Labour Court Database __________________________________________________________________________________ File Number: CD87479 Case Number: AD8763 Section / Act: S13(9) Parties: E.H.B. - and - ITGWU |
Appeal, by the Board, against Rights Commissioner Recommendation No. D.M. 31/87, concerning - (a) the payment of travelling time to a psychiatric nurse, and (b) the payment of compensation for loss of earnings to two domestic staff. CLAIM A
Recommendation:
Claim A - Claim for the payment of travelling time to a Registered
Psychiatric Nurse
9. The Court has noted the fact that there was no evidence to
show that the nurse in question incurred any additional expense or
inconvenience while working at Mount Pleasant Hostel. The Court
has also noted that no claim for travelling was submitted on her
behalf until two and a half years after she completed her
assignment at Mount Pleasant Hostel.
In these circumstances the Court upholds the Board's appeal.
Claim B - Payment of compensation for loss of earnings to two
domestic staff
Having regard to the circumstances under which the Board conceded
compensation to another member of staff involved in the same
transfer, the Court does not find that grounds have been
established for altering the Rights Commissioner's recommendation
in this case.
The Court so decides.
Division: Mr Fitzgerald Mr McHenry Mr O'Murchu
Text of Document__________________________________________________________________
CD87479 THE LABOUR COURT AD63/87
Section 13(9) INDUSTRIAL RELATIONS ACT, 1969
APPEAL DECISION NO. 63 OF 1987
PARTIES: EASTERN HEALTH BOARD
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
Subject:
1. Appeal, by the Board, against Rights Commissioner
Recommendation No. D.M. 31/87, concerning -
(a) the payment of travelling time to a psychiatric nurse,
and
(b) the payment of compensation for loss of earnings to
two domestic staff.
CLAIM A
Background:
2. The worker concerned was appointed by the Board to the post of
Registered Psychiatric Nurse, with effect from 5th September,
1978. On 9th April, 1981, she was assigned to St. Brendan's
Psychiatric Hospital. From 20th February, 1983, to 27th April,
1984, she was assigned to duty at Mount Pleasant Hostel. Since
then she has been re-assigned to St. Brendan's. On 29th October,
1986, the Union sought discussions with the Board regarding the
payment of travelling time and expenses to the nurse in respect of
the period she was assigned to the hostel, as per a
Union/Management agreement of 1977, regarding payment of
travelling time to staff working in external units.
3. The Board explained that it pays travelling expenses at the
rate of one hour's travelling time to nurses from St. Brendan's
who are rostered to work at the hostel on a relief basis. However
expenses are not paid to nurses assigned there on a long term
basis, as it is their normal place of employment. Other officers
of the Board do not receive travelling expenses for reporting to
work. The matter was referred to a Rights Commissioner for
investigation. On 4th June, 1987, the Rights Commissioner issued
the following recommendation -
"There was no evidence that working at Mount Pleasant Hostel
involved the nurse in any additional expense or inconvenience
but I am satisfied that the payment claimed is in accordance
with the agreement, and I, therefore recommend concession of
the claim.
The Eastern Health Board may feel very strongly that payments
like this are not warranted in the situation facing the
Board, staff and patients in 1987, but it has the options of
negotiating a change if it so desires. Pending agreement on
such a change, the existing arrangements continue to apply".
(The nurse was mentioned by name in the recommendation).
The Board rejected the Rights Commissioner's recommendation and on
9th June, 1987, appealed it to the Labour Court under Section
13(9) of the Industrial Relations Act, 1969. A Court hearing took
place on 16th July, 1987.
Board's arguments:
4. (a) The 1977 agreement does not apply to the nurse
concerned. She was not subject to the normal
rostering arrangements from St. Brendan's and has not
been treated any differently to any other nurse
assigned to the hostel on a long-term basis.
(b) The nurse performed her duties at the hostel at all
times from 20th February, 1983 to 27th April, 1984,
and it was, for the purpose of travelling expenses,
her official headquarters. Having regard to paragraph
15(b) of circular No. 10/71 from the Minister for
Health, which states that -
"No travelling expenses shall be paid in respect of
journeys between an officers home and his official
headquarters, i.e. the premises at which he
normally performs his duties or such other premises
as the Chief Executive Officer may direct in cases
of doubt",
travelling expenses are not payable to the nurse in
respect of the period she was assigned to the hostel.
(c) A similar claim for the payment of travelling expenses
to a nurse assigned to Vergemount Psychiatric Clinic
was the subject of a Rights Commissioner's
investigation. The Rights Commissioner found that
there was no justification for the payment of
travelling expenses.
(d) Concession of the claim would have serious
repercussions as it would establish a principle of
paying travelling expenses to nurses for reporting to
their normal place of employment.
Union's arguments:
5. (i) The Board has broken the Union/Management Agreement,
signed in 1977, which recommended the payment of
travelling time from 1975 on.
(ii) All external units administered by St. Brendan's were
staffed from the existing pool of staff in the
Hospital, apart from a small number of staff who were
recruited directly to those units. The rostering in
these units is exactly the same as the internal units.
Staff can be rostered to any unit, internal or
external, at the discretion of the Nursing
Administrator. There is no long term assignments or
transfers to the external units.
(iii) The nurse did not submit a request to work in any
particular unit. Therefore, the Board cannot adopt
the attitude that the nurse is not entitled to the
payment because she was working in an external unit at
her own requst.
(iv) The Board has made reference to a previous Labour
Court Recommendation No. 9552, concerning the payment
of travel time. The Union contends that this
Recommendation is not relevant as it concerns a person
assigned to an external unit in a permanent
supervisory capacity to which the payment never
applied.
CLAIM B
Background:
6. In July, 1980, the Board allocated a number of patients and
staff from St. Brendan's to Cherry Orchard Hospital as an interim
arrangement. At that time the Board agreed to pay two hours'
travelling time, at overtime rates, to all staff working there.
In 1985, following discussions with the unions, these arrangements
ceased and the staff returned to St. Brendan's. The two workers
concerned, as a result, lost about #35 per week. The Union
referred the matter to a Rights Commissioner for investigation,
indicating that a similar claim by a deputy ward sister, resulting
from the return to St. Brendan's, had already been investigated by
a Rights Commissioner who recommended #1,250 compensation. On 4th
June, 1987, the Rights Commissioner issued the following
recommendation -
"The only merit I can find in the claim is that compensation
has been paid to a Staff Nurse involved in the same transfer.
The two members of the Domestic Staff should, in my view, be
paid exactly the same compensation as the Staff Nurse i.e.
#1,250 each, and I so recommend".
The Board rejected the Rights Commissioner's recommendation and on
9th June, 1987, appealed it to the Labour Court under Section
13(9) of the Industrial Relations Act, 1969. A Court hearing took
place on 16th July, 1987.
Board's arguments:
7. (a) The staff assigned to Cherry Orchard Hospital were
compensated in respect of any inconvenience associated
with their assignment. They were aware that the
assignment and the conditions attached were of a
temporary nature.
(b) The Board contends that there is no basis for the
payment of compensation. The Board is of the view
that the travelling time payments were not in fact
'earnings' but an ad hoc payment to compensate staff
in respect of any inconvenience associated with an ad
hoc arrangement.
(c) The return of staff to St. Brendan's was thoroughly
discussed with the unions and they were advised during
the course of the discussions that the travelling time
payments would be terminated. The question of
compensation for the loss of these payments was never
an issue.
(d) The amount of compensation recommended by the Rights
Commissioner is not justified. The earnings of the
domestic staff are just half the earnings of the
deputy ward sister and as the travelling time payments
were based on the hourly rate of the individual staff
concerned, it is not proper that the same compensation
should apply.
(e) The financial crisis in the health service has led to
cutbacks. As a result all funds must be directed
towards maintaining services to patients and
preserving employment. Compensatory payments of this
nature cannot be financed without further cuts in
services and employment.
Union's arguments:
8. (i) The return of the two domestic staff to St. Brendan's
resulted in a loss of #35 per week. In numerous cases
compensation has been awarded to people when the nett
loss of earnings was much smaller. Normally, if an
employee is receiving an emolument for at least two
years it is then considered to be part of their
earnings. The withdrawal of such emoluments
constitutes a loss of earnings.
(ii) The reason the Union is only pursuing the claim on
behalf of the two domestic staff and the previously
dealt with deputy ward sister, is that all other staff
who worked in the unit were subject to the normal
rostering from St. Brendan's. This meant that nobody
else had any longer than a period of three or four
months duty in Cherry Orchard Hospital. Therefore,
the prospect of a spin-off affect is not real.
DECISION:
Claim A - Claim for the payment of travelling time to a Registered
Psychiatric Nurse
9. The Court has noted the fact that there was no evidence to
show that the nurse in question incurred any additional expense or
inconvenience while working at Mount Pleasant Hostel. The Court
has also noted that no claim for travelling was submitted on her
behalf until two and a half years after she completed her
assignment at Mount Pleasant Hostel.
In these circumstances the Court upholds the Board's appeal.
Claim B - Payment of compensation for loss of earnings to two
domestic staff
Having regard to the circumstances under which the Board conceded
compensation to another member of staff involved in the same
transfer, the Court does not find that grounds have been
established for altering the Rights Commissioner's recommendation
in this case.
The Court so decides.
~
Signed on behalf of the Labour Court
Nicholas Fitzgerald
__________________________
31st July, 1987
B.O'N./P.W. Deputy Chairman