Case Number: ADJ - 00037826. Workplace Relations Commission

CourtWorkplace Relations Commission
Date01 April 2022
Docket NumberADJ - 00037826
ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969 Investigation Recommendation Reference: ADJ - 00037826 Parties:

Worker

Employer

Anonymised Parties

An employee

A State Agency

Representatives

Jay Power SIPTU

Kiwanna Ennis BL instructed by Rachel Kennedy , Addelshaw Goddard (Ireland) LLP

Dispute:

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 – 00039920 – 001.

18/09/2020

Workplace Relations Commission Adjudication Officer: Jim Dolan

Date of Hearing:

Procedure:

In accordance with Section 13 of the Industrial Relations Act 1969 (as amended) following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute.

Background:

The employee commenced employment with the employer in 1998.

This complaint was received by the Workplace Relations Commission on 18th September 2020.

Summary of Workers Case:

A comprehensive submission was made on the employee’s behalf. A summary of this submission is contained in ADJ – 00029882.

Summary of Employer’s Case:

A comprehensive submission was made on the employer’s behalf. A summary of this submission is contained in ADJ – 00029882.

Conclusions:

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

On 10/10/2019 theemployer advertised a full-time Acting/Developmental Level C role for 9 months duration (ended up 14 months duration) in EBD, the division employee works in since its inception in 2010. On 24/10/2019 the employee submitted her application for the full-time Acting/Developmental Level C role in EBD. On 25/10/2019the employeereceived a phone call from the HR and OD Manager, who informed the employee that she had been made aware by the Head of HR and OD that the employee had a medical condition that prevented her from working full-time. The employee replied by email on 25th October stating how unhappy she was with the HR Manager bringing her medical history into the matter of her application. The employee included some of the detail of her previous health problem in this email. In the final paragraph of this email she states that she hugely values her work life balance and will never work full time.

The HR Manager replied on 30th October 2019 wherein she confirmed that at no point had she indicated that the Complainant was prohibited from applying for the role. Her email continued:

“Given I had indicated the role was a full time position and it subsequently came to my attention within the confidence of the HR role that your part time work arrangement had been agreed on medical grounds, I was indicating that from an employer duty of care perspective we would require further medical evidence that it was prudent for you to be considered for a full time role. I was not aware, nor did I enquire about the nature of the medical reasons for your reduced hours.

There is no letter from St John of God on your HR file. The only reference on our files to a medical related request for reduced hours is held on SRC minutes, with no supporting personal documentation. Under the File Retention Policy, all sick leave records are destroyed after a four year.

I am delighted to hear you have been well. It is our duty of care to ensure that should your working hours increase to full time that this does not impact negatively on your health, which once again was the intention of my discussion with you.

I apologise if I have caused upset following our conversation last week, that was certainly not my intention. If you want to meet me to discuss any of the above, I'd be very happy to do that.”

The Complainant formally withdrew her application for the Level C role citing (a) that it was now clear the role was full time (implying that this was contrary to what the Regional Manager had originally told her) and (b) on account of the poor treatment she had received from HR.

The Head of HR and OD then rang the Complainant to explain that the request for a medical certificate arose from the employer’s duty of care. She encouraged the Complainant to reconsider withdrawing her application. However, the Complainant was insistent on this issue. The Head of HR and OD asked the Complainant if she could get a letter from her doctor confirming she could work fulltime but the Complainant refused to look for this. The Complainant repeated several times that she did not want to work fulltime. During this conversation, the Complainant did however confirm that the HR Manager had not asked her about her medical condition in their conversation on 25th October 2019.

I note that the both the HR Manager and the Head of HR and OD have both stated that they were acting out of a Duty of Care for the...

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