Labour Court Database __________________________________________________________________________________ File Number: CD90293 Case Number: LCR13080 Section / Act: S67 Parties: SOUTH EASTERN HEALTH BOARD - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Claim by the Union for a payment to compensate one nursing officer who suffered a loss of income arising from a decision to allocate night duty to all nursing officers, on a rotational basis.
Recommendation:
5. The Court having fully considered the oral and written
submissions of the parties finds that the S.E.H.B. must have the
right to assign staff as service requirements and good practices
demand.
However this right carries with it the obligation to deal with
staff affected by such changes in a fair and equitable manner.
In this case the complainant had been employed in a permanent
night shift for a period of 6 years. Given that the previous
holders of the job since 1949 had been employed on permanent
nights it was reasonable for the complainant to expect he would
continue to work nights on a permanent basis.
It is the view of the Court that, when the decision was made to
rotate the work, arrangements should have been agreed with the
complainant in the first instance.
This was not done and subsequent representations were not
responded to by the Board. In the circumstances of the case it is
the view of the Court that the complainant be compensated by the
payment of #2,500 in full and final settlement of the claim.
The Court so recommends.
Division: MrMcGrath Mr Keogh Mr Rorke
Text of Document__________________________________________________________________
CD90293 RECOMMENDATION NO. LCR13080
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 67
PARTIES: SOUTH EASTERN HEALTH BOARD
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Claim by the Union for a payment to compensate one nursing
officer who suffered a loss of income arising from a decision to
allocate night duty to all nursing officers, on a rotational
basis.
BACKGROUND:
2. 1. The worker concerned was employed as a night duty nursing
officer in St. Declan's acute Unit of Waterford Regional
Hospital, from July, 1981 until 1987. In 1987, nursing
Management decided that night duty work should be allocated to
all nursing officers, on a rotational basis. This resulted in
a night/day duty rotation system for nursing officers with the
claimant's working pattern from June 1st 1987 until he
retired, in 1989 as follows:-
Days 29. 6. 1987 - 15.12.1987
Nights 16.12. 1987 - 24. 7.1988
Days 25. 7. 1988 - 1. 2.1989
Nights 2. 7. 1989 - until retired.
The Union objected to the proposed new working system claiming
that the worker who was the permanent charge night nurse had
been appointed to that post after it was advertised internally
as a vacant position for filling. The Union claimed that the
worker had held the post on a permanent basis as had all
previous incumbents who held the post since 1949. Hospital
Management maintained that holders of the post were never
given any commitment that they would be assigned on a
permanent basis as it is the prerogative of the chief nursing
officer to assign duties as services demand.
2. The Union is claiming a compensation payment for the
worker of one year's compensation at #50 per week i.e. loss of
night duty premium. The Union is also claiming that because
the worker's pension entitlement is based on salary during the
last three years of service, he had to take early retirement
in order to protect his pension benefit. The worker should be
compensated to take account of earnings lost because of his
early retirement.
3. The dispute was referred to the conciliation service of
the Labour Court on 20th February, 1990 and it was the subject
of a conciliation conference on 30th May, 1990. As no
agreement was reached the Union requested a full Court
hearing. The Board agreed and the Court investigated the
dispute in Waterford on 24th October, 1990.
UNION'S ARGUMENTS:
3. 1. The worker concerned was appointed to the position of
permanent charge night nurse in July, 1981, following an
internal advertisement which read as follows:
"Due to forthcoming retirement of charge night nurse
(named) applications are invited for post of permanent
charge night nurse in St. Declan's Unit from 26.7.1981.
Signed C.W.O. (named)."
The worker commenced duty in St. Declan's Unit on 26th July,
1981, as no one senior to him applied for the position. He
continued to hold that position until 29th June, 1987 when a
rotation system was introduced for the particular duty.
2. The position of permanent charge night nurse was always
held by one individual at a time. It was a position that was
never rotated. Details of workers who held the position of
permanent charge night nurse since 1949, in St. Joseph's (St.
Otteran's Hospital) and in St. Declan's Unit since 1965,
confirm this (details supplied to the Court).
3. The worker's earnings were reduced by #50 per week when he
was assigned to day duty. During the period June, 1987 -
August, 1989 he worked on day duty for approximately 51 weeks.
He is accordingly entitled to one year's compensation at a
rate of #50 per week.
4. The worker's pension benefit is based on earnings over the
last three years of service. As his earnings were greatly
reduced because of his assignment to day duty, the worker was
forced to take early retirement in order to include some of
the night duty premium in his pension. The worker retired in
August, 1989 at age 59. He could have worked for a further
six years and availed of pension based on full night duty
premium, if he had not been assigned to day/night duty
rotation. He should be compensated for the loss of earnings
due to early retirement before his appointed time.
5. The Union requested the Board to operate under existing
procedures until a satisfactory arrangement was agreed for the
worker. This did not happen. The compensation claim is
outstanding since 1987. The Court is asked to recommend a
lump sum payment to compensate the worker for loss of earnings
arising from his day duty work and from early retirement.
BOARD'S ARGUMENTS:
4. 1. The post of night duty nursing officer was usually filled
on the basis of ascertaining the interest among workers in
undertaking the assignment. The more senior applicant in
terms of service completed would obtain the post by agreement
among colleagues. There was never a commitment that the night
duty officer would remain indefinitely on that duty as it is
always open to the chief nursing officer to reassign staff as
service demands dictate. The fact that some workers remained
full time in the night duty post in the past does not mean
that the practice cannot be changed in response to new
constraints. The Board could never guarantee that any
particular assignment would continue indefinitely.
2. In 1987, the Board had a severe cut-back in its budget
allocation which resulted in hospital closures, reduction in
wards and redeployment of staff. The admission unit at St.
Otteran's Hospital closed, leaving St. Declan's Unit the only
remaining acute order. This resulted in nursing officers not
having exposure to an acute area for experience purposed and
consequently, in both male and female nursing officers
expressing an interest in undertaking night duty in St.
Declan's. Management felt there was an obligation on the
Board to meet nursing officers legitimate request for night
duty.
3. The claim was first raised in 1987, when the situation was
fully explained to the Union and the worker concerned and no
further action was taken. It is unreasonable to seek
compensation some two years later when the new arrangement was
accepted at the time of its introduction.
4. The worker was not forced to retire early because of his
removal from night duty. The Board did not influence him in
any way concerning his future employment and it cannot be held
responsible for any potential earnings that he may or may not
have enjoyed over a period of six years had he chosen to
remain in employment. Nursing staff in psychiatric hospitals
are free to retire at anytime between 55 and 65 years of age.
The worker did not indicate to the Board that he was retiring
because of the change in his working practices.
5. The Board must have flexibility in assigning workers as
service requirements and good practices demand. Workers are
compensated for working unsocial hours and any payments to
take account of consequential losses will limit the Board's
ability to manage and fund the service where rostering changes
give rise to compensation claims.
6. In 1989, the Board's financial position precluded it from
considering any compensation claims and all such claims were
strongly resisted. In 1990, its financial position is no
better and any over expenditure in budget will be the first
charge on the Board's 1991 allocation.
RECOMMENDATION:
5. The Court having fully considered the oral and written
submissions of the parties finds that the S.E.H.B. must have the
right to assign staff as service requirements and good practices
demand.
However this right carries with it the obligation to deal with
staff affected by such changes in a fair and equitable manner.
In this case the complainant had been employed in a permanent
night shift for a period of 6 years. Given that the previous
holders of the job since 1949 had been employed on permanent
nights it was reasonable for the complainant to expect he would
continue to work nights on a permanent basis.
It is the view of the Court that, when the decision was made to
rotate the work, arrangements should have been agreed with the
complainant in the first instance.
This was not done and subsequent representations were not
responded to by the Board. In the circumstances of the case it is
the view of the Court that the complainant be compensated by the
payment of #2,500 in full and final settlement of the claim.
The Court so recommends.
~
Signed on behalf of the Labour Court
Tom McGrath
__________________________
21st November, 1990 Deputy Chairman.
A.McG./J.C.