostering agreement reached in February of 2009 – wherein the Complainant would be allowed work a three day week. I have been asked to consider that – even though the said letter of the 10^th of February 2009 is in fact silent on the issue of mid-week work only - the practise had been to give the Complainant three long working days mid-week which gave her her weekends at home with her family and that this arrangement should have been honoured when she re-engaged with the workplace after the extended absence therefrom.

I have been asked to interpret Area and Position (as referred to in the leave of absence policy) as including the rostering arrangements that would have been applicable pre-departure. The Complainant argues that the changes in Roster as identified rendered the return to work as impossible and incompatible with the Guarantees set out in the Leave of Absence policy.

The Respondent on the other hand states that the Contract of Employment which operated at the commencement of the employment relationship is still operable. This Contract specifically allows for the scheduling of weekend and Bank Holiday work. It is conceded that over time the Complainant had reduced to part time work and that whilst in practise she might have been scheduled mid-week this was not guaranteed to her.

In addition, the Employer has asked me to consider that the Complainant knew or ought to have known that she was on risk of changes being made in circumstances where she takes a voluntary leave of absence and that this could not have been made any clearer than it had been in the leave of absence policy which makes absolutely no guarantees as to how the return to work will operate save insofar as every effort will be made to organise a return to work in the same area and position – both of which have in fact been achieved.

The Respondent has pointed to the realities of an ever changing work landscape which must allow for things to change even when persons are out on leave. It would be unreasonable for the Complainant to expect the workplace to remain static to ensure that everything is as it was before she left. The Complainant knew that this would be impossible and took that risk . All her Employer could do was guarantee she would have a job to come back to, it was not for the employee to dictate the exact terms of the job description (other than in the most general terms) on her return.

The Respondent additionally pointed out that the Complainant’s Management grade and talent was such that in response to the need to place employees to the greatest effect had meant that rostering her onto every second weekend was the best use of her skillset.

I have carefully considered the evidence I have heard and the booklets of documents that I have been presented with. I have additionally listened to the able representation made by legal representatives.

I am satisfied that the Complainant should have understood that she could not dictate the manner and circumstances of her re-entry into the workplace after what had in fact been a five year gap. It is not reasonable that she would expect she would seamlessly take up her pre-existing rostering arrangements without any reference to how work practices and structures might have changed in the intervening years.

It is regrettable that the parties did not engage with each other, other than in the manner of drawing a line in the sand. They never attempted to explore a compromise or an alternative or indeed a drop by the Complainant back to Grade I status (had she been interested). It was revealed in evidence that the   Complainant had never discussed with her husband the practicalities of how they might manage with her working on alternative weekends.

It is difficult in those circumstances to see how the Complainant could say that she had no alternative other than to resign. The fact of the matter is that she did not propose or look to propose alternatives. I cannot in the circumstances find that the Complainant was Constructively Dismissed

The Complainant’s claim under the Unfair Dismissals legislation fails

The Complainant’s claim under the Employment Equality legislation was withdrawn by her legal representative.