Complainant

Respondent

Parties

Paul  Matthews

Trinity College Dublin

Representatives

Barnaba Dorda of SIPTU

Peter Flood  @ cases@ibec.ie

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00044853-001

30/06/2021

The issue in contention concerns the allegation by the Complainant, an IT Support person, that the Respondent Employer failed in their responsibilities under the Carer's Leave Act, 2001. The Complainant returned from a period of Career’s Leave in 2020 but was not permitted to return to his former position in the Trinity Centre on the St James Hospital campus. He was instead assigned on a full-time basis to the main IT Office Support Desk in Pearse Street.

The Salary of the Complainant was, at the date of reference of the claim, € 4,893 gross for a 37.5-hour week.

The employment had commenced on the 2nd December 2005 and still continues.

The Complainant submitted a detailed written Submission and gave extensive Oral Testimony. He was fully cross examined by the Respondent Advisor.

The Complainant commended work with TCD in December 2005. He was assigned, from day one, to the St James Campus.  In 2015 he was assigned duties at the Pearse Street Help Desk which reduced his time at St James to three days per week with two days in the main Pearse Street, TCD Help Desk. He was unhappy with this change, but personal circumstances prevented him raising any objections.

In July 2018 the Complainant went on Carer’s Leave for four days per week. He returned to TCD on the 1st July 2020. However, on his return he discovered that he was no longer to be based in St James but assigned to the Pearse Street, main IT Office Help Desk. He was informed that there was no longer a role for him that required him to be physically present in St. James.

The situation had been complicated by the COVID Lock Down and his role was no envisaged to be two days in Pearse Street and three days working remotely. On this point his rosters post Career’s Leave are now based on the entire IT Help Desk staff complement which was more restrictive than his St James working patterns.

He had, very early on his return, raised the issue of his stated deterioration in his working conditions, contrary to the Career’s Leave Act, 2001, with the College IT Management and the HR Department but to no avail. It was a very frustrating exercise but a final Appeal to the Director of IT was replied to by the Director on the 2nd July 2021. The Director was clearly of the view that the Complainant had not been disadvantaged in any way in the arrangements post the Carer’s leave with no breach of the Act.

By this date, however, the Complainant had already (30th June 2021) sought the assistance of the WRC.

In the SIPTU submission it was accepted that the WRC Complaint form had been lodged on almost the last possible day (30th June 2021) on a twelve-month period from his return to work on the 1st July 2020. The delay was excused by the lengthy and ponderous internal TCD processes and the severe personal/family circumstances the Complainant had suffered, especially in early 2021.

In final summary the Complainant seeks reinstatement in his former role at the TCD Offices on the St James Hospital Campus and some financial compensation for the breach of the Act.

The Respondent submitted a detailed written Submission and gave extensive Oral Testimony from a number of management witnesses. They were fully cross examined by the Complainant Representative.

The Respondent made two main arguments

Firstly, that the Complaint was hopelessly out of time.

The Complainant had retuned on the 1st July 2020. The six-month deadline had been clearly passed and the last day application on the 30th June 2021 was completely unsupported by any substantial grounds. It was not a case of an unrepresented employee ignorant of the Law. The Complainant in his early correspondence with the HR and IT Management had demonstrated a good knowledge of the Law. He was represented and advised by seasoned Local SIPTU Representatives.  Covid restrictions had not helped in communications but there was plenty of evidence of extensive email traffic between the Staff side parties. Extensive Legal and Labour Court precedent points to the need to establish a very robust case in seeking an extension beyond the first six months especially where the date of lodgement is so far removed as in this case.

Secondly and notwithstanding the first Time Limits point the Complainant has no case. He was employed as a User Support Programmer in the IT Department of the College. He did not have a “right of residence” so to speak in the St James TCD offices. This was clearly demonstrated in 2015 where he was assigned to the Pearse Street offices for a number of days each week.

While he was on carer’s leave for two years the St James work load was largely handled from Pearse Street. The IT Director, Mr. McG, gave evidence of the evolving nature of IT Support and technological changes in all large Institutions. TCD was no different and the need to have a physical IT presence in St James’s Hospital no longer existed. The Medical Faculty based there had not requested a resumption of the Physical presence. The Complainant was a fully and well-regarded member of the IT Staff. His Terms and Conditions, Salary etc were exactly the same and there could be no suggestion that he was now suffering any detriment.

The TCD representative, Mr. Flood of IBEC referred to the relevant Sections of the Carer’s Leave Act.  The Act requires that if a position is changed while the occupant is on carer’s leave he must be afforded a return to work position that is not substantially less favourable that the previous position.

In this case, he argued, the pre and post Carers leave positions were identical. Case law precedents – (Adj -00012459 which summarises previous cases) were cited in support.

In summary the Complainant is out of time by any reasonable standard and notwithstanding the time issue has no basic case to argue.

3:1         The Legal position.

Two issues arise here – Section 41 Subsection 6 & 8 of the Workplace Relations Act,2015 in relation to time limits and sections 14 & 15 of the Carers Leave Act, 2001.

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

 (8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause

In this case the Complaint was referred to the WRC on the last possible day - the 30th June 2021.

The question of “Reasonable cause” arises here. The e mail traffic indicates a Complainant familiar with the relevant Carer’s Leave Legislation, but it has to be acknowledged that the 12-month period was in the midst of the Covid shutdown/restrictions.

The Complainant was pursuing his case via Internal College procedures -the final appeal being via the Director of IT, Mr. Magee. This was published on the 2nd of July 2021. The argument could be made that the Complainant was optimistic of Mr. Magee’s outcome and accordingly delayed a WRC reference. However, it was clear from HR correspondence as early as 21st October 2020 that the position of the College HR Department was not in the Complainant’s favour.  The Complainant was also being supported, albeit remotely, by local Union reps. It is hard to see why a “Holding Reference” to the WRC could not have been made in late 2020. This would be fairly standard IR practice even allowing for Covid difficulties/delays.

The Complainant referenced family bereavement and Carer’s Leave issues during the 12-month period as well as what were alleged, repeatedly by Mr. Dorda of SIPTU, to have been “ponderous” TCD procedures and internal delays.

To fully consider this question of the time limits issues / delay and as an aid, there is considerable precedent from the Labour Court in relation to this area.

IR/HR/Union Practitioners would comment that, in effect, the Labour Court has on occasion advocated some degree of favourable discretion where a late referral is only marginally out of the six months. However, a full six-month delay requires very, almost absolutist, evidence.  The headline case would have to be Cementation Skanska v Tom Carroll DWT 0426 where the Court stated

The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons”

While the Complainant had issues he was never far from a PC and had local Representative advice. Making a Holding Complaint while TCD considered their final response would seem to have been appropriate.

3:2         Summary Conclusion

On balance and having reviewed all the evidence the Adjudication conclusion has to be that the Complaint is Out of Time.

According the Adjudication has not got proper jurisdiction and the Complaint is accordingly Not Well Founded.

Career’s Leave Act ,2001, Time Limits, Adjudication jurisdiction