Labour Court Database __________________________________________________________________________________ File Number: CD88173 Case Number: AD8819 Section / Act: S13(9) Parties: BEAUMONT HOSPITAL - and - IRISH DISTRIBUTIVE AND ADMINISTRATIVE TRADE UNION |
Appeal by the Union on behalf of a porter against Rights Commissioner's recommendation No. BC210/87, concerning inclusion in the voluntary severance scheme.
Recommendation:
In the light of the above I recommend to the worker that he
transfer to Beaumont Hospital and that he accept that the
refusal of the Hospital authorities to allow him leave under
the voluntary severance package was due to the impartial
implementation of the universal arrangements concerning
voluntary severance in the public sector.
I recommend also that the hospital authorities allow him a
leeway of seven working days from the receipt of my
recommendation in order that he can make up his mind to
either transfer to Beaumont or to terminate his employment.
(The worker concerned was mentioned by name in the Rights
Commissioner's recommendation).
The Union appealed the recommendation to the Labour Court under
Section 13(9) of the Industrial Relations Act, 1969. The Court
heard the appeal on 25th March, 1988.
UNION'S ARGUMENTS:
4. 1. The Rights Commissioner accepted verbal assurances that
the early retirement scheme had certain exclusive
specifications relation to age and experience. However, the
details of these exclusive specifications were not made
available to the Union, despite repeated requests, till after
the worker concerned was dismissed on 27th January, 1988.
2. Had the Union been aware of the formula for selection
used in the scheme and in the light of the Hospital's refusal
to meet to discuss the transfer, it would have asked the
Labour Court or the Rights Commissioner to determine
severance pay for the worker concerned as a right - as was
the case - concerning hospital porters in Sir Patrick Dunne's
Hospital (LCR11062).
3. By letter, Beaumont Hospital terminated the worker's
employment, (details provided to the Court). However, he has
not terminated his employment at St. Laurence's Hospital. He
had no contract of employment with Beaumont Hospital.
4. The worker concerned was forced into his present
situation by the Hospital's refusal to deal with his
grievance relating to the move. To add injury to insult, the
Hospital then refused the scheme to him after notifying him
in writing of his entitlement. This letter did not state
that the offer was exclusive to 50 employees over 50 years of
age. In fact some of those who were selected for the scheme
do not meet these criteria, (details provided to the Court).
This contradicts the Hospital's claim to the Rights
Commissioner that the scheme was limited to those over 50
years of age.
5. It was the Department of Health's intention to meet each
of the staff interest groups in relation to the transfer.
This was not done in the case of this Union. Furthermore, in
the new contract of employment forwarded to the worker
concerned on 30th September, 1987, the Hospital refers to
"terms and conditions currently under negotiation with your
trade union". No such negotiations took place. The Hospital
also refused on 3 occasions to go to a third party in order
to resolve the dispute.
HOSPITAL'S ARGUMENTS:
5. 1. The worker concerned was employed by the former St.
Laurence's Hospital but never took up duty in Beaumont
Hospital on being refused the terms of the early retirement
scheme.
2. While 78 of the Hospital's domestic and portering staff
sought the application of the scheme, it was only possible to
accommodate 55 of those who applied. All applicants over 50
years of age were granted the terms of the scheme. The
balance of approvals were on the basis of length of service
in proportion to the ratio of male to female applicants.
3. The worker concerned, in common with all other health
service employees had no entitlement as of right to the terms
of the scheme.
4. The selection criteria used by the Hospital was applied
in a strictly impartial fashion and any suggestion to the
contrary is incorrect.
5. The Rights Commissioner has found that "...... the
refusal of the hospital authorities to allow his leave under
the voluntary severance package was due to the impartial
implementation of the universal arrangements concerning
voluntary severance in the Public Sector".
DECISION:
6. Having considered the submissions made by the parties the
Court is of the opinion that the Rights Commissioner's
recommendation should stand. The Court so decides.
Division: Mr O'Connell Mr Shiel Mr Walsh
Text of Document__________________________________________________________________
CD88173 APPEAL DECISION NO.AD1988
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: BEAUMONT HOSPITAL
LOCAL GOVERNMENT STAFF NEGOTIATIONS BOARD
and
IRISH DISTRIBUTIVE AND ADMINISTRATIVE TRADE UNION
SUBJECT:
1. Appeal by the Union on behalf of a porter against Rights
Commissioner's recommendation No. BC210/87, concerning inclusion
in the voluntary severance scheme.
BACKGROUND;
2. The worker concerned was employed as a porter by St.
Laurence's Hospital in 1978. On 1st December, 1986, the Union
wrote to the personnel department of the new Beaumont Hospital
serving a claim on the workers behalf and seeking discussions on
the proposed transfer of staff to the new location. The Hospital
responded by referring the Union to the Irish Congress of Trade
Unions (I.C.T.U.) who were co-ordinating all claims in relation to
the transfer. The Union failed to get a response from the
I.C.T.U. No meeting to discuss the transfer took place between
the Union and the Hospital. The worker concerned subsequently
applied for the Public Service Early Retirement Package, however,
his application was refused. The Union then informed the Hospital
that the worker concerned would continue to report to St.
Laurence's Hospital as his transfer to the new Beaumont Hospital
had never been negotiated. Management consequently gave him 7
days within which to comply with the transfer or otherwise his
employment would be deemed to have been terminated by him. The
dispute was investigated by a Rights Commissioner on 17th
December, 1987. At the Rights Commissioner's request the Hospital
Management's deadline was lifted.
3. On 13th January, 1988, the Rights Commissioner issued the
following findings and recommendation -
Findings
Having investigated the matter and given full and careful
consideration to the points made by both parties in their
detailed submission I have come to the following
conclusions -
1. Given all the circumstances I can appreciate the workers
anxiety not to transfer to Beaumont Hospital.
2. I am totally satisfied following clear and categoric
assurances given to be by the Local Government Staff
Negotiations Board that the hospital authorities treated
the application of the worker for voluntary severance no
less favourably than all other applications and the fact
they did not qualify found its source in the reality
that his post is required in Beaumont Hospital.
Recommendation
In the light of the above I recommend to the worker that he
transfer to Beaumont Hospital and that he accept that the
refusal of the Hospital authorities to allow him leave under
the voluntary severance package was due to the impartial
implementation of the universal arrangements concerning
voluntary severance in the public sector.
I recommend also that the hospital authorities allow him a
leeway of seven working days from the receipt of my
recommendation in order that he can make up his mind to
either transfer to Beaumont or to terminate his employment.
(The worker concerned was mentioned by name in the Rights
Commissioner's recommendation).
The Union appealed the recommendation to the Labour Court under
Section 13(9) of the Industrial Relations Act, 1969. The Court
heard the appeal on 25th March, 1988.
UNION'S ARGUMENTS:
4. 1. The Rights Commissioner accepted verbal assurances that
the early retirement scheme had certain exclusive
specifications relation to age and experience. However, the
details of these exclusive specifications were not made
available to the Union, despite repeated requests, till after
the worker concerned was dismissed on 27th January, 1988.
2. Had the Union been aware of the formula for selection
used in the scheme and in the light of the Hospital's refusal
to meet to discuss the transfer, it would have asked the
Labour Court or the Rights Commissioner to determine
severance pay for the worker concerned as a right - as was
the case - concerning hospital porters in Sir Patrick Dunne's
Hospital (LCR11062).
3. By letter, Beaumont Hospital terminated the worker's
employment, (details provided to the Court). However, he has
not terminated his employment at St. Laurence's Hospital. He
had no contract of employment with Beaumont Hospital.
4. The worker concerned was forced into his present
situation by the Hospital's refusal to deal with his
grievance relating to the move. To add injury to insult, the
Hospital then refused the scheme to him after notifying him
in writing of his entitlement. This letter did not state
that the offer was exclusive to 50 employees over 50 years of
age. In fact some of those who were selected for the scheme
do not meet these criteria, (details provided to the Court).
This contradicts the Hospital's claim to the Rights
Commissioner that the scheme was limited to those over 50
years of age.
5. It was the Department of Health's intention to meet each
of the staff interest groups in relation to the transfer.
This was not done in the case of this Union. Furthermore, in
the new contract of employment forwarded to the worker
concerned on 30th September, 1987, the Hospital refers to
"terms and conditions currently under negotiation with your
trade union". No such negotiations took place. The Hospital
also refused on 3 occasions to go to a third party in order
to resolve the dispute.
HOSPITAL'S ARGUMENTS:
5. 1. The worker concerned was employed by the former St.
Laurence's Hospital but never took up duty in Beaumont
Hospital on being refused the terms of the early retirement
scheme.
2. While 78 of the Hospital's domestic and portering staff
sought the application of the scheme, it was only possible to
accommodate 55 of those who applied. All applicants over 50
years of age were granted the terms of the scheme. The
balance of approvals were on the basis of length of service
in proportion to the ratio of male to female applicants.
3. The worker concerned, in common with all other health
service employees had no entitlement as of right to the terms
of the scheme.
4. The selection criteria used by the Hospital was applied
in a strictly impartial fashion and any suggestion to the
contrary is incorrect.
5. The Rights Commissioner has found that "...... the
refusal of the hospital authorities to allow his leave under
the voluntary severance package was due to the impartial
implementation of the universal arrangements concerning
voluntary severance in the Public Sector".
DECISION:
6. Having considered the submissions made by the parties the
Court is of the opinion that the Rights Commissioner's
recommendation should stand. The Court so decides.
~
Signed on behalf of the Labour Court
John O'Connell
_______________________
14th April, 1988
B.O'N./P.W. Deputy Chairman