Complainant

Respondent

Anonymised Parties

Health Official

Health Service Provider

Representatives

Michael Quinlan Frank Buttimer & Company

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-00032288-001

18/11/2019

The Worker was employed in a specialist capacity with the Employer since 2014. She took a three-year career break under an agreed scheme and returned to work in 2017. She submits that she returned to a different position to the one she had previously occupied, which involves a different reporting structure, a national role instead of a purely local role, added administrative duties which do not allow her to carry out her core duties and an extra burden of travel commitments. The new duties have been a cause of workplace stress to her. The Worker is presently on sick leave. She is seeking to be transferred to the position she previously held. The Worker processed her grievance through the Employer’s Grievance Procedures, but without satisfaction. The Employer’s position is that it has complied with the terms of the career break agreement and that she can only transfer when a vacancy arises, and that this arrangement follows national guidelines.

The Worker submits that she believed, in good faith, that on return from her career break she had been re-assigned to the same local area where she had previously worked before taking the break. She realised after taking up the position, that it was in fact a different position that involved moving to a permanent national team. It was her experience that such moves were previously temporary ‘on loan’ arrangements when transferring from a local to a national team. She contends that the work that has been assigned to her has been almost exclusively administrative and is therefore not a good skills match for her. The Worker asserts that she is guaranteed re-employment in her substantive grade within 12 months of the expiry of the career break. She argues that the post she now has is fundamentally different to her former role and wishes to be returned to that previous role.

The Worker submits that a Workplace Relations decision of an adjudication officer, ADJ-00013670, should be seen as a precedent for transfer to another role.

The Employer submits that the career break scheme in effect makes her role redundant, as this was a job reduction measure in line with the objectives of the scheme. Upon return from a career break, employees are given three options: (1) Resume duty, (2) Apply for a further unpaid career break or (3) Resign from the organisation. No vacancy existed in the role the Worker had previously occupied, so she was assigned to a national team, but that she was still given a local base. The Employer asserts that, in effect, the Worker returned to the same grade, at the same location. The Worker’s request to be transferred to her previous role could not be accommodated for two main reasons. Firstly, there was no vacant role and secondly, that there has been a national agreement made with the relevant unions on a new structure for the areas in which the worker’s specialism operates. The Employer submits that since the grievance was made by the Worker, a clerical officer has been appointed to the Worker’s team to take up some of administrative duties, thus freeing the Worker up to apply her core skills to the optimum level.

The main issue to be determined in this dispute is whether the Employer has abided by the terms of the career break scheme to which the Worker has agreed. The appropriate part of the agreement (ICB) reads:

“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 ICB, with a guarantee of reemployment in a relevant grade [not necessarily in his/her existing work location] within twelve months of the expiry of the ICB.”. An appropriate vacancy is defined as “a vacancy approved for filling in the employee’s grade in which he/she was serving immediately prior to commencing the ICB. Location is defined as within the local catchment/hospital group area or within a 45 km radius of their current work/location.”

The ICB quite clearly does not guarantee a return to the same position in the same location. Evidence was submitted that the career break application form, which the Worker signed, is explicit on this point. There are provisos that the re-assignment does not necessarily have to be in the same location. The Worker returned to the appropriate vacancy in that she retains her Grade status in the specialist position that she had prior to the career break. She was also allocated to the same base where she had previously worked.

The Worker contends that the reporting structure has changed, and she is now a permanent member of a national team as distinct from being an “on loan “worker from a local team. The problem I see with this argument is that the Worker’s point of reference is her position prior to taking the career break. In an uncontested position, the employer made the case that the ICB was brought in to reduce job numbers and that the position of the Worker had in effect been made redundant. This suggests that a new reality had come into being after the Worker had returned to work; any reliance therefore on past circumstances cannot hold.

The Worker is clearly unhappy with the duties attached to her re-assigned role, but this is a grievance regarding unhappiness with the current situation, as distinct from a plausible grievance concerning the application of the ICB. I am also minded by the fact that the Worker returned to work in October 2017 and did not raise an official grievance until March 2019. If the Worker had an issue with the application of the ICB, it would be expected that such a grievance would have been raised much sooner. The Worker gave no plausible reason as to why such time elapsed before a formal grievance was made, although I do accept her position that she was informally raising issues regarding the work allocated to her. This may well be a justifiable grievance, but it does not translate into a contention that the Employer had breached, or otherwise unfairly implemented the ICB.  

The Worker wishes to be transferred to the local grouping of specialists where she had previously worked. The submission of the Employer is that no vacancy presently exists there and that a national collective agreement has also come into being which dictates the local numbers to be allocated to such a unit. I cannot recommend that the Worker would be transferred into this local grouping because it would obviously mean the discommoding of another worker, which more than likely would lead to unfairness for someone else. I am also cognisant of the fact that such a recommendation would undermine a national agreement on this grade. The Worker is patently unhappy with her current role and reporting structures. I understand her frustration with her present role but unfortunately such unhappiness does not translate into an entitlement to her previous role.

The Worker cited the recommendation of the adjudication officer in ADJ-00013670. Outside of the fact that this is an industrial dispute where ordinarily such decisions do not form a precedent, I find that the dispute cited can clearly de distinguished from the instant dispute. The former dispute concerned an application for transfer which was found to have been unfairly revoked. In the present case, the pivotal points surround the application of the career break agreement. Any application for transfer was refused from the outset.

After consideration of both submissions and evidence presented to me I find that the Employer has abided by the ICB and has acted fairly and reasonably in applying this agreement to the Worker. I recommend that the Workers grievance is not well founded and therefore she is not entitled to transfer to her former role.

I find that the Employer has abided by the career break agreement and has acted fairly and reasonably in applying this agreement to the Worker. I recommend that the Workers grievance is not well founded and therefore she is not entitled to transfer to her former role.

Industrial Relations, Career Break.