Complainant

Respondent

Anonymised Parties

A Cleaner

A State Agency

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00016072-001

30/11/2017

The complainant took a career break Between July 2013 and July 2016.

She gave notice of her intention to return to work but the respondent failed to find her a position for about six months.

This was despite the fact that, through reorganisation of existing staff resources it could have done so.

A number of offers were made which were unsuitable either because of the location she was being offered (not her original base) or the nature of the shift.

She seeks compensation for the delay in facilitating her return to work.

The respondent notes that the complainant did not comply with the notice requirements in the agreement governing the terms of her career break (hereafter The Agreement) in that she gave shorter notice than required.

Nonetheless, it made a number of offers to the complainant which did not meet her full requirements or which she could not avail of because of their location.

The complainant signed The Agreement on commencement of her career break (or shortly after).

It contains a provision (at section 27) as follows;

‘An employee who indicates s/he wishes to resume duty, will be assigned to the next appropriate vacancy to be filled following the expiry of the [career break], with a guarantee of re-employment in a relevant grade (not necessarily in his/her working location) within twelve months of the expiry of the [career break].

This is followed by some further clarification of what is meant by ‘appropriate’.

The respondent set in motion the wheels necessary to comply with this prior to her return date but it emerged that there was none at that time.

An offer was made to the complainant in August, one month after the conclusion of her break, of work which was less than her previous shift would have been, and also a full shift bat a hospital some distance a way which would have given er the full suite of weekend premium pay working.

This was declined.

The complainant also contributed to the delay by advising the respondent that she would be abroad for a month, although this turned out to be a shorter period.

In due course at the end of November, a vacancy was sourced and the complainant returned to work on January 3rd 2017.

The merits of this complaint are relatively straightforward.

The complainant signed an agreement which included terms governing her return to work which did not suit her at the point she decided to return.

The respondent complied fully with the terms of the Agreement and whether or not it could have done something sooner is not the issue (and I see no reason not to accept their submission that they could not facilitate the complainant).

Therefore, the complaint is without merit.

However, a further issue arises.

There was a good deal of disagreement about what happened between the parties in relation to communications between them over the various options for a return to work; issues indeed that should have been resolved between the parties long before any referral to the WRC.

It emerged that the complainant had not availed of the respondent grievance machinery, although there had been some trade union representations on her behalf.

This is not the same thing.

It is an absolute requirement that local or workplace machinery be exhausted before referral to the WRC under this legislation.

The respondent, which has the right to object to a hearing under this legislation, has some obligation to do so where this criterion has not been met.

It is undermining its own procedures by not doing so, as is the trade union in this particular case which is also, (presumably unintentionally), undermining its agreements with the employer and its own role at local level for the same reason.

The complaint is without merit, but even if it had any it would have been dismissed and referred for correct processing in accordance with the agreements and custom and practice which are the essential life blood of dispute resolution in the workplace.

I recommend that both parties ensure that the internal workplace machinery be exhausted before referral to the WRC under this legislation.

The respondent has the opportunity to, and should enforce this as outlined above.

The complaint is without merit, and it is dismissed.

Use of local procedures