Labour Court Database __________________________________________________________________________________ File Number: CD91126 Case Number: AD9144 Section / Act: S13(9) Parties: PORTIUNCULA HOSPITAL - and - A WORKER;THOMAS V. MC CRANN & SONS, SOLICITORS |
Appeal by a worker against Rights Commissioner's Recommendation No. C.W. 312/89 concerning her hours of attendance at work.
Recommendation:
5. The Court has fully considered the oral and written
submissions of the parties.
The Court finds no grounds to amend the recommendation of the
Rights Commissioner.
The Court would point out however that operation of flexi-time
schemes requires that whilst the requirements of employees are met
the exigencies of the service being provided must be given
priority.
The Court therefore considers the hospital should seek to
implement the recommendation of the Rights Commissioner in an
acceptable manner but the employee should recognise the
requirements of the hospital and endeavour to agree on a
flexi-time arrangement that takes account of the hospital needs.
The Court so decides.
Division: MrMcGrath Mr McHenry Mr Devine
Text of Document__________________________________________________________________
CD91126 APPEAL DECISION NO. AD4491
INDUSTRIAL RELATIONS ACT, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: PORTIUNCULA HOSPITAL
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
and
A WORKER
(REPRESENTED BY THOMAS V. MC CRANN & SONS, SOLICITORS)
SUBJECT:
1. Appeal by a worker against Rights Commissioner's
Recommendation No. C.W. 312/89 concerning her hours of attendance
at work.
BACKGROUND:
2. The worker commenced employment as a clerk/typist with the
Hospital in 1979. Her standard working week is 35 hours per week
(Monday - Friday) which she operated under a flexi-time system.
For her own reasons the worker preferred to commence work each day
at 10.00 a.m. as permitted under the system. For most of the 8
years up to 1987 she was one of a pool of medical secretaries
allocated to consultants. In late 1987 circumstances forced the
Hospital to carry out a rationalisation in the medical secretaries
area. The worker was redeployed as a medical secretary in the
x-ray department. The x-ray department operates a rota system
with a 9.00 a.m. start one month and a 9.30 a.m. or 10.00 a.m.
start the following month, alternating amongst the staff. The
worker continued to operate on the flexi-system with a 10.00 a.m.
morning start. She claims that she was not informed that the
redeployment to the x-ray department would affect her long
established method of operating the flexi-time system. The
Hospital claims that the other staff in the x-ray department
initially agreed to facilitate the worker by allowing her a 10.00
a.m. start but this arrangement subsequently broke down. Some
months after the worker was redeployed to the x-ray department she
was approached by Management regarding her morning starting time
and she agreed to start at 9.00 a.m. on the rota for a trial
period. The worker operated the rota for some time but found it
unsuitable and reverted to a 10.00 a.m. start under the flexi-time
system. There were subsequent discussions between the parties on
the subject of the worker's morning starting time but no agreement
was reached and she continued to operate a 10.00 a.m. start. The
possibility of a transfer to another area within the Hospital
which would allowed her to continue to operate a 10.00 a.m. start
was raised but no satisfactory arrangement was made. In
September, 1989 the worker commenced a period of extended sick
leave. While on sick leave the worker indicated that when
certified fit for resumption of work she would resume work under
the flexi-time system with a 10.00 a.m. start. The Hospital
claimed that a flexible starting time of 10.00 a.m. no longer
existed and the only position available had a 9.00 a.m. start.
The dispute was referred to a Rights Commissioner who investigated
it on 6th February, 1990 and issued the following recommendation
on 15th February, 1990:-
"RECOMMENDATION:
I recommend that the Hospital accepts the worker's right to
her flexible time arrangements and makes appropriate
arrangements for when she returns to work, unless she agrees
to any proposed modification, and that the worker gives the
Hospital as much notice as possible to facilitate whatever
arrangements may be necessary."
(The worker was named in the Rights Commissioner's
recommendation).
The worker was certified fit to resume duties in April, 1990. The
Hospital offered the worker a position in the administration
section which operates a 3 week rota (i.e. starting at 8.00 a.m.,
9.00 a.m. and 12.30 p.m. in sequence). This offer was rejected by
the worker. Her solicitors appealed against the Rights
Commissioner's recommendation under Section 13(9) of the
Industrial Relations Act, 1969 on 13th February, 1991. The Court
heard the appeal in Galway on 24th April, 1991.
WORKER'S ARGUMENTS:
3. 1. The Hospital failed to adhere to the recommendation of the
Rights Commissioner and the worker was left with no option but
to appeal it to the Labour Court, in the hope that a further
finding in her favour will be adhered to. The worker
therefore, appeals to the Labour Court to find in her favour
and uphold the recommendation of the Rights Commissioner.
2. The worker was employed by Portiuncula Hospital as a
clerk/typist. All clerk/typists are interchangeable and can
be transferred at Managements discretion to any post of the
same grade. However, the worker enjoyed flexible working
hours as part of her contract of employment for 8.50 years
approximately. Her entitlement to flexible working has been
acknowledged by long practice and usage and also by written
admission of Management in their letter of the 12th June, 1987
(details supplied to the Court). In those circumstances
Hospital Management in purporting to restrict or deny the
worker her entitlement to flexi-time working hours have acted
in unilateral breach of the terms of her contract of
employment with the Hospital and in complete disregard of
their contractual obligations to her.
3. The Hospital in transferring the worker to the x-ray
department in or about the month of November, 1987 were not
entitled to unilaterally alter the worker's terms of
employment. Management should have informed the worker that
it was intended that such a transfer would involve a
termination of her right to flexi-time. Transfer on these
terms could only have been effected by the Hospital, if the
transfer was agreed to by the worker with her full knowledge,
and with her approval and agreement to the relinquishment of
her right to flexi-time working conditions.
4. The worker's domestic and working arrangements have been
moulded over a period in excess of 8 years by satisfactory
employment at the Hospital because of the inclusion of
flexible working hours as part of her contract of employment.
To refuse to give her an alternative post in which she
continues to enjoy that arrangement is to act in a wholly
unreasonable, unfair, and arbitrary fashion against the worker
in all of the circumstances.
HOSPITAL'S ARGUMENTS:
4. 1. In 1987, the Hospital was forced to carry out a
rationalisation and re-organisation of it's administration
area. The worker was informed at that time, that her then
position was no longer available. The Hospital redeployed
staff within the constraints of positions available. There
was no position available which could have guaranteed the
worker a 10.00 a.m. start.
2. In June, 1987 the worker was offered a position in the
x-ray department which was a full-time position on a rota
system with alternating 9.00 a.m., 9.30 a.m., and 10.00 a.m.
starts. The other staff in the x-ray department agreed to
work the rota in a way that facilitated the worker with a
continuous 10.00 a.m. start. This was an agreement between
the staff concerned and was not a Hospital decision. This
agreement subsequently broke down and caused difficulties
which had to be eventually addressed by Management.
3. There is now no clerk/typist position available which
allows for a 10.00 a.m. start in line with the fixed hours
arrangement which the worker is seeking. Within the
constraints of the rationalisation of the administration area
the Hospital offered the worker a position in the admissions
department which involves a 3 week rota (i.e. 8.00 a.m., 9.00
a.m., and 12.30 p.m. starts in rotation). This offer was made
in April, 1990 and was not accepted by the worker. In July,
1990 the worker was offered the position in the admissions
department with a 12.30 start as other staff had agreed to
take the 8.00 a.m. and 9.00 a.m. starts. This offer was also
not accepted by the worker.
4. The Hospital has made all reasonable efforts to facilitate
the worker's requirements within the rationalisation of its
administration area. For some considerable time the operation
of departments is based on a 9.00 a.m. start for clerical
staff. The facility of flexi-time is available in emergencies
for a temporary period only. There is no provision for a
10.00 a.m. start. If the Hospital is unable to secure a
suitable alternative position for the worker it is prepared to
offer her statutory redundancy terms.
DECISION:
5. The Court has fully considered the oral and written
submissions of the parties.
The Court finds no grounds to amend the recommendation of the
Rights Commissioner.
The Court would point out however that operation of flexi-time
schemes requires that whilst the requirements of employees are met
the exigencies of the service being provided must be given
priority.
The Court therefore considers the hospital should seek to
implement the recommendation of the Rights Commissioner in an
acceptable manner but the employee should recognise the
requirements of the hospital and endeavour to agree on a
flexi-time arrangement that takes account of the hospital needs.
The Court so decides.
~
Signed on behalf of the Labour Court
Tom McGrath
_____________________
30th May, 1991. Deputy Chairman
A.S./J.C.