Complainant

Respondent

Anonymised Parties

A Laboratory Technician

A Health Service provider

Representatives

Paul Hardy SIPTU

A HR Manager

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00026397-001

20/02/2019

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

CA-00026398-001

20/02/2019

The Complainant is seeking to return to work from agreed flexible arrangements of 29 hours a week to her full-time hours of 37 hours per week. Claim Reference Number CA-00026398-001 was a duplicate claim and is withdrawn and this claim relates to Claim Reference Number CA-00026397-001.

The Complainant is a long-standing employee and works as a Laboratory Technician.

In October 2018 she submitted a Change to Terms and Conditions form to the Respondent seeking to return from agreed flexible arrangements which she had previously worked 29 hours a week to the full-time hours for her Grade of 37 hours per week.

In January 2019 the Complainant was informed by her Manager that due to “budgetary constraints I am not in a position to approve your request”. She also received another form which stated in handwriting “Refusal on the grounds of lack of Budget to fund additional hours” which the Complainant considers a form of evidence that her application was not dealt with in an appropriate manner.

The Complainant’s Union Representative appealed the decision on the grounds the Complainant had expected the increased hours, had rearranged her family commitments at considerable expense and on the basis that 52.1 hours were available due to four staff on reduced hours.

Paragraph 11 of the applicable Agreement on flexible Working Hours states that employees “will retain the right to return to wholetime working subject to the availability of such hours in their grade”. It follows from this that the Respondent can only refuse a request to return to whole time working hours if the hours are not available in the Grade and a request does not rest on a budgetary ground consideration.

84% of requests to return to work have been approved by the Respondent and 100% of request were made by women and the manner of how the Respondent is interpreting the Complainants request is unusual and indirectly discriminatory.

The Complainant applied for and was approved for reduced working hours in 2007 and has retained these flexible working hours since then.

When the Complainant previously discussed a return to full time hours with her Manager she was told there was a moratorium on recruitment.

The Complainant’s application was considered internally, and she was informed by the General Manager that her application was “Refused on the grounds of lack of Budget to fund additional hours”. All increased hours require an internal financial justification and approval which was not justified in this case.

Internal communication then took place about the application but the end result was it was not approved due to budgetary issues or the availability or need for additional hours in the Complainants Department.

The Complainant sought advice from her Manager about invoking the internal Grievance procedure, but the Complainant did not invoke the internal procedure and instead went externally to the WRC.

A meeting was arranged in May 2019 with the Complainant and her Union Representative and the Complainant was advised that there were no available hours available to grant her request. The Complainant was further advised that her application would be resubmitted when the current cost containment directive is lifted.

In conclusion, the return to work application is determined by the rules which state “Line Managers will facilitate staff where possible but approval is dependent on the exigencies of the service”.

At the Hearing it was pointed out to the parties that because the internal grievance procedure had not been used that the Adjudicator had a difficulty in issuing a Recommendation on the matter in dispute. However, the parties agreed that the use of the internal grievance procedure in the past few months would not have changed the likely outcome of the Respondents decision not to allow the return to whole time hours. It is in that context that I am issuing a Recommendation on this matter.

While the argument put forward by the Complainant was that the Respondent had no right within the rules regarding return to whole time hours to deny her return on the basis of there being no budget to fund additional hours the Respondent stated that it had assessed the situation thoroughly on the basis of seeing was there any available hours and had concluded that there were none available. The Complainant referenced four staff who were on short hours, but she did not put forward enough justification to show that these “lost” hours need to be replaced by her returning to work on increased hours. In line with the agreement on returning to whole time hours the Complainant has not shown that there is “the availability of such hours in their grade”. It is not the Adjudicators role to “second guess” the Respondents position in this regard in the absence of such proof being put forward by the Complainant.

It is also relevant, but not critical, that the Complainant had been on reduced hours for over 12 years and was seeking an immediate return to increased hours. The word exigencies means that there is an urgent need or demand for something which obviously the Respondent does not feel from an operational perspective or that they can justify from a budget cost perspective at this time.

I recommend that the Complainant initiate the internal grievance procedure regarding her claim. Pending the completion of the internal grievance procedure I also recommend that should any extra hours become available on any week going forward, which the Complainant is suitable to do the duties, that she, subject to any internal precedents or agreements regarding how those hours would be filled by staff, be offered those hours. This would require the Complainant to have a degree of flexibility in working the additional hours offered, if any, until the completion of the internal grievance procedure. It is noted, but not a definite decision, that the Respondent felt that matters could change in October 2019 with regard to the availability of extra hours and I recommend every effort should be made by the parties to have the internal grievance procedure concluded by the end of September 2019.

Hours of Work