Complainant

Respondent

Anonymised Parties

An Employee

An Employer

Representatives

Rachel Hartery SIPTU

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-00026560-001

26/02/2019

Our case today refers to our member, the worker who was refused a year’s leave of absence while other Employees’ were granted this without exception. We are requesting that you find in our favour and grant the worker the leave.   This has been referred under the Industrial Relations Acts referral form is attached in appendix 1.

Employment Background

The worker commenced employment with the respondent on August 8th, 2011 as a TUS Supervisor.

He was remunerated at €672.95 per week and worked 35 hours per week.   Employment Policies and revisions are attached in appendix 2

Background to the case

The worker was offered a temporary position as Porter in a Hospital.   As per his terms and conditions of Employment, the worker applied to take a career break to facilitate this on January 11th, 2019.

Informal discussions took place, it was clear to the worker there would be resistance to this. The worker wrote to the CEO, Mr HK and gave formal notice of his intention to take a career break. On January 22nd the CEO wrote responded refusing this request.

The grounds for refusal were as follows;

1.            The Career break policy had caused difficulties and it was in review

2.            Uncertainty of TUS participants

3.         Taking up a permanent position with HSE was not considered keeping with the intentions of the original policy

On January 25th SIPTU wrote to the CEO appealing this decision and requested an appeal hearing with an appropriate person.

The grounds for appeal were as follows;

1.            The policy forms part of the worker’s terms and conditions.

2.            Uncertainty should not be a deciding factor – multiple options to back fill

3.            The HSE position is not a permanent position and it is rejected that taking up a position such as this, is not keeping with the intentions of the policy.

4.            The worker meets all the criteria to qualify for a Career Break

5.            SIPTU considered there may have been discrimination on Gender ground.

The CEO responded stating that the Company’s position did not change.   No appeal was heard which is unjust and unfair. No regard or respect was shown to this individual.

At this point the worker was getting anxious and was under pressure to respond to the HSE Offer. He again wrote to the CEO and sought support and assistance to no avail. He requested all internal procedures be exhausted and noted that the CEO himself was not the appropriate person to respond to an appeal, as he was the decision maker. The worker relayed that he was now progressing the appeal to the Chairman of the Board.

The worker wrote to the Chairman, Mr LW and requested an appeal. It was very obvious the respondents are in breach of natural justice, however this was lost on the CEO. The worker was worried that he wasn’t being treated fairly and suggested someone impartial hear the appeal.

No response was received from the Chairperson.

The worker was enthusiastic to take up this temporary post, but felt he had no alternative other than to resign. At this stage he felt that the respondent had let him down, CEO was unsupportive, and the Chairman of the Board Mr LW ignored him.

The worker furnished his resignation on February 13th, finish date March 1st. That left him devastated and all the hard work over the years meant nothing. He added that he felt his right to have his grievances dealt with was breached, he also added that he felt discriminated against.

The worker was let down very badly by the Company that he enjoyed working for eight years. He completed his work to the best of his ability and enjoyed the challenge with working with vulnerable adults in the community. He has had many successes within the respondent and was hoping to keep this door open, like it was for others.

In The worker’s tenure three other Employees were approved for a career break for various reasons;

Female A – currently on a 3-year career break – works abroad in tourism

Female B – Currently two year’s Career break and is living in Australia.

Female C – currently 2-and-a-half-year career break, assists in her Husband’s Business

Male D – Granted one-year Career break and worked abroad, returned home and has since left the Company.

The worker was treated very badly in the process of his application, for the following reasons;

•          To his understanding no other Employee was refused a career break within this organisation before.

•             The reasons that the Respondents gave were not credible and factually incorrect. The assumption alone of the worker moving to a permanent position within the HSE was factually incorrect.

•             Three other female Employees were on Career breaks all of which are over a year.

•             Those employees on Career breaks have taken up positions such as; running a caravan park in France, temporary work Visa to travel around Australia, and working in the family business.

•             The worker’s reasons for a career break are not any different to these other Employees.

The Respondents are in breach of fairness, natural justice and in breach of its own procedures, as follows;

•             The worker was not given valid reasons for the refusal of this application

•             He was not afforded the right for this decision to be appealed in the correct way

•             The CEO when pointed out that he was factually incorrect with his assertions still did not provide any valid reasons why this application was not approved.

•             The CEO failed to expand on the reasons

•             The CEO failed to meet/discuss the matter further

•             The Chairperson when contacted to assist, ignored the worker and no response was received from his request.

•             The respondents were not reasonable or fair to this Employee

Conclusion

The worker was treated very badly by the Respondents. Their refusal to grant leave and the refusal to engage with him in a meaningful way is not what a reasonable employer would do, and particularly with the industry, a caring one who promotes helping people and receives public funding to do so. They also totally disregarded their own procedures and policies.

We respectfully request that you find in our favour and award the worker adequate compensation for his employer’s refusal to grant him leave.

The decision to grant leave is discretionary. We have had a number of career breaks and this was causing difficulties in providing a service. We went from 17 supervisors to 15 supervisors. Even if we did grant it we would have had difficulties filling the position in April 2016.

At the time he applied the ratio of supervisors had changed and we were under pressure.

Three females and one male. Lady one, she went to Australia. Her son was in a very serious accident. She was on unpaid leave and it turned into careers break. (April 2016)

Female two. She went to France and it was for seasonal work. She applied for three years. It was granted. (Apirl 2017)

Female three, had been on maternity leave. She requested a career break and then took up a part time position. She couldn’t take on a full time role because of her child career commitments. ( May 2018)

Male. Ill relative. He went to Spain. (May 2017).

The complainant did not have a family need at that time and therefore he was not facilitate.

The complaint alleges that he was discriminated against by the respondent in relation to the refusal of a leave application. The complainant appealed the decision to refuse his application. That appeal was not heard. He wrote to the CEO requesting an appeal. That too fell on deaf ears. He was very anxious to take up his post in a local hospital. He is of he opinion that he was refused a career break because he is a male and didn’t have a family need at the time. All of the females who applied for a career break were granted it. The three females who applied, applied for similar reason to that of the workers. They all applied so that they could take up other positions. However I note that they all had a family need at the time. The complainant left his job. Therefore, to make a recommendation in relation to the career break would be a futile exercise.

The respondent states that he was not discriminated against. The reason he was refused was because they had nobody to fill his role. The others who were granted leave did not work on the same program as him. The needs for that section were different than the sections the other comparators worked in. Furthermore, they argued that since the comparators leave was granted, things have changed there too. I note that the last application for leave in the comparators section was refused.

I am satisfied that the worker was treated less favourably that his comparators firstly, because he did not have a family need and secondly on a more general ground, because the respondent refused to have any meaningful engagement with him following the refusal of the application.

I recommend that the complainant be paid compensation of € 2,500.00

I recommend that the respondent pay to the worker compensation of €2,500.00 within four weeks of the date of this recommendation.