ADJ-00010563

ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00010563

Parties: 

Complaint(s):

Date of Adjudication Hearing: 08/01/2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 13 of the Industrial Relations Acts 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. 

Background:

The Complainant was employed as a senior executive engineer since December 2006. He applied for but was refused a career break for two years under the organisation’s career break scheme. He maintained that the basis for his refusal and the handling of his appeal by the Respondent was unreasonable. The Complainant is seeking to be granted a career break and compensation for the manner his application was handled.

Summary of Complainant’s Case:

The Complainant submitted that he met with his manager on 26th July 2017 and informed him that he was formerly applying for a career break under the terms of Circular LG (P) 2015. The Complainant submitted his career break in writing and stated in his application that the purpose for the career break was to travel. He further advised that he intended to take up an overseas two-year employment contract related to his speciality. In his letter the Complainant advised that should his application be rejected he would like to make a personal presentation to the Chief Executive. 

The Complainant advised that on 31st July 2017 his application was rejected. He was advised that the sole reason for the rejection was a refusal of the Human Resources Department to sanction a permanent replacement for his position during the career break. 

On 9th August 2017 the Complainant appealed this decision to the Acting Chief Executive. In his appeal the Complainant maintained that not replacing him was insufficient grounds to deny his request and where he proposed an arrangement for the provision of temporary replacement and the reallocation of staff resources might be an option. He also maintained that he had been advised by his Director of Services that the overseas job would be considered beneficial, and he attached an outline of the job description in his appeal. The Complainant maintained that the experience he would gain would be invaluable on his return to the Local Authority as well as beneficial to his personal and career development, and his health. He advised in his appeal letter that should the Acting Chief Executive be inclined to turn down his application he would appreciate if he could make the personal presentation in advance of any formal decision. 

On 18th August 2017 the Complainant was advised that his appeal was not approved and he was not recommended for a career break. 

The Complainant maintained that the Local Authority’s policy of non-replacement of those who take career breaks was contrary to the government’s family friendly and flexible work policies, and the Councils own commitments in its corporate plan to provide a flexible quality working life. He also submitted that the appeal process was procedurally unfair maintaining there were serious questions about how it was handled. 

With regard to the non-replacement criteria which precluded the Complainant from having a favourable review of his career break, the Complainant maintained that the Circular that lays out the conditions for career breaks, and the decision to grant or refuse a career break to an applicant should be based on the organisational needs of the Local Authority. Whilst he advised that organisational needs were not defined in the Circular, he submitted that the conditions extend beyond the operational requirements to that of the duty of care to employees and the need to promote career development and enhance organisational learning. He advised this was part of the organisation’s corporate plan, and where the local authority stated it would promote a culture of respect for the diversity of employees, and provide them with a flexible quality working life. He also submitted that the corporate plan also set out other objectives relating to equality and human rights issues that may be relevant to the functions and purpose of the organisation. 

The Complainant advised he was not informed in writing of the reasons for the refusal of his career break. He maintained that he was verbally informed on 25th August 2017 in a meeting with his manager. He was advised the reason for the refusal was due to a stated policy at a full management team meeting that no replacement, either temporary or permanent, would be allowed in the event of an application for a career break. The Complainant submitted that he had made numerous requests for written reasons and records of discussions of these decisions by the management team, including an FOI request but no formal record of this replacement policy has been provided to him. 

The Complainant further submitted that the opportunity to make a personal presentation in advance of any formal decision had been rejected and he was therefore treated unfairly by not being offered the opportunity to do so. The Complainant also argued there were inconsistencies in relation to the communication between management with regard to the decision to reject his application for a career break, and the failure of the Local Authority to provide him with details of telephone conversations with regard to the decision-making relating to his application. The Complainant submitted that despite making an FOI request to gain access to the records he was not provided with a reason or with the documents that supported the decision regarding his appeal. He maintained that phone records and details of conversations/meetings relevant to the application have not been provided despite written requests from him both personally and under FOI. 

With regard to the criteria for replacement, the Complainant argued that having been refused a career break he resigned, but since then there has been no replacement for him and his duties have been reassigned to a number of other employees. He therefore questioned that if his work was that vital to the organisational needs why the vacancy has not been filled following his resignation. 

Summary of Respondent’s Case:

The Respondent maintained that the Complainant Held an important role where he managed staff, and an entire national programme for the Local Authority which in 2017 involved budget of up to €1 million, and that has now been increased to €4 million. The Respondent submitted that the Complainant played a pivotal role in the management of the area and the operation of a technical analysis and assessment group which examines and makes recommendations that can have a direct indication for public safety. On that basis, it maintained the role filled by the Complainant, and its responsibilities, were intrinsic to the delivery and achievement of core objectives for the Council.

The Respondent further submitted that in light of the improvement in the economy it has become more difficult to recruit engineers, and in particular it will be very difficult to attract a suitably qualified engineer to the role on the basis of a temporary contract of two years for the period the Complainant was participating in his career break. It maintained that it considered the application and in light of the challenges of fulfilling the role for a short period in his absence, and the importance of the role it was not in a position to grant the Complainant a career break.

The Respondent maintained there was no automatic entitlement to a career break, and the granting of a career break is at the discretion of the Local Authority subject to organisational requirements, and where each application is dealt on its own merits. It advised that the application was sent to the relevant Director of Services for review who rejected the application and where the Complainant was informed by way of letter dated 31st July 2017 that “as I cannot fill the vacancy created by an employee in a career break, I cannot recommend the granting of this career break application while (the Complainant) is employed in (the named directorate).

The Respondent confirmed the Complainant appealed the decision in line with the circular to the Deputy Chief Executive on 9th August 2017 where the Complainant put forward that replacing him was insufficient grounds to deny his request, that the two-year fixed term senior management public sector position he was taking up overseas would be considered beneficial, where the skills he would gain from this experience would be invaluable on his return to both the Council and to his personal and career development, and for his health. The Respondent advised that on 17th August the decision was made by the Deputy Chief Executive to reject the appeal, and where the Complainant was advised by letter dated 18th August 2017.

The Respondent advised that it had handled the application for the career break and the subsequent appeal in accordance with the circular letter which states that “ 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 the respective Local Authority”. In this regard the Respondent advised that it had received a total of 12 applications since 2014, and from these requests only two have been approved and 10 were refused. It further advised that for those applications that were refused all 10 were appealed whereupon only three were granted and seven were refused due to operational needs.

Referring to UD257/2015 Margaret Hoban V Clare County Council, the Respondent argued that the within case is comparable, and where the Tribunal on that occasion had upheld that for a career break which is put forward in line with the correct policy and refused, that the Council had operated fairly and reasonably within the terms of the contract of employment, and within the parameters of the career break scheme. The Respondent maintained it had adhered to its procedures in deciding to refuse the Complainant’s application, and its decision was consistent with the Tribunal’s findings.

The Respondent maintained that it was not in a position to provide the Complainant with a career break due to operational reasons, and to do so would set a precedent for granting career breaks and creating a vacancy for an operational role it could not adequately fill on a temporary basis in his absence.  

The Respondent submitted that as it had not breached its procedures there was no grounds for compensation or other redress for the Complainant.

Findings and Conclusions:

Having considered the situation I am satisfied that the Respondent applied it’s career break scheme in accordance with its procedures and appears to have applied objective criteria with regard to the refusal to grant the Complainant the career break. This refusal was based on operational reasons and on basis that the short-term absence of the Complainant would make it extremely difficult to fill the role to the level and experience required.

Having reviewed the documentation submitted I am also satisfied that the Deputy Chief Executive did consider the matter on 17th August 2017, where a dated handwritten note is recorded on the Complainant’s appeal letter and where this was dated the day before a decision to reject the appeal was sent to the Complainant on 18th August 2017. It is acknowledged that a review of the records would indicate an inconsistency with regard to the date when the advice from the Director of Services was provided to the Deputy Chief Executive as a note was generated by the Director of Services on 31st August 2017, rather than 17 August 2017 which was the time the Deputy Chief Executive made his decision. Notwithstanding, I am satisfied that this note would be consistent with earlier correspondence with the Complainant, and I do not find it represents any untoward decision making took place with regard to the Complainant’s application for a career break. 

It is noted that the Complainant had sought to make a presentation to the Chief Executive with regard to the benefits of the career break to both the organisation and himself, but that the Deputy Chief Executive who heard the appeal neither acknowledged the Complainant’s offer to meet with him, or decided to hold an appeal hearing with the Complainant. Whilst it is probable that such a hearing may not have changed matters, in light of the significant role held by the Complainant, and the fact that the Local Authority had concerns that his departure would make it extremely difficult for the Local Authority fill the role temporarily, it is likely that had the Complainant been afforded a meeting to be heard during an appeal process, that he would have been provided with an opportunity to understand the basis of the decision and may not have begun drawing the conclusions he did which necessitated the Complainant submitting an FOI request. Providing a hearing appears consistent with the proper management of a grievance procedure, and under the circumstances of this case would have been time well spent, and perhaps would have avoided the need for the Complainant to refer his grievance to an independent third-party referral process.

Recommendation:

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

Having heard the evidence presented by the parties I am satisfied that the basis of not granting a Career Break to the Complainant was objective and therefore not unreasonable.

However, I find that the handling of the appeal by the Local Authority was unhelpful, in that the Complainant was not afforded a specific response to the issues raised in his appeal. On that basis, and in circumstances where an appellant seeks a specific response, it would be deemed good practice to respond to the specific issues raised, and for the Local Authority to demonstrate that the nature of the appeal is actually heard and responded to. Accordingly, I recommend that specific reasons for refusal for a career break be provided to all future appeal applicants. 

Dated:   19 April 2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Key Words: Career Break. Appeal Hearing