Worker

Respondent

Anonymised Parties

A Mental Health Nurse

A Mental Health Service

Representatives

  Self-represented

Head of HR

Act

Complaint/Dispute Reference No.

Date of Receipt

Industrial Relations Act, 1969

CA-00046966-001

03/11/2021

Industrial Relations Act, 1969

CA-00047101-001

10/11/2021

Industrial Relations Act, 1969

CA-00047101-002

10/11/2021

This is a claim by a former Staff Nurse, under Section 13 of the Industrial Relations Act, 1969, who resigned his role on 10th November 2022 following a refusal by the employer to permit the worker to avail of a second career break in November 2021 in order to travel to Australia.

The hearing took place in a hybrid fashion with the Worker giving his evidence by video link.  The Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 designates the WRC as a body empowered to hold remote hearings.

The hearing was advised that there was only one claim and not three to be considered and so I will make my recommendation in relation to all matters under the complaint bearing the reference CA-00046966-001. 

Industrial Relations Act, 1969

CA-00046966-001

03/11/2021

The worker submits that he was employed by the employer as a mental health nurse and had previously been on a career break from 1st of July 2019 to 30th of June 2020.

He applied for a second career break in March 2021 which was refused, and he was advised that as per the employer Terms and Conditions of Employment (March 2017), the employee ‘must have served since their return from the earlier career break for a period equal to the duration of that career break.’  

The worker re submitted the career break application in July 2021, which was again refused, this time due to service needs. Following the refusal of this application he sought a grievance meeting to discuss the refusal further.    At this meeting the worker outlined the reasons why he believed his career break application should be granted.   He proceeded to Stage 2 of the grievance procedure and the refusal of his career break application was upheld.    He later appealed this decision to the Human Resources Department.   The refusal of his career break application was again upheld.

 As reasoning for the refusal, the worker was advised that there would be a detrimental effect to the service which was clarified as a “loss of skill mix and knowledge”.   The worker was also advised that the refusal of his application was consistent with decisions made in respect of applications from others who were also declined.

The worker argues that this is not the case and that he is aware of a former colleague who had been granted an extension to their career break in January of the same year.   He also submits that other general nurses were also granted career breaks during the period in which he applied for his second career break.

He states that fairness and consistency have not been employed in this respect.   The worker states that he is fully committed to returning to his employer on completion of his career break and that he previously worked with the NHS during his previous career break and returned following the completion of his two-year career break.   He adds that he acquired and developed numerous skills and qualities, gained experience, knowledge and clinical expertise which he feels have furthered his co-workers’ experiences.

He believes that the aforementioned experience aided the recovery process of the patients he worked with while employed by the employer.

He submits that the granting of a further career break would also be beneficial to the employer’s service and to his professional growth as a mental health professional.   The worker states that he returned from the last career in the midst of a global pandemic as he believed this was the right thing to do to help those experiencing mental health illness.  He agreed to any requests for over time, to work extra hours, work with Covid-19 positive patients, work as a Covid-19 swabber and other exceptional requests and feels disappointed that his hard work, sacrifice and diligence was overlooked by line managers and those who have declined his career break application.

The worker states that he was told informally by some line managers that there will be employment awaiting him on his return to Ireland and for this reason he should not be worried about whether or not he was granted a career break.

The worker at the time of submitting the Worker was seeking to have his career break granted in order that he could travel to Australia.  At the date of the hearing the worker was living in Australia and had resigned his position but was seeking to have the career break granted as a guarantee of having a job to return to.

The substantive matter relates to the refusal by the employer to permit the worker to avail of a second career break in November 2021 in order to travel to Australia.   The employer was not in a position to accede to this request due to service need.

The worker commenced his employment on 19th December 2016 on a Specified Purpose Contract basis as a BSc. Undergraduate.  

The worker became employed as a Registered Psychiatric Nurse from 13th October 2017, he was issued with a contract to reflect this, and he signed same on 22nd December 2017.   In February 2019 the worker submitted a Career Break Application Form.   He advised that it was his first application for a career break with the employer and the period of leave he wished to apply for was for 1 year from 1st July 2019 – 1st July 2020. The reason provided on the form was that he wished ‘…to further my nursing knowledge and experience and utilise the aforementioned on my return to the (named) Mental Health Service.’     His career break was granted from 1st July 2019 – 29th June 2020, subject to certain conditions.  

Within 2 weeks of returning to the employer, on 9th July 2020, a formal academic application was submitted on behalf of the worker in respect of a Post Graduate Diploma in Psychosocial Interventions in Mental Health Care, scheduled to commence in September 2020 and run until May 2021. Funding of €4,750 was approved to facilitate this course of study.

The worker  was notified of same via an e-mail dated 13th July 2020 and a letter which stated the following: ‘You shall be liable to repay the programme tuition fees to the employer if: § You do not complete the programme within 5 years of commencement or § After the completion of the programme you cease working in your employer and have not worked for a minimum period of 12 months or for the length of the academic course undertaken, whichever is longer or § You defer your place on the programme, and do not complete the programme within 5 years and programme fees have been paid.’

By signing the document on 2nd July 2020, the worker gave his agreement to what was written. He also consented to section 4.6, the ‘Applicants Declaration of Understanding’ which stipulates that: ‘I shall be liable to repay the programme fees to the Employer under the outlined conditions.

The worker submitted another Career Break Application Form on 18th March 2021, whilst in the process of completing his Post Graduate Diploma in Psychosocial Interventions in Mental Health Care. He acknowledged that it was not his first application for a career break with the employer and that he had previously been granted a period of career break leave by the employer from 1st July 2019 – 1st July 2020.

The period of leave he wished to apply for via this subsequent application was for 2 years from 1st November 2021 – 1 st November 2023. The reason he provided was ‘To improve my skills and knowledge in Mental Health nursing and use this experience positively on my return to the (named) MHS.’

The worker was advised that, as per the employer Terms and Conditions of Employment (March 2017), the employee ‘must have served since their return from the earlier career break for a period equal to the duration of that career break.’   

The former Acting Area Director of Nursing sent an e-mail communication to Nurse Managers in the area on 25th March 2021 stating: ‘Dear all, I have received some applications for career breaks commencing in the 2nd half of this year. Due to the high number of staff who are eligible for retirement and the uncertainty of staff numbers going forward, no career breaks will be approved this year.’   Despite this email the worker submitted a follow-up Career Break Application Form on 8th July 2021. Again, he acknowledged that it was not his first application for a career break and that he had previously been granted a period of career break leave by the employer from 1st July 2019 – 1 st July 2020. The period of leave he wished to apply for via this application was for 2 years from 1st November 2021 – 1 st November 2023.

The reason he provided was ‘To improve my skills and knowledge in Mental Health nursing and use this experience positively on my return to the (named) MHS.’  He also stated: ‘I had originally submitted this form via post on March 18th, 2021. Unfortunately, at this time I was informed that there was a blanket ban on career breaks. Following consultation with the PNA I exercised my right to appeal this decision to the Human Resources (HR) department.    The worker’s application was again reviewed but was refused due to service needs.

As per the employer Terms and Conditions of Employment an employee’s application may be refused where it is considered that the granting of a career break would have a detrimental effect on the service.

The matter was subsequently dealt with within the employer’s Grievance Procedure. The Stage 1 Grievance Hearing was held on 24th September 2021 and the workers grievance was not upheld.   A Stage 2 grievance hearing took place on 12th October 2021.  Again, the grievance was not upheld, and reasons were provided by letter dated outlining that the following pressures affect the staffing of the named Mental Health Services at the time · Current career breaks · Retirements/Resignations Feb 2021 to November 2021 inclusive · Long term sick leave  · Pregnancy related leave/Covid leave · Nurses cocooning since March 2019 · From Jan 2021 to date, a loss of 8,535 hours due to Covid leave.’ The letter concludes ‘I am satisfied therefore, that the decision to not grant a career break at this time was based on service need and was made in accordance with (named employer) guidance.’

On 20th October 2021, the worker e-mailed Head of Human Resources, explaining that he was hoping to move to Sydney Australia to work as a Mental Health Nurse just 2 weeks later, on 4th November 2021.   He requested a review of his career break application.   A Stage 3 grievance meeting took place on 29th October 2021 the purpose of the meeting was to hear a grievance in relation to a refusal of a career break application. During this meeting the worker confirmed that his flight to Australia was booked for the following week (4 th November 2021) and that he had a job organised through an agency.  The employer expressed concern that a decision to book travel (without approval of a career break) had been made in advance of a Stage 3 hearing on the matter, where the Grievance policy states that the decision will be conveyed in writing to the employee within seven working days of the meeting, i.e., 5th November 2021.  At the hearing on 29th October 2021 the grievance determination was communicated to the worker via e-mail and by post on 3 rd. November 2021. The grievance was not upheld. Following this the worker completed a Leaving Form tendering his resignation. The form states that his last day on pay was 10 th November 2021, thus leaving with immediate effect and not having provided the requisite 1 months’ notice period as per the terms of his employment contract.

The worker has submitted this claim in respect of his employer’s failure to grant him a career break for the period.  He had previously sought and was granted a career break for the period 1st July 2019 – 30th June 2020 during which he worked for the NHS.   He advised the hearing he had wanted to live and work in Australia for two years as his girlfriend had already moved there in August 2021.    

In clarifying its reasoning for the refusal of the second career break the employer again stated that the refusal was due to service needs as it was a time when they were short staffed and under huge pressure due to COVID.

The employer added that it had treated all applications the same at that time and that all were refused due to the needs of the service at the time.  The worker argued that he was aware of others who had been granted a career break at the time.  The employer advised the hearing that they were unaware of any such applications which had been granted but agreed to look into it and provide additional information on the matter post hearing.  This information was provided as agreed.  The additional information provided by the employer confirmed that two career break extensions had been granted to date in respect of 2022/3.   The details of same were provided as follows: Colleague A was granted an initial career break which was subsequently extended. The extension was facilitated as another staff member (colleague B) had made contact with the service on or about the same time advising that they wished to return from their career break earlier than anticipated. The decision maker within the service was aware of the imminent return of colleague B prior to granting the extension on behalf of colleague A. Therefore, it was considered that the net effect was deemed neutral and did not place any interruption to the service.  Colleague C was recently granted a career break extension until 2023. This request was acceded to as it was not a new application, and another staff member (colleague D) notified their intended return to the service this month following a period of long-term sick leave. Again, the extension in this case did not have a detrimental effect on the service as it coincided with the return of another team member. It is worth noting that each career break request or any extension thereof remains at the discretion of management; these are individually reviewed and based on the information available/circumstances prevailing at the time. Decisions to grant or refuse same are subject to service needs.

The Worker was treated no differently or no less favourably than colleagues who submitted career break applications in a similar timeline.

The employer further advised that when the Worker requested his second career break in 2021, the Covid-19 pandemic was continuing to place an unprecedented strain on the health services which, as was widely documented, were at crisis point and severely stretched. In 2022 and beyond, the service began to emerge from this phase, and so decisions around career breaks may not have been as severely impacted by Covid as they were c.1 year beforehand.   As previously advised, the denial of a career break was not confined to the Worker – there were at least three other colleagues who were refused this request around the same timeframe.

By way of further context, approximately three months after returning from his first career break, the Worker was supported by the employer in advancing his studies. He received funding of €4,750 in respect of his Post Graduate Diploma in Psychosocial Interventions in Mental Health Care, which commenced in September 2020 and concluded in May 2021. To ensure compliance with this sponsorship agreement, it would have been anticipated that the Worker would remain employed with them until May 2022 at a minimum. Instead, he left 6 months before this date, in November 2021. In the event of early departure from the service, the terms of the funding agreement require repayment (or part thereof) of the tuition fees. It is noted in this instance that no such reimbursement has occurred to date and the employer has not pursued reimbursement from the worker of the monies outstanding.

The worker advised the hearing that he is seeking a recommendation that the respondent him grant him the career break as requested.

Having considered all of the arguments made in respect of this dispute and considering the circumstances which prevailed at the time of the Workers application for a second career break, I do not recommend in favour of the worker in respect of this dispute.

I do not recommend in favour of the worker.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      

Industrial Relations Act, 1969

CA-00047101-001

10/11/2021

This is a duplicate claim and  I do not recommend in favour of the worker.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      

Industrial Relations Act, 1969

CA-00047101-002

10/11/2021

This is a duplicate claim and  I do not recommend in favour of the worker.