Labour Court Database __________________________________________________________________________________ File Number: CD8775 Case Number: AD8735 Section / Act: S13(9) Parties: NORTH EASTERN HEALTH BOARD - and - ATGWU |
Appeal by the Health Board against Rights Commissioner's Recommendation CM/17425.
Recommendation:
6. Having regard to the particular circumstances of this case,
when, due to a misunderstanding, it seems that the parties have
committed themselves to accepting the Rights Commissioner's
recommendation as final, the Court therefore decides that the
Rights Commissioner's recommendation be upheld in respect of the
two workers here concerned. The Court wishes to further point out
that in other circumstances its decision might not necessarily be
the same.
Division: Mr O'Connell Mr Shiel Mr Walsh
Text of Document__________________________________________________________________
CD8775 THE LABOUR COURT AD35/87
SECTION 13(9) INDUSTRIAL RELATIONS ACT, 1969
APPEAL DECISION NO. 35 OF 1987
Parties: NORTH EASTERN HEALTH BOARD
and
AMALGAMATED TRANSPORT AND GENERAL WORKERS' UNION
Subject:
1. Appeal by the Health Board against Rights Commissioner's
Recommendation CM/17425.
Background:
2. The two workers concerned are employed in Louth County
Hospital in Dundalk and up to recently lived in the Nurses' Home
in the Hospital. In early May, 1986, staff who were availing of
the accommodation in the Nurses' Home were advised by the Matron
that they would have to find alternative accommodation by the 31st
August, 1986. This was because the Hospital's X-Ray facilities
were being expanded and were being relocated in the Nurses' Home.
The Union claim that this was not confirmed to the people
concerned until several weeks later and it also advised those
concerned to ignore Management's instruction. It sought a meeting
with Management to discuss alternative accommodation for its
members but Management were unwilling to do this. Subsequently,
all but the two workers concerned vacated the premises. The Board
ceased to make deductions from their pay in respect of the
accommodation from the week-ending the 5th October, 1986 and
commencement of the reconstruction work had to be deferred. On
the 27th November, an ultimatum in relation to leaving the
premises was issued to the two workers. Following discussions
between the Board and the Union, it was agreed that the two
employees would leave the premises and that the Union's claim for
compensation would be referred to a Rights Commissioner for
investigation and recommendation.
3. The Rights Commissioner, having investigated the dispute on
the 6th January, 1987, issued the following recommendation on the
8th January:
"The two employees enjoyed the accommodation for so long
that it acquired the status of a right by usage, not
however a right to maintain permanently but one for
which they should get some consideration on forfeiting.
Taking into account the Board's financial constraints
and that the Union have only these two claimants, I
recommend a compensatory payment of #475 each."
This was unacceptable to the Board which appealed it to the Labour
Court under Section 13(9) of the Industrial Relations Act, 1969,
on the 29th January, 1987. A Court hearing took place in Dundalk
on the 1st April, 1987.
Board's arguments:
4. (a) The Board in the past has provided accommodation at
some of its institutions to facilitate staff wishing to
reside on the Hospital complex. It has never been a
condition of employment or a requirement that staff
reside in the Board's accommodation and the provision
of such accommodation is not part of the remuneration
of Health Board employees. In the same way as staff
pay for meals provided in the Hospital, those availing
of the Board's accommodation also pay for this
facility. The number of staff availing of
accommodation in the Louth County Hospital and indeed
in the Board's other institutions has fluctuated over
the years.
(b) The Board's decision to alter the use of the Nurses'
Home in no way alters or worsens the conditions of
employment of those concerned. The provision of
living-in accommodation has always been at the
discretion of the Board and as such was never an
entitlement or a condition of employment of any staff
member. In the circumstances, the Board cannot
reasonably be required to provide alternative
accommodation or indeed to compensate for the loss of
facility which the Board had no obligation to provide.
(c) The Home in question has accommodation for 44 people.
By May, 1986, there were ten employees residing there.
The trend throughout the Board's region is that staff
generally are no longer seeking or wishing to reside in
Health Board accommodation. In the Louth County
Hospital alone, the demand for accommodation has
dramatically decreased - there were 37 residents in the
Hospital's accommodation in 1979. Even if the Board
had not decided to use the Home for another purpose, it
would have been necessary to review the viability of
continuing to provide accommodation for such small
numbers. Indeed, in the Board's other hospitals
throughout the region, such a review is under
consideration for some time.
(d) The Board has facilitated those concerned as far as
possible and has given ample time to enable them to
arrange alternative accommodation. They were informed
as far back as 1983 that the accommodation being
provided for them in the Nurses' Home was of a
temporary nature. Having received notice on the 1st
May, 1986, of the Board's proposals in relation to the
Home, the contractors did not commence work until the
8th December, 1986, i.e. more than seven months later.
(e) Concession of the claim could have repercussive effects
with regard to other staff who vacated the Nurses' Home
when requested to do so. Concession could also
encourage staff in other institutions where the Board,
as already indicated, is reviewing its position. On
the day following commencement of the reconstruction
work, the other six attendants who had previously
vacated the premises at the Matron's request, submitted
a claim for compensation and indeed made a reference to
legal action in pursuit of their claim - they had
apparently been misinformed that the Board had agreed
to pay compensation to the two claimants concerned.
(f) The Board does not have available the necessary finance
to enable it to offer compensation to persons in
circumstances such as this. Last year, there was once
again a substantial shortfall in the Board's allocation
from the Department of Health. It is common knowledge
that all Health Boards are in serious financial
difficulties. In 1986, in order to keep within its
allocation, the Board was forced to introduce measures
affecting all areas of its operation to curtail
expenditure, e.g. locum cover has been drastically
curtailed; leave for training and study purposes has
been virtually eliminated; leave for training and
study in exceptional circumstances has been eliminated;
the ad hoc dental and ophthalmic schemes are no longer
in existence; the provision of transport to the public
for attendance at clinics, etc., has been drastically
reduced. Notwithstanding these measures, the Board, in
1986, was forced, in an effort to maintain patient care
at the highest possible level, to adopt a deficit
budget which anticipated an overrun for 1986 of
#420,000. In fact, at the end of 1986, the overrun was
well in excess of #700,000 and this will of course have
to be carried forward to 1987, when according to most
predictions, we can expect a further reduction in the
Board's allocation. Any concession of this claim will
accordingly result in a curtailment of the services
provided by the Board for the public.
(g) The Board regrets the misunderstanding concerning the
status of the findings of the Rights Commissioner. Its
use of the word 'arbitration' in the letter of the 11th
December, was not meant in the context of 'binding
arbitration'.
Union's arguments:
5. (i) The Union is very surprised by the decision of the
Board to appeal the findings of the Rights Commissioner
as it had given the Union an assurance on the 6th
December, 1986, that it would be bound by the findings.
This is specified in a letter dated the 11th December
(copy submitted to the Court).
(ii) The two workers concerned have almost 26 years
residence in the home between them. As both have been
in residency for such a lengthy period it is quite
clearly an implied part of their contract of
employment. Money for this accommodation was deducted
at source on a weekly basis and at the time of leaving
the weekly cost was #13 which covered light, heating
and cooking etc.
DECISION:
6. Having regard to the particular circumstances of this case,
when, due to a misunderstanding, it seems that the parties have
committed themselves to accepting the Rights Commissioner's
recommendation as final, the Court therefore decides that the
Rights Commissioner's recommendation be upheld in respect of the
two workers here concerned. The Court wishes to further point out
that in other circumstances its decision might not necessarily be
the same.
~
Signed on behalf of the Labour Court
John O'Connell.
_________________________
4th May, 1987.
D.H./J.C. Deputy Chairman.