Complainant

Respondent

Anonymised Parties

A Care Assistant

A Care Service Provider

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 19 of the Carer's Leave Act 2001

CA-00016506-001

22/12/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 19 of the Carer's Leave Act 2001

CA-00016506-002

22/12/2017

The Complainant claims that she was employed as a Care Assistant and having been granted Carer’s Leave for 6 months she was not afforded the opportunity to return to her role by the employer. This prevented her from returning to work at all and is in breach of her entitlement under Section 14 Carer’s Leave Act, 2001.

The Respondent claims that the Complainant was granted Carer’s Leave for 6 months as requested and it tried to facilitate her return to work subsequently but none of the arrangements for that return were suitable to the Complainant and she left her employment by her own volition.

The following is a summary of the Complainant’s evidence.

The Complainant claims that she was employed as a Care Assistant by the Respondent having commenced her employment in or around 1998. She said that she was on a variable hours’ contract, where she originally worked on a full-time basis. The Complainant said that following her first maternity leave in 2007, she changed her work arrangement and commenced working part time. She said that she worked with the Respondent without any difficulty until her second maternity leave period in 2014. The Complainant claims that her second son was born with a genetic condition on 10 July 2014, and it subsequently transpired that he was to experience a developmental delay where substantial additional care was required, therefore, forcing her to find the correct balance between her work and her caring role.

The Complainant said that she sought a reduction to her hours following her second maternity leave. She said she normally worked from 5.00 p.m. to 10.00 p.m., five evenings a week, Monday to Friday; she applied for and was granted a reduction to 4 days per week, namely Monday, Tuesday, Wednesday and Thursday. In January 2017 she became very unwell, with the pressures of life looking after her young children and holding down a job so she sought Carer's Leave and made an application to the Respondent for that leave, which again was granted. She said that she commenced her Carer's Leave on 16 April 2017 and her return to work date was set as 16 October 2017.

She said that during the time she was off work she noted a provision where the Department of Social Protection would allow her to retain her state Carer's Benefit if she worked a maximum of 15 hours per week. She said that she understood that she would have to get agreement from her employer first. She said that she was advised at that time by email that she could come back to work Monday, Tuesday and Wednesday from October 2017 on the 5.00 p.m. to 10.00 p.m. shift and that arrangement would continue for 18 months. She said that on 3 July 2017 she requested a letter in relation to her Carers leave arrangement for the 18-month period and she mentioned that she was looking forward to returning to work.

She claims that she was advised on 20 September 2017 that the shift she was working was no longer available. She said that she went into her employer and met with her manager and asked why things had changed. She said that she was told to go and speak with the HR manager, Ms. A. She met with Ms. A and was told that those hours were no longer available and that she should not have been promised those hours by her manager, Mr. B. She claims that she sought advice and was told that such a change to her working arrangements was a breach of the relevant legislation, namely the Carer’s Leave Act. She said following this she was later offered different hours on mornings, weekends and night shifts, none of which suited given that she had to look after her son at the time.

The Complainant said she is certain that when she met with her manager, Mr. B, on 7 July 2017 he agreed that she would return to work Monday, Tuesday, Wednesday, on the 5.00 p.m. to 10.00 p.m. shift, totalling 15 hours per week. She said it was only when she requested details from her employer as to her annual leave entitlement for the year 2018 by email on the 19 September 2017 that she received an email the next day, for the first time, raising an issue with the 5.00 p.m. to 10.00 p.m. that it may not have been reintroduced in time for her return. She said in spite of the fact that she was due to return to work on 16 October 2017 she had no further communication from her employer. She said she had emailed her employer on 4 October 2017 enquiring as to her hourly rate of pay and in that email said, "l am not really sure if I have that shift to go back to as nobody has contacted me with a decision". She said she subsequently received a letter from the Respondent advising that the shift was not currently available and that she will not be returning to work as was planned.

The Complainant said she sought clarification from Mr. B, the person who had initially agreed her return to work pattern on the conditions she had requested, where she was advised by him that he had “no hand, act or partin the decision not allowing her return” on those terms. She claims that she attended a meeting on 18 October 2017 with the owner and Ms. D, Director of Nursing and was advised that her job was no longer available, but she was offered alternative shifts. However, she said that because of her son's needs these shifts were not suitable. She claims that she was also advised that if she accepted the alternative shifts other members of staff would have their hours reduced. She claims that Ms. D advised her of the Internal Grievance Procedure, but given all the foregoing and the fact that the alternatives offered were not suitable to her circumstances she could not return to work having been told that other staff would have their hours cut and, she said that it was made clear to her that these options were the only options on the table. Arising out of the same she handed the case over to her Solicitors to pursue.

Legal Submission

The Complainant submits that for the 14 months prior to taking her Carer's Leave she worked on the 5.00 p.m. to 10.00 p.m. shift. When she discussed taking Carer's Leave she was aware that she was entitled to her old job back or alternatively that the terms of the alternative employment offered to her must not be substantially less favourable to her than the terms of her original job.

She said that she attended with Mr. B, the previous Director of Nursing, and agreed that she would return to work on her original shift on a three-day basis and this was confirmed in writing on 20 March 2017. However, subsequent to this she claims that she was not allowed to return to her original job and have only been offered terms less favourable to those in place prior to her Carers leave. She said the terms offered to her were less favourable as she could not work the alternative shifts due to her family needs. Furthermore, she said that the alternative hours offered to her were offered on the basis that other staff members would have their hours cut because of her return to work.

The following is a summary of the Respondent’s evidence.

The Respondent said that the Complainant was employed with it as a Care Assistant between 1998 and 2017. The Respondent is a limited liability company providing care services in residential settings to the elderly and vulnerable. The Complainant applied for and was granted Carer’s Leave for 6 months commencing 17 April 2017. The most recent contract of employment between the Complainant and Respondent is signed by the Complainant on 14 May 2011 and on behalf of the Respondent on 29 April 2011. Under the terms and conditions of employment, the contract states “Your normal hours of work can be variable each week, working Monday to Sunday, covering a 24-hour roster with an agreed break(s) each day. You may be required to work additional hours when authorised and as necessitated by the needs of the business.”

The Respondent said that between 2011 and 2017 the Complainant worked shifts covering the following times:

2011: 0700-1330; 0745-1415; 1400-2200; 1415-2000; 1415-2100;

2012: 0700-1330; 0745-1415; 1000-1630; 1000-1315; 1300-1800; 1415-2000; 1515-2100;  

1615-2200; 1645-2200;

2013: 0745-1415; 1415-2000; 1515-2000; 1615-2200

2014: 1415-2000; 0745-1415. The Complainant was on maternity leave From June 2014 to December 2014;

2015: 0700-1300; 0745-1415; 1415-2000; 1930-0000;

2016: 0700-1330; 0745-1400; 0745-1415; 0745-1800; 1400-1930; 1400-2000; 1415-2000; 1415-2100; 1930-0000; 1630-2200; 1600-2200; 1700-2200;

2017: 1700-2200. The Complainant’s Carers Leave commenced on 17 April 2017.

The Respondent said that due to the varying levels of demand in the care homes to which the Respondent provides staff, employees of the Respondent are required to be flexible in terms of their place of work and times of work. This is reflected in the contract of employment. It said that while every effort is made to facilitate employees with respect to shift times, the needs of those in receipt of care is the primary consideration. The needs of a residential care home can vary from week to week and the rostering of workers will reflect that. It said that providing consistency for employees is in the best interests of employees, the Respondent and the residential care providers however it is not possible to guarantee the availability of specific hours far in advance. The Complainant, as an employee of many years is well aware of this fundamental characteristic of the service.

The Respondent said that the Complainant wrote to Ms A, Human Resources Manager, by email on 3 July 2017 requesting “a letter to extend my leave for a further 18 months or the remainder of the 104 weeks from October.” The email referred to a conversation about the possibility of returning to work for 15 hours per week in October, but “the main part [of my request] is extending my leave for the present and if the rest works out, I’ll be back on to you on it.” The Respondent said that Ms A replied to the Complainant that day informing her that the 1700h to 2200h shift was not on the roster currently but that was a situation that could change in October and suggested the 0745-1415 shift as an alternative. By reply email, the Complainant states “I live in hope”, and the Respondent said that it believed this was referring to the possibility of the 1700-2200 shift coming back on the roster. It felt things were clear and amicable between the parties.

By letter dated 13 July 2017 to the Social Welfare Office and the Complainant, Ms. A wrote the following: “To Whom It May Concern: This is to confirm that [the Complainant] has extended her Carers Leave until 14 April 2019 which will total 104 weeks. [the Complainant] will return to work week commencing 16 October 2017 but will not exceed 15 hours worked per week. Should you have any further queries, please do not hesitate to contact me.”

The Respondent said that on or before 4 September 2017 the Complainant spoke with Mr. B during which she informed him of her intention to return to work on 16 October 2017 if the 1700-2200 shift was available Monday to Thursday. On 20 September 2017 Ms A wrote to the Complainant informing the her that it was not known if the 1700-2200 shift would be reintroduced by 16 October 2017. The Complainant was asked what other hours she would be able to work. By reply of 20 September 2017 the Complainant informed the Respondent “Regarding my shift, I thought it was all okayed? I’ve sent off all my paperwork for [my son] and returning on that it had been granted and okayed. Say you are winding me up!”

The Respondent said that Ms. C, Operations Manager, telephoned the Complainant to explain the situation regarding the shift not being available. By email of 4 October 2017 the Complainant wrote to Ms. A saying “I am not really sure if I have that shift to go back to as nobody has contacted me with a decision. If I don’t could you put that in writing instead and I’ll get that of to them as his case is on hold until I have a definite plan of what I am doing.” Ms. A telephoned the Complainant on 4 October 2017 and informed her that her preferred shift would not be retuning for the time being but when it was reintroduced she would be informed. It claims that it apologised for any confusion and offered morning shifts, night shifts and weekend shifts, all of which the Complainant declined.

The Respondent said that Complainant said she would take 1800-2000 or 1700-2000 and that she would be in contact when she was available to commence those hours. The Complainant said she wanted to sort out her payments first. Ms. A stated that she could be offered sickness cover for evenings and when this arose Ms. A would contact the Complainant. In the meantime, the Complainant requested a letter confirming that the shift was not coming back, so she would not be returning to work. By letter to the Complainant and the Social Welfare Office and as requested by the Complainant by email and phone call of 4 October 2017, Ms A wrote: “To Whom It may concern; [the complainant] will not be returning to work as planned in October, as the required shift is currently unavailable. Should you have any further queries, please do not hesitate to contact me.”

On 18 October 2017 the Respondent met with the Complainant where she stated that she was advised by the Department of Social Protection that the letter sent to the Department on 4 October 2017 was a dismissal letter and that it was illegal and in breach of the laws surrounding carers leave. The Respondent said that contrary to this assertion, the letter of 4 October was not a dismissal letter as it (a) did not have the effect of dismissing the Complainant; (b) was a communication to both the Department of Social Protection and the Complainant at the request of the Complainant to give clarity to the factual circumstances; (c) was not intended to have the effect of dismissing the Complainant; (d) did not exclude the possibility of the Complainant returning to work in the future; (e) As the letter was for the purpose of extending the Complainant’s leave from work it could not simultaneously operate as a dismissal from that same work.

The Respondent said that the Complainant was again offered alternative shifts which the Complainant said she would consider over the weekend. The Respondent offered to contact the Department of Social Protection and inform it that there had been a misunderstanding so as to avoid any inconvenience to the Complainant. On 23 October 2017 Ms. D, the Director of Nursing spoke with the Complainant who said that she “wanted to accept the dismissal letter”; to which, Ms. D said that it was not a dismissal letter and that it was simply a letter stating the agreed facts that none of the hours available were convenient to the Complainant. The Complainant was again offered alternative shifts which she declined. Ms. D said that she informed the Complainant that if she had a grievance that there was a grievance procedure open to her. The Respondent said that the Complainant asked if she could be let go so as to pursue alternative employment or would she have to resign. She was informed that she would have to resign in writing. It said that she became very upset and was informed that she did not have to make any decisions. The Complainant was informed that the option was there to look at alternative shifts and she could reconsider her position later. The Complainant asked for a few days to think.

The Respondent said that by email of 24 October 2017, Ms. D wrote to the Complainant stating the following: (a) that she remains an employee of the Respondent; (b) the letter of 4 October 2017 was not a dismissal letter; (c) alternative shifts of 0745h-14-15h, 1415h-2000h, night duty and weekend shifts have been offered but were refused; (d) she would be welcome to reconsider and that the Respondent would be happy to have the Complainant back to work; (e) no employee is currently working a shift between 1700h and 2200h as the demands of residents do not require that shift to be operated; (f) it is the Complainant’s right to raise a grievance and that procedure is set out in the handbook.

Legal Submissions

The Respondent maintains that contrary to the assertion of the Complainant, there has been no breach to Section 14 of the Carer’s Leave Act, 2001. It said that there has been no change to the Complainant’s job, her rights, duties and obligations being identical from the time prior to her commencing carer’s leave. It said that it is the Complainant, who is seeking to alter her contract and confine her hours of work to between 1700h and 2200h on Monday, Tuesday and Wednesday. The Complainant’s contract states that her normal hours of work can be variable each week, working Monday to Sunday, covering a 24-hour roster.

The Complainant worked in this manner and with full understanding of the need for flexibility regarding working times. The Complainant, through many years of experience, is familiar with the variable demands in respect of residential care and in particular the manner in which the organisation of shifts varies over time. The Respondent would endeavour to provide as much stability as possible for employees, neither an employee nor the Respondent could forecast with accuracy the needs of residents in care. The Respondent takes no issue with the Complainant being confined to 15 hours per week and has at all times been keen to facilitate same. However, the Respondent is not in a position to offer the specific hours of work on specific days which the Complainant seeks.

The Respondent said Section 15 of the Carer’s Leave Act, 2001 provides that:

“(1) Where an employee is entitled to return to work pursuant to section 14 but it is not reasonably practicable for the employer to permit the employee to return to work in accordance with that section, the employee shall be entitled to be offered by his or her employer suitable alternative employment under a new contract of employment.”

It is denied that a change to the hours at which an employee works constitutes a change in employment. However, should it constitute a change in employment, sufficient offers were made to the Complainant by the Respondent to satisfy the obligations contained under Section 15.

The Respondent said that the Complainant alleges she was penalised for exercising her rights contrary to Section 16 of Carer’s Leave Act, 2001, however, she was not dismissed, nor was she selected for redundancy and she was not subjected to unfair treatment. It said the Complainant is claiming she was subjected to an unfavourable change in the conditions of employment of the employee contrary to Section 16(2)(c). It was never a term of the Complainant’s employment that she would be either (a) entitled to specify her own hours of work or (b) be engaged under such terms as her hours of work would never change. It said that the Complainant’s terms and conditions of employment show the contrary to be the case.

The Respondent noted that the Carer’s Leave Act, 2001 Explanatory Booklet for Employers and Employees states as follows with respect to an employee’s return to work after carer’s leave:

“An employee is entitled to return to work at the end of a period of Carer’s Leave to the employer with whom he/she was working immediately before the absence, or with his or her successor, in the job held immediately prior to the leave and under the same contract and terms and conditions of employment. If the business has changed ownership during the employee’s absence on the leave, he/she is entitled to work with the new owner under a contract of employment identical to the contract that existed with the original employer”.

The Respondent said that it is clear from the terms of employment as specified in the contract between the Complainant and Respondent that if she were to return under the same contract and terms and conditions of employment, she could be required to work the hours as specified by the Respondent, though not more than 15 hours, as is required under the Act.

The Respondent said it is the duty of a Complainant to exhaust all internal grievance procedures before commencing action against a Respondent. In An Employee v. An Employer (UD720/2006) the Tribunal held that “the claimant did not exhaust the grievance procedure made available to him and this proves fatal to the claimant’s case.”

The Respondent said that only under circumstances where the Respondent’s behaviour was of such severity that it would leave a claimant with no choice but to resign would a claimant be excused from utilising the available internal grievance procedure. In Donegan v. Co. Limerick VEC (UD828/2011) it was held that “the respondent’s conduct was not so unfair or damaging to the claimant’s rights and entitlements that she had no option but to reign from her position.”

In the present case the Respondent said that the Complainant was informed of and encouraged to utilise the grievance procedure on at least two occasions. On 23 October 2017 in response to Ms D’s suggestion that the Complainant utilise the grievance procedure, the Complainant informed Ms D that “is not something I would do, it’s not me.”; and by email from Ms. D to the Complainant, she was informed “As an employee you have the right if you feel the requirement to raise a grievance in line with the internal grievance procedure which can be found in your handbook.” No response was ever made to this proposal.

The Relevant Law

Section 14 of the Carer’s Leave Act, 2001 provides as follows:

“(1) On the termination of a carer’s leave in accordance with this Act, the employee concerned shall be entitled to return to work –

(a)    with the employer with whom he or she was working immediately before the start of the period or, where during the employee’s absence from work there was or were a change or changes of ownership of the undertaking in which the employee was employed immediately before the absence, the owner on the expiration of the period (“the successor),

(b)    in the job that the employee had immediately before the commencement of the period, and

(c)     under the contract of employment in respect of which the employee was employed immediately before the commencement of the period or, where a change of ownership such as is referred to in paragraph (a) has occurred, under a contract of employment with the successor, that is identical to the contract under which the employee was employed immediately before such commencement, and (in either case) under terms or conditions not led favourable to the employee than those that would have been applicable to him or her if he or she had not been so absent from work.

(2) For the purposes of subsection (1)(b), where the job held by an employee immediately before the commencement of a period of carer’s leave to which he or she is entitled was not the employee’s normal or usual job, the employee shall be entitled to return to work, either in that job or in his or her normal or usual job as soon as is practicable without contravention by the employee or the employer of any provision of a statute or provision made under statute.

(3) Where, because of an interruption or cessation of work at an employee’s place of employment that exists at the time of the expiration of a period of carer’s leave taken by the employee, it is unreasonable to expect the employee to return to work on such expiration, the employee may return to work instead when work resumes at the place of employment after the interruption or cessation, or as soon as reasonably practicable after such resumption.

Section 15 of the Carer’s Leave Act, 2001 provides that:

“(1) Where an employee is entitled to return to work pursuant to section 14 but it is not reasonably practicable for the employer to permit the employee to return to work in accordance with that section, the employee shall be entitled to be offered by his or her employer suitable alternative employment under a new contract of employment.”

Conclusions

I note that the Carer’s Leave Act, 2001 came into operation on 2 July 2001. The main purpose of the Act is to provide for an entitlement for an employee to avail of unpaid leave from their employment to enable them to personally provide full-time care and attention for a person who is in need of such care. The period of leave to which an employee is entitled is subject to a maximum of 104 weeks in respect of any one care recipient. The minimum statutory entitlement is 13 weeks. I note that an employee is entitled to return to work at the end of a period of Carer’s Leave to the employer with whom they were working immediately before the absence, or their successor, in the job held immediately prior to the leave and under the same contract and terms and conditions of employment. I note that if the job held by the employee before commencing Carer’s Leave was not his or her normal or usual job, the employee shall be entitled, following a period of Carer’s Leave, to return to that job, or to his or her normal or usual job, as soon as is reasonably practicable.

I note that if it is not reasonably practicable for an employer, to allow an employee to return to the job held immediately prior to the leave, the employer must offer the employee suitable alternative employment under a new contract of employment. The terms of the alternative employment must not be substantially less favourable to the employee than the terms of their original job and continuity of employment will be preserved.

Generally, it has been accepted that Section 14 of the Carer’s Leave Act 2001 provides an entitlement to return to work on the expiration of a period of carer's leave and is in terms similar, if not identical, to those of Section 26 of the Maternity Protection Act 1994, Section 18 of the Adoptive Leave Act 1995 and Section 15 of the Parental Leave Act 1998. All of these pieces of legislation have identical purposes and can be considered together. I note in Section 26 of the Maternity Protection Act 1994 that the entitlement to return to work is conditional on the same job being available to return to and it might not be practicable in every case provision is made under each piece of legislation referred to above for suitable alternative work. I see in Meath County Council v McDermott [EDA 21/2013] and Health Service Executive v Rabbitte [MPD 2/2016] where it would appear that terms and conditions that employees who are appointed to a particular grade do not have a right to return to the precise duties performed before going on leave, provided that the work assigned on return was appropriate to their grade. Therefore, if the possibility of the exact job as left is not available on the employee’s return the employers much attempt to facility that to alternative employment as set out in Section 15(1) of the Carer’s Leave Act 2001 “the employee shall be entitled to be offered by his or her employer suitable alternative employment under a new contract of employment”. [my emphasis added]

I note that under the terms and conditions of the Complainant’s employment in the present case, the contract states her normal hours of work can be variable each week, working Monday to Sunday, covering a 24-hour roster with an agreed break(s) each day. You may be required to work additional hours when authorised and as necessitated by the needs of the business. I also take note of the various combinations of roster worked by her throughout her seven years with the Respondent. I note the Complainant claims that her regular hours prior to going out on Carer’s Leave in 2017 were 1700 to 2200 and that was somewhat set for 18 months. I also note that her preferred option for return was similar hours but not over 15 hours per week. However, it is clear to me that the various work patterns over her historical relationship with the Respondent demonstrates that she was aware that her contract required flexibility depending on the Respondent’s client’s needs. I also note from the interchanges between that parties – in relation to what hours were available and not available - that this situation was an accepted norm in this her working environment.

When I consider Section 15(1) of the Carer’s Leave Act I do not deem that a new contract of employment would be required to establish the contractual rights and obligations of the Complainant and the Respondent, should the offer of the “alternative” jobs, offered in this instance, be acceptable. I am satisfied that the same terms and conditions that applied prior to the Complainant taking leave, applied to when she sought to return. It is clear that her preferred time slot to perform her duties was not available due to the nature of the Respondent clients’ needs and they were attempting to provide her with the opportunity to return to her job at a time slot that suited her, but no agreement could be reached. I am satisfied that discussions had not been fully exhausted when the Complainant chose to disengage from the Respondent and lodge her complaint.

Likewise, I have read the “alleged” letter of dismissal. I have heard evidence from all parties at the hearing, and I am completely satisfied that the letter was drafted by the Respondent on instruction from the Complainant for the purpose of notification to the Department of Social Protection to extend out the period of her Carer’s leave. Nothing more. I have also considered the Complainant’s claims that she was not comfortable that her return could cause others to have a reduction to their hours and that was a reason for her stepping away from the respondent because of the likely consequence on her co-workers. I find that peculiar. Her co-workers would have had to cover her hours while she was away on leave and it is only natural that on her return she would take back her hours and they in turn would have a reduction in hours to cover.

The Complainant has brought two claims pursuant to Section 19 Carer’s Leave Act 2001. It is not apparent from the documentation received or the submission that there is more than one complaint before me under the legislation and that she was prevented from returning to work as per her entitlement under Section 14 Carer’s Leave Act, 2001. I have merged the complaints accordingly.

I am satisfied that there has not been a contravention of Section 14 of the Act.

I find that the complaint made pursuant to Section 19 of the Carer's Leave Act 2001 is not well founded.

Carer’s Leave Act – return to work – rosters – complaint not well founded.