FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE - AND - A WORKER (REPRESENTED BY UNITE THE UNION) DIVISION : Chairman: Mr Foley Employer Member: Ms Doyle Worker Member: Ms Treacy |
1. Appeal Of Adjudication Officer Recommendation No(s). ADJ-00012032 CA-00016072
BACKGROUND:
2. This case is an appeal of an Adjudication Officer’s Recommendation by the Worker. On the 26 July 2018 the Adjudication Officer issued the following Recommendation:-
- "The complaint is without merit, and it is dismissed."
DECISION:
The Court has given very careful consideration to the written and oral submissions of the parties.
The Claimant completed a three-year incentivised career break on 22ndJuly 2016. She returned to work on 3rdJanuary 2017. She maintains that she should have been returned to work earlier because there was appropriate work available to her in her location of work. She seeks payment of retrospective pay covering the period of delay.
The employer submits that it operated the incentivised career break scheme correctly as written. It stated to the Court that no approved vacancy existed in the location between 22ndJuly 2016 and 3rdJanuary 2017 and consequently the Claimant could not have been placed into an approved role. It maintained that it offered the Claimant the opportunity to work ad-hoc hours in the period or in the alternative the opportunity to take up work in another location. The employer maintains that both such offers were refused.
The Claimant disputes that she was offered any work by the employer during the period and in fact submitted that she offered to work ad-hoc hours but that her offer was refused.
The Court has no basis for finding that an approved vacancy existed in the workplace in the period from July to December 2016. Therefore, the Court is unable to find, on the basis of a failure to offer the Claimant an existing approved vacancy, that the employer has operated the incentivised scheme other than correctly in that period.
The Court has been presented with a total conflict as between the parties’ positions in relation to offers of work, including of ad-hoc hours, in the period. The Court is unable to resolve that conflict and can make no finding in that respect.
The Court notes that the scheme makes no provision for payment of retrospective pay to employees who are delayed in returning to work following the completion of their career break and notes that the potential for such delays is highlighted in the written terms of the scheme. Neither party was able to provide the Court with an example where such retrospective payment was made.
In all of the circumstances the Court does not recommend concession of the claim.
The Court so recommends.
Signed on behalf of the Labour Court
Kevin Foley
CC______________________
10 April 2019Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ceola Cronin, Court Secretary.