Labour Court Database __________________________________________________________________________________ File Number: CD873 Case Number: AD8737 Section / Act: S13(9) Parties: EASTERN HEALTH BOARD - and - FWUI |
Appeal, by the Board, against a Rights Commissioner's recommendation concerning: (a) Stoppage of pay to ambulance drivers and attendants at Loughlinstown Hospital for alleged non-performance of duties on 24th June, 1986, and (b) overtime payment to ambulance controllers at Loughlinstown Hospital for a period in June, 1986.
Recommendation:
9. In the understanding that, in all the circumstances of this
case, the Rights Commissioner's recommendation does not imply that
workers should be paid for time not worked or that the rostering
of overtime is other than a function of management, the Court
upholds his recommendation.
The Court so decides.
Division: Mr Fitzgerald Mr Heffernan Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD873 THE LABOUR COURT AD3787
Section 13(9) INDUSTRIAL RELATIONS ACT, 1969
APPEAL DECISION NO 37 OF 1987
Parties: EASTERN HEALTH BOARD
and
FEDERATED WORKERS' UNION OF IRELAND
Subject:
1. Appeal, by the Board, against a Rights Commissioner's
recommendation concerning:
(a) Stoppage of pay to ambulance drivers and attendants at
Loughlinstown Hospital for alleged non-performance of duties
on 24th June, 1986, and
(b) overtime payment to ambulance controllers at Loughlinstown
Hospital for a period in June, 1986.
Background: Item (a)
2. Short term Ambulance Controller vacancies in the Board's
ambulance base at Loughlinstown have traditionally been covered by
means of overtime among existing Controllers or a temporary
appointment of an ambulance driver. A vacancy occurred in June,
1986 and the Board employed a temporary Controller from outside to
fill the vacancy with effect from 10th June, 1986. On 24th June,
1986, seven ambulance drivers and attendants, rostered for duty on
the 4 p.m. to 12 midnight shift, took part in unofficial
industrial action in protest at the employment of the Controller
from outside. The Board deducted one day's pay from the seven.
In response to Union requests that no deduction should be made, it
was agreed that there would be no deduction pending an
investigation by a third party. A Rights Commissioner
investigated the matter on 7th November, 1986 and on 20th November
recommended as follows:
"..... I believe that as a matter of particular principle the
Eastern Health Board is entitled to seek deduction of payment
for the hours during which the industrial action occurred.
However, in the light of the clear protestation of future
good behaviour given on behalf of the men involved I
recommend that deduction of pay should not be implemented but
rather held in suspension until June 1987. If in the time
intervening between June 1986 and June 1987 the profession of
good behaviour and adherence to the normal dispute procedure
are fulfilled then the Eastern Health Board should eradicate
its intention to deduct the payments in question".
Background: Item (b)
3. During the period 9th to 25th June, 1986 the three existing
Controllers reported in turn for overtime duty on the shift which
was being worked by the relief Controller. No payments were made
to the three men in respect of this time, the Board contending
that they were not assigned to this duty. The Union sought
payment to them and this matter was also considered by the Rights
Commissioner on 7th November, 1986. The Union sought payment of
#300, #250 and #600, gross, respectively to the three individuals.
The Rights Commissioner recommended as follows:
".... I cannot find in favour of the men involved that they
should be paid overtime for the hours they attended when in
fact they were not legitimately instructed to so attend.
However, I am conscious that a situation of some confusion
had arisen to which the Eastern Health Board had made its own
contribution. I am also influenced by the fact that the
irregular action on the Union's part to advise these men to
attend was conditioned by impeccable motives. Therefore, I
recommend that the three men involved (the workers were named
in the Rights Commissioner's Recommendation) should not be
paid overtime for the hours worked but rather be given each
an ex-gratia payment of #125 to compensate for the travelling
expenses incurred in covering the period 9th June, 1986 to
25th June, 1986".
4. The Board appealed the Rights Commissioner's recommendation in
respect of both item (a) and item (b) to the Labour Court under
Section 13(9) of the Industrial Relations Act, 1969. The Court
heard the appeal on 9th April, 1987.
Union's arguments:
Item (a)
5. (i) The Union objected to the temporary employment of the
outside Controller as it was in breach of existing
procedures and this was made known to management. The
shop steward was given an assurance that the
Controller's employment would be terminated from a
particular date but this did not occur. This gave rise
to the dispute situation on 24th June.
(ii) On that date, although a dispute situation existed, the
workers concerned covered all emergency calls and all
routine calls with the exception of three "return calls"
(i.e. requests to take patients home from hospital).
Therefore, almost all work was performed and certainly
there was no withdrawal of essential services.
(iii) Given the situation as outlined above, the Union
considers that there should be no deduction of pay for
the 24th June, 1986.
Item (b)
6. (i) Since the introduction of the Controller positions in
July, 1986, the agreed custom and practice is that
Controllers roster each other for overtime and a listing
of the workers who have covered the overtime is
presented to the supervisor at the end of the week.
This system has worked well for all concerned and was
adhered to by Controllers during the period 9th to 25th
June, as normal.
(ii) During the period the three Controllers who did the
overtime had duties to carry out. At no time were they
instructed to leave the base.
(iii) The Union is not satisfied with the fact that the Rights
Commissioner did not recommend full payment for this
period, but nevertheless seeks rejection of the Board's
appeal against the recommendation.
Board's arguments:
Item (a)
7. (a) The Board previously agreed, in the interest of the
ambulance service, to maintain, where possible, only
trained personnel 'on the road'. In this instance the
Union asked that one of the existing ambulance personnel
act as Controller and that a relief worker be selected to
fill this post. As the relief ambulance personnel panel
was exhausted at that time and as the vacancy was of a
long-term nature, the Board was unable to comply with the
Union's request.
(b) A very serious situation arose when the seven ambulance
staff took unofficial industrial action without adhering
to the well established disputes procedure of the Board.
The ambulance staff withdrew their services without prior
notification to management. Because of the essential
nature of the service, the action taken by the staff
cannot be condoned and there is no justification for
making any payment to the workers in respect of the
duration of the unofficial action.
(c) The Board considers that to pay wages to staff who take
unofficial action, as in this case, would undermine its
authority to manage its service and staff.
Item (b)
8. (a) The relief Controller was on duty on all occasions that
the three other Controllers reported for unrostered
overtime. Therefore, all the duties of the vacant
Controller's post were being performed by the relief
Controller leaving no duties for the other men to
perform. As these men were not required and did not
perform any of the functions of the post the Board sees
no reason to make any payment to them.
(b) As the employer it is the Board's prerogative to decide
when overtime is worked and by whom. The Board therefore
sees no reason to remunerate staff for attending for duty
when not rostered to do so.
(c) The Board considers that the Controllers who reported for
unrostered duty were not genuinely offering their
services but were actually partaking in unofficial
industrial action.
(d) In his recommendation, the Rights Commissioner recommends
that the workers be granted an ex-gratia payment of #125
each to compensate them for travelling expenses from the
9th June, 1986 to the 25th June, 1986. The Rights
Commissioner is accepting the principle that the Board is
not obliged to remunerate the Controllers for attending
the ambulance base when they were not requested to do so
by the Board. He recommends that a payment be made in
respect of the travelling expenses alone. As none of the
expenses for which the Rights Commissioner is
recommending payment were incurred in respect of the
Controllers' authorised duties, the Board maintains that
it has no obligation to make a compensatory payment to
them.
Decision:
9. In the understanding that, in all the circumstances of this
case, the Rights Commissioner's recommendation does not imply that
workers should be paid for time not worked or that the rostering
of overtime is other than a function of management, the Court
upholds his recommendation.
The Court so decides.
~
Signed on behalf of the Labour Court
11th May, 1987 Nicholas Fitzgerald
AK/PG --------------------
Deputy Chairman