Worker

Employer

Anonymised Parties

Process Development Engineer

A University

Representatives

Vincent McKechnie BL instructed by  Rachel O'Toole Solicitors

Act

Dispute Reference No.

Date of Receipt

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

CA-00041648-001

21/12/2020

The Employee commenced work in October 2010 as a Product/Process Development Engineer. He was paid a salary of €58,893. The Employee applied for and received a career break to create a campus company from September 2015 to 1st September 2020. Before his return to work in August 2020 he was informed by the employer that his position no longer existed and that instead he was being offered the role of Assistant Lecturer. The Employee submits that this is a fundamental breach of contract in that it is a completely changed role from one of researcher/developer which he possessed prior to the career break. The Employee is seeking a return to a Research and Development position or in the alternative, that he should be offered a redundancy package.

The Employer submits that the position of Assistant Lecturer is a suitable alternative position under the career break scheme and furthermore that the offer of suitable alternative employment negates any redundancy claim.  

The Employee’s role, when he signed his original contract in 2010 with the Employer, was solely and exclusively that of Researcher/Developer.  When the Employee applied for his career break in 2015 he received no documents pertaining to the ‘1985’ circular that the Employer now exhibits. Furthermore, the career break documentation from this circular applied to teaching and academic staff and promised a permanent post on the Employees return within those latter grades only. The employee signed a career break form labelled ‘Application for Career Break/Work Sharing Administrative, Support and Technical Staff Only’. Notwithstanding the fact that he did not fall into this category, he signed it clearly on the understanding that the alternative, which applied to academic and teaching staff, did not apply to him. No additional information was provided on what might transpire when he returned after the career break. The Employee had a legitimate expectation that the career break scheme that he signed up to suggested that he would return to his previous permanent job with the Employer.

The Employee submits that the 1985 circular cannot be read to mean that an employee returning from a career break can be offered any permanent post within the University and that if it did, it would create an absurdity.

The Employer is now relying on a circular from June 1985 which guarantees a permanent post only for returning employees. It is patently unfair that the Employee was not informed of this proviso prior to him applying to take a career break. The offer of a whole-time lecturing post is in essence a fundamental breach of his original employment contract or a termination of the contract.

The Employee submits that he should be offered a Research and Development position with the Employer or in the alternative should be offered Redundancy.   

Career breaks for the sector were established by two circular letters from the 1980s. Despite being over 35 years old, they still form the basis of career breaks for the sector. When the Employee went on his career break his contract researcher position was not back filled or otherwise recruited for replacement. The particular research activity within the University that the Employee had previously worked was in fact wound down and ceased to exist during the period of his career break.

The Employer is not in a position to hold roles that are not back-filled indefinitely, especially so where the underlying activity no longer exists, and it is not in a position to create new roles as and when staff give notice of a return from career break.  The terms of the two circulars provide for an entitlement to resume duty in “a permanent post” and “fillable vacancies as and when they arise”. The Employer submits that they do not provide for an entitlement to return to a specific position. There is no suitable researcher role for the Employee currently in the University.

The only suitable vacancy that did exist, having regard to the Employee’s grade and qualifications, was an Assistant Lecturing Post in a specific department.

The Employer contends that other researchers that were engaged in the same research activity as the Employee did accept the suitability of such roles and moved to similar academic positions when the research activity was wound down.

The Employer asserts that it has not made the Employee redundant or otherwise determined the employment relationship.

It is clear from the outset that the career break application process in 2015 was not fit for purpose as it relied upon a 1985 circular that was patently outmoded when it comes to the present-day structure and categories of staff of the institution. I am also satisfied that the Employee did not receive the necessary documentation in 2015 when he embarked upon his career break, which any reasonable employer would be expected to provide., especially of the specifics on the return to work policy.

The Employer also seemed to be engaging in an act of juxtaposition of both the Academic and Clerical/Administration career break processes that didn’t augur well for clarity or fairness when it came to the return to work of the Employee. The former process suggested a ‘permanent’ position would be offered; the latter offered a ‘suitable’ position. However, I am not entirely convinced that the Employee would have been completely unaware of the risk when taking a five-year long career break that his job might not exist when he returned. He was involved in the campus company developing specialist equipment in an area closely associated with his research discipline at the University and, in probability, would have some knowledge of the demise of his previous role. Furthermore, career breaks by their nature involve a risk that is proportionate to the time period involved, in that a specific role might not exist upon return to work.

The Employee did not identify a suitable alternative research/development position that he could return to and the Employer gave a plausible account of not having any such suitable position.  However, the Employer did submit a suggestion whereby a lecturer may canvass some financial support for a research project that may then allow the employee to effectively ‘buy out’ their lecturing hours.

The fundamental questions to be addressed is whether the offer of an Assistant Lectureship was an alternative and reasonable offer of work for the Employee upon his return or was such a position so significantly different from his original contract that it involved a termination of his employment.

It is important to consider the fact that the lecturing role offered to the Employee was in the same discipline for which he possesses qualifications and experience. The Employee made the point that he has no desire to work as a lecturer. He did acknowledge that he did lecture for one semester for four hours per week and that such a requirement to work four hours per week as lecturer was provided for in his original contract of employment.

The offer of a return to work as an Assistant Lecturer does not, it seems, involve a change in pay nor was it argued that other fundamental terms likes holidays, sickness benefit and pension were different. The physical location of the work, for all intents and purposes seems to be in the same area. The suitability of employment is an objective matter whilst the reasonableness or otherwise of a purported refusal or otherwise, unhappiness with an offer, is a subjective one. The employee is clearly unhappy with the prospect of taking up a lecturing position. Such unhappiness is understandable but is all too often a consequence of not returning to the same role after long term leave, when that role ceased.  The Employer in this case has no intention of terminating the contract of the Employee and it is indeed quite unusual for an employee to be seeking a termination of his employment at an industrial relations forum. I have sympathy for the Employee however, I do not think that the offer of an Assistant Lectureship is an unreasonable offer, having considered all the circumstances of this dispute.

I am also satisfied that the Employee was treated somewhat shoddily in not being fully informed of the consequences and obligations associated with a career break. The Employer had an obligation to ensure full clarity on an updated return to work policy. It did not fulfil that obligation in this instance and this uncertainty caused a certain amount of unnecessary stress for the Employee. I recommend that the Employer would pay the Employee €3000 compensation for unfair treatment.

(1)     I recommend that the Employee accept the offer of work as Assistant Lecturer on his return from his career break

(2)    I recommend that the Employer would pay the Employee €3000 as compensation for unfair treatment

I recommend that the Employer and Employee accept the foregoing as a final settlement of their dispute.  

Section 13 of Industrial Relations Act 1969, Career Break, Redundancy.