Labour Court Database __________________________________________________________________________________ File Number: CD9184 Case Number: AD9125 Section / Act: S13(9) Parties: BON SECOURS HOSPITAL - and - A WORKER |
Appeal by the worker against Rights Commissioner's Recommendation No. B.C. 230/90.
Recommendation:
6. The Court having fully considered the views expressed by the
parties in their written and oral submissions upholds the findings
of the Rights Commissioner and clarifies the issues raised as
follows:-
Clause 4 - The Court notes it is the intention of the Hospital
that the complainant carry out a substantial amount of the
phlebotomy work and in any case in excess of 30% of such work.
The Court considers that arrangements should be made to assign
such phlebotomy work to the complainant as will achieve the
above aim. The arrangements to be monitored for a period of
three months and at the end of that time the arrangements to
be assessed with a view to making such changes as will achieve
the objective of ensuring the complainant will deal with a
substantial amount of the phlebotomy work.
Clause 6 - It is the view of the Court that this payment was a
gross amount and subject to such deductions as normally apply.
The Court so decides.
Division: MrMcGrath Mr Keogh Mr Rorke
Text of Document__________________________________________________________________
CD9184 APPEAL DECISION NO. AD2591
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: BON SECOURS HOSPITAL
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
and
A WORKER
SUBJECT:
1. Appeal by the worker against Rights Commissioner's
Recommendation No. B.C. 230/90.
BACKGROUND:
2. The worker concerned commenced employment in the Hospital as a
laboratory assistant in October, 1979, the workers' duties also
included phlebotomy work. On 31st July, 1990 a worker whose
duties included phlebotomy work left the Hospital's employment.
As a result of this the Hospital reviewed the phlebotomy service
and employed a nurse on a locum basis from 1st August to 1st
September, 1990 to carry out phlebotomy work. The Hospital
subsequently appointed an existing member of the nursing staff to
carry out phlebotomy and other duties from 8.30 a.m. to 4.30 p.m.
Monday to Friday (this worker's hours have now changed to 8.00
a.m. to 2 p.m.). The worker concerned objected to this on the
basis that her phlebotomy duties which she had been involved in
for many years would decrease. The worker requested that she be
identified as the main phlebotomist and that her salary be
reviewed, she is currently on #8,640 p.a. On 26th September, 1990
the Hospital offered to put the worker on point 9 of the Grade II
clerical scale at #10,139. This was rejected by the worker who
claimed that she should be on the top point of the phlebotomist
scale (#11,452) and receive payment of seven years retrospection.
This was rejected by the Hospital and the matter was subsequently
referred to the Rights Commissioner's Service for investigation
and recommendation. A Rights Commissioner investigated the
dispute on 7th December, 1990 and issued the following
recommendation on the 18th December, 1990 -
"In the light of the above I recommend as follows:-
1. Effective from 1st January, 1991 the worker to be
placed on the 3rd point of the phlebotomist scale.
2. Effective from 1st July, 1991 the worker to be advanced
to the 4th point of the phlebotomist scale.
3. Thereafter annual adjustments to take place from the
1st July of each year.
4. The worker to carry out such phlebotomy work as the
hospital assigns to her.
5. In assigning phlebotomy work the hospital authorities
to take into account the long satisfactory experience
which the worker has had in that area.
6. An ex gratia sum of #2,750 to be paid to the worker in
settlement of her claim for retrospective application."
(the worker was referred to by name in the recommendation).
3. Discussions subsequently took place on the recommendation.
The Hospital's position was that it was prepared to assign all
external (out-patient) work to the worker and the worker would
also cover all the phlebotomy requirements of the Hospital in the
afternoons. However this was unacceptable to the worker on the
basis that it would not account for sufficient phlebotomy work and
on 25th January, 1991 the worker appealed the Rights
Commissioner's recommendation to the Labour Court under Section
13(9) of the Industrial Relations Act, 1969. The worker's appeal
was based on a request for clarification of points 4 and 6 of the
recommendation. The Court heard the appeal on 7th March, 1991.
WORKER'S ARGUMENTS:
4. 1. In 1980 the worker concerned was offered the opportunity
to train as a phlebotomist under the laboratory supervisor.
For the past eleven years the worker has regularly taken most
of the bloods and other members of the laboratory staff have
assisted in taking bloods. When the worker who left in July,
1990 informed management of her decision to leave a staff
meeting took place at which it was confirmed that the worker
concerned here was and would continue to be the main
phlebotomist in the laboratory. However, when the nurse was
employed in early September, she took all bloods as she has no
other laboratory skills. The worker was never informed of
this and as a result was left with only laboratory work and
therefore lost the position which had been confirmed to all
the laboratory staff at the staff meeting.
2. The appeal of the worker concerned is based on a
requirement for clarification of points 4 and 6 of the Rights
Commissioner's recommendation. The worker concerned is of the
opinion that point No. 4 which states that the worker
concerned should carry out such phlebotomy work as the
Hospital assigns to her is a vague statement and requires
clarification from the Hospital. It appears that a new
full-time position in phlebotomy has been created. Although
the worker concerned has carried out this work and other
duties competently over a ten year period it seems that her
experience has been completely overlooked. The Hospital has
offered the worker concerned only 15% (approximately) of the
phlebotomy work and has therefore ignored point 5 of the
Rights Commissioner's recommendation. The worker concerned is
now doing less phlebotomy work than before and should be given
a reasonable share of the phlebotomy work i.e. at least 50%.
3. The Hospital is of the opinion that the ex gratia sum of
#2,750 recommended by the Rights Commissioner must be taxed.
The worker concerned has received legal advice on this issue
and has been informed that compensatory payments are not
taxed. The worker would like this point clarified. The
worker concerned was satisfied that the Rights Commissioner's
recommendation recognised her long period as a phlebotomist in
the Hospital. However, since then the worker finds herself in
the same position in relation to her laboratory work as
before. The worker concerned should be reinstated as the main
phlebotomist in the laboratory, be paid at an appropriate
level on the phlebotomy scale and be compensated adequately
for the years that she has carried out phlebotomy work but was
not correctly paid for the job.
HOSPITAL'S ARGUMENTS:
5. 1. The worker concerned was initially employed as a
laboratory aide/laboratory assistant. While the worker's role
in taking blood samples developed over time, at no stage was
she solely involved in phlebotomy work and other staff members
were involved in carrying out phlebotomy work from time to
time (details supplied to the Court). On 31st July, 1990 a
worker who had shared phlebotomy duties with the worker
concerned left the Hospital. This created a gap in the
phlebotomy service and led to a review of the total service
provided by the Hospital. The Hospital felt that the service
should be upgraded and at departmental meetings held in June,
1990 staff also expressed a preference for an experienced
phlebotomist to replace the worker who had left. The Hospital
therefore appointed an existing member of the nursing staff to
carry out phlebotomy and other duties from 8.30 a.m. to 4.30
p.m. Monday to Friday (this has now been changed to 8.00 a.m.
to 2.00 p.m.). This is in line with the practice in other
Hospitals. It was intended that the phlebotomy duties of the
worker concerned here would continue as before.
2. It is clear that the terms of the Rights Commissioner's
recommendation are quite generous and form a very reasonable
settlement to the matter. In subsequent discussions the
Hospital sought to elaborate on its understanding of the
Rights Commissioner's recommendation and how it would apply to
the worker. It is not practicable to set out a rigid sharing
arrangement between the two phlebotomists as flexibility and
the need to provide for cross-cover would have to apply.
However, the Hospital was prepared to assign all external
(out-patient) work to the worker. The worker would also cover
all the phlebotomy requirements of the Hospital in the
afternoons as the other phlebotomist would operate in a
reduced capacity as her hours would reduce to 8.00 a.m. to
2.00 p.m. This would account for a minimum of 30% of the
phlebotomy work and could increase significantly. In
addition, a laboratory technician has been employed and this
will reduce a number of the worker's other duties. There is
no basis for altering the Rights Commissioner's recommendation
and the Labour Court should endorse it and disallow the
worker's appeal.
DECISION:
6. The Court having fully considered the views expressed by the
parties in their written and oral submissions upholds the findings
of the Rights Commissioner and clarifies the issues raised as
follows:-
Clause 4 - The Court notes it is the intention of the Hospital
that the complainant carry out a substantial amount of the
phlebotomy work and in any case in excess of 30% of such work.
The Court considers that arrangements should be made to assign
such phlebotomy work to the complainant as will achieve the
above aim. The arrangements to be monitored for a period of
three months and at the end of that time the arrangements to
be assessed with a view to making such changes as will achieve
the objective of ensuring the complainant will deal with a
substantial amount of the phlebotomy work.
Clause 6 - It is the view of the Court that this payment was a
gross amount and subject to such deductions as normally apply.
The Court so decides.
~
Signed on behalf of the Labour Court
Tom McGrath
________________________
21st March, 1991 Deputy Chairman
U.M./J.C.