Labour Court Database __________________________________________________________________________________ File Number: CD91496 Case Number: AD92159 Section / Act: S13(9) Parties: KILRUSH DISTRICT HOSPITAL LIMITED - and - A WORKER;THE IRISH NURSES ORGANISATION;MICHAEL F. NOLAN, SOLICITOR |
Appeal against Rights Commissioner's recommendation No. S.T. 225/91 dated 31st July, 1991.
Recommendation:
5. The Court has very carefully considered the submissions made
by the parties. It finds it regrettable that the achievement of
members of the community in reopening the hospital has been to a
degree diminished by the breakdown in relationships between those
who were so closely involved. It further regrets that the
opportunity was not availed of by the Management to accept the
Court's assistance, if not to effect a reconciliation, at least to
achieve a modus vivendi.
Having regard to the specific matter at issue the Court fully
accepts that the terms of employment offered to the claimant
constituted unwarranted and unacceptable interference with her
professional responsibilities as Matron of the Hospital, and that
she was unfairly dismissed.
Having regard to the apparently total breakdown in relationships
between those concerned the Court does not consider it practicable
to decide on her reinstatement. On the matter of the level of
compensation recommended by the Rights Commissioner the Court in
ordinary circumstances would not favour any award greater than
that provided under the terms of the Unfair Dismissals Act.
However, in this case the Court takes the view that much of the
responsibility for the delay in the issue of this decision lies
with the Management of the Hospital. Consequently the Court is of
the opinion that the amount awarded by the Rights Commissioner
should stand.
The Court so decides.
Division: Mr O'Connell Mr Keogh Mr Devine
Text of Document__________________________________________________________________
CD91496 APPEAL DECISION NO. AD15992
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: KILRUSH DISTRICT HOSPITAL LIMITED
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
and
A WORKER
(REPRESENTED BY THE IRISH NURSES ORGANISATION)
and
(MICHAEL F. NOLAN, SOLICITOR)
SUBJECT:
1. Appeal against Rights Commissioner's recommendation No. S.T.
225/91 dated 31st July, 1991.
BACKGROUND:
2. In October, 1987 the worker concerned was appointed as Matron
of Kilrush Community Hospital. She was given a written contract
of employment on the 1st January, 1988 and the hospital opened on
the 15th January, 1988. It was originally administered by a local
Committee of seven people including the worker concerned. In 1989
the hospital was extended and a full-time administrator was
appointed. The worker concerned was offered a new contract of
employment which she signed under protest on the grounds that
there was a substantial diminution in her duties and her authority
as Matron. In January, 1991 Kilrush District Hospital Limited was
formed with a board of Directors (including some of the members of
the original Committee). In March, 1991 the worker was offered a
further contract of employment which she refused to sign. She was
dismissed on the 30th May, 1991. She claimed that her dismissal
was unfair and the issue was referred to a Rights Commissioner for
investigation. On the 31st July, 1991 the Rights Commissioner
issued his recommendation as follows:-
"I recommend that the claimant receives £30,000 (say thirty
thousand pounds) in full and final settlement of all her
claims both statutory and at common law arising from her
employment from 1/1/1988 to its severance on the 30th May,
1991 which I recommend was unfair in the particular
circumstances".
The recommendation was appealed to the Labour Court by the
Hospital on the 11th September, 1991 (the last day on which an
appeal could be lodged in compliance with Section 36(2) of the
Industrial Relations Act, 1990). The Court investigated the
dispute in Limerick on the 3rd December, 1991. At the hearing the
I.N.O. and the worker's legal representative requested permission
to also appeal the recommendation on the grounds that the worker
should be re-instated. The Court adjourned the hearing to
consider this question. It subsequently advised the parties that
once an appeal had been lodged by either side, the Court was
entitled to hear all arguments put to it, and to reach such
conclusion as it thought proper in the circumstances. The hearing
resumed on 29th January, 1992, and concluded on that date. Some
weeks later, the Court contacted the parties to request that they
reconvene before the Court to hear certain proposals the Court
wished to put to them. However, by letter dated 9th April, 1992,
the Secretary of the Company advised the Court that the Company
wished to withdraw its appeal against the Rights Commissioner's
recommendation. The Court made enquiries as to whether the
withdrawal of the appeal meant that the dispute had been settled,
and was informed that there had been no settlement. The Court
therefore informed the parties that it would proceed to issue its
decision forthwith.
I.N.O. ARGUMENTS:
3. 1. The contribution of the worker concerned was so successful
that some ten months after opening, the hospital was extended
to cater for twenty five extra patients. However on returning
from a period of annual leave the worker was very upset to
learn that Management had made changes in her absence and
without any discussion with staff (details supplied to the
Court). When the worker attempted to revert to the status quo
she was advised that if she did not obey Management
instructions she would be dismissed. Following the expansion
of the hospital an administrator was appointed. To date this
administrator has received an approximate 90% increase in
salary while the salary of the worker concerned is 50% below
that of a matron in a similar health board hospital.
2. Since the establishment of the new Company Management has
acted in an extremely high handed and arbitrary fashion. The
worker was issued with a second contract in 1989, and a third
contract in 1990. Management refused to accept that her
original contract was a permanent one. The Union would
contend that it is, and the Rights Commissioner confirmed this
view in his findings in June, 1991. "She was unfairly
dismissed in that she was faced with accepting new imposed
working conditions by a deadline date. Such a practice does
not conform with proper industrial relations practice in the
Public Service".
3. The new Company which has been set up are merely trustees
for the community and are answerable to the Committee of
parish representatives and locally their continued presence as
trustees is under investigation. The delay by Management in
lodging their appeal has resulted in financial losses for the
worker concerned (details supplied to the Court). The
Organisation is seeking:
(1) Financial compensation.
(2) The worker's position as Matron of the hospital to be
confirmed as per the job description provided to her by
the Company.
(3) All salaries/monies owed to her from the date of her
dismissal.
WORKER'S ARGUMENTS:
4. 1. The worker concerned was appointed to the post of Matron
by the Committee set up in 1987. That resolution of the
Committee is and was binding and has never been revoked. The
Company subsequently formed by some members of the Committee
was done so far the purpose of the legal protection of limited
liability, but this Company is no more than a bare trustee for
the Committee which in turn represents the local community.
It is extremely important to stress that the Company is a
servant of the Committee, and not its master. The original
contract dated 1st January, 1988 was a permanent contract.
The worker could only be dismissed for stated misbehaviour or
incompetence and there was never a question about her
behaviour or competence. The subsequent contracts of 1989 and
1990 sought to restrict the duties and responsibilities of the
Matron despite the fact that the worker already had a binding
contract, the terms of which could not be varied except by
agreement between the parties. The worker concerned was quite
willing to have the administrator deal with all non-medical
and routine administrative matters but was not prepared to
accept a diminution of her contractual rights.
2. The worker has over thirty years experience as a
professional nurse and matron and is more than happy to have
her work as a professional nurse evaluated by any other
suitably qualified matron. She is willing to run the hospital
in accordance with her original appointment by the Committee.
She has prepared a list of items (details supplied to the
Court) which she, as Matron, feels are properly within the
scope of her employment as Matron, and which will not
interfere in any way with the administration of the hospital.
The Company states that it is willing to appoint her as
Matron, but only subject to very restricted duties. She
should not however be dismissed simply because the terms of
the contract cannot be agreed. As stated earlier she can only
be dismissed for stated misbehaviour or incompetence and in
the absence of this, she does not accept that the Company's
decision to dismiss her is legally correct.
The worker has compiled a list of duties (details supplied to
the Court) which she feels are standard for any Matron of such
a unit; it is proposed by way of compromise that this issue
could be resolved by the Company agreeing to the majority of
these clauses being inserted into her new contract and to
review the position in twelve months time. In the meantime,
during that period, the position could be monitored at regular
intervals by an outside, suitably qualified person, Matron or
Hospital Administrator to examine whether or not the list of
duties is being complied with.
3. The worker concerned should be re-instated, with immediate
effect, into her position as Matron; she has suffered extreme
stress and hardship over a period of six months since her
dismissal and this should be reflected in the amount of
compensation awarded for loss of earnings and extreme personal
disruption since that time.
COMPANY'S ARGUMENTS:
4. 1. As the hospital developed and expanded it was found
necessary to form a limited liability company, mainly for
insurance reasons and the protection of staff and the Board.
It was decided to disband the Committee and change the format
to a Company limited by guarantee in order to apply for
charitable status. Following a meeting of the Committee,
members were given the opportunity to become directors if such
did not conflict with the Articles of Association. The Board
was then in a position to offer permanent contracts to its
employees including the worker concerned. She was offered a
contract on the 13th March, 1991. The worker requested time
to consider the contract. Following numerous meetings the
Board further amended her contract and she was given a final
opportunity to sign by Monday 27th May, 1991. On 29th May,
1991 the Board offered a further extension to the worker but
was informed by the I.N.O. that she was not signing the
contract. On 30th May, 1991 the Board informed the worker by
letter that her decision to terminate her contract was
regretted; she was paid all outstanding monies owed to her.
2. The fundamental issue involved in this case is the right
of the Board to manage the hospital as it sees fit. The Board
makes use of the expertise of various professional parties to
run the hospital including doctors, nurses and other staff.
The worker concerned, by her actions, has lost the confidence
of the Board. The bond of trust necessary in any
employer/employee relationship has irretrievably broken down.
The hospital has operated very successfully since the worker
concerned ceased her employment there in May. The acting
Matron has worked the job description in dispute without
difficulty since June, 1991.
3. While the Board, in order to bring matters to a final
conclusion, is prepared to consider a modest severance payment
it cannot accept the Rights Commissioner's recommendation of
£30,000. This is a grossly excessive settlement figure in the
context of the maximum remuneration under the Unfair
Dismissals Act, 1977. The Board does not accept that the
worker was unfairly dismissed. The fact that the worker
concerned, at the very least, contributed to the termination
of her own employment would also reduce any compensation due
to her. The Board has at all times made every effort to meet
the demands of the worker concerned. However, it is totally
unreasonable for the Board to re-employ the worker given the
events of recent months, including the very successful
operation of the Hospital since she ceased working there in
May. Over a prolonged period the Board repeatedly attempted
to have the worker sign an appropriate contract which she
repeatedly declined to do. Ultimately the Board had no option
but to dismiss her.
DECISION:
5. The Court has very carefully considered the submissions made
by the parties. It finds it regrettable that the achievement of
members of the community in reopening the hospital has been to a
degree diminished by the breakdown in relationships between those
who were so closely involved. It further regrets that the
opportunity was not availed of by the Management to accept the
Court's assistance, if not to effect a reconciliation, at least to
achieve a modus vivendi.
Having regard to the specific matter at issue the Court fully
accepts that the terms of employment offered to the claimant
constituted unwarranted and unacceptable interference with her
professional responsibilities as Matron of the Hospital, and that
she was unfairly dismissed.
Having regard to the apparently total breakdown in relationships
between those concerned the Court does not consider it practicable
to decide on her reinstatement. On the matter of the level of
compensation recommended by the Rights Commissioner the Court in
ordinary circumstances would not favour any award greater than
that provided under the terms of the Unfair Dismissals Act.
However, in this case the Court takes the view that much of the
responsibility for the delay in the issue of this decision lies
with the Management of the Hospital. Consequently the Court is of
the opinion that the amount awarded by the Rights Commissioner
should stand.
The Court so decides.
~
Signed on behalf of the Labour Court
John O'Connell
______________________
25th May, 1992 Deputy Chairman.
T.O'D/J.C.