Labour Court Database __________________________________________________________________________________ File Number: CD94462 Case Number: LCR14630 Section / Act: S26(1) Parties: MID-WESTERN HEALTH BOARD - and - PSYCHIATRIC NURSES ASSOCIATION |
Loss of earnings arising from disciplinary action.
Recommendation:
(ii) a signed undertaking by the worker on a personalised
basis as outlined above.
As no agreement was reached the dispute was referred to the
Labour Court on 6th September, 1994 in accordance with
Section 26(i) of the Industrial Relations Act, 1990. A
Labour Court hearing took place on 15th November, 1994.
UNION'S ARGUMENTS:
3. 1. The events which led to the sending off duty of the
worker concerned were artificially created by
management. On Sunday 25th August, 1991 a number of
events occurred which were carefully planned to create a
dispute situation.
2. The worker in refusing an assignment, was not alone
adhering to a Union directive but acting in accordance
with his primary duty to patient care and his
responsibilities under the nurses code of conduct.
3. The worker has been victimised for defending patient
care and for identifying the limitations of his
competence to deal with the responsibilities to the role
assigned to him.
4. Management created the circumstances which led to the
sending off duty of the worker. There were numerous
choices and opportunities to avoid the controversial
rostering. In the circumstances the worker should be
returned to night duty immediately and be compensated
for the loss of his night allowance.
HEALTH BOARD'S ARGUMENTS:
4. 1. The classification of nursing posts with reference to
sex was discontinued following the repeal of Section
17(2)(c)(d) of the Employment Equality Act, 1977 and
subsequent Equality Officer findings. Nursing staff
must now be deployed without reference to sex or marital
status and accordingly staff deployment must be based on
the needs of the patient and the skills of the nurse.
2. The deployment of staff is carried out in a sensitive
manner and in the vast majority of cases with the full
co-operation of the nursing staff. However, situations
can arise when the Board must exercise its prerogative
in the deployment of staff to enable it meet its
obligations in relation to patient care and to
compliance with the law.
3. The Board's position was recognised by the Labour Court
in Recommendation No. 12431 dated 7th June, 1989.
4. The Board confirms its willingness to restore the worker
concerned to night duty immediately following receipt of
one of the assurances specified at the conciliation
conference on 10th November, 1993.
5. The Board must take the necessary steps to avoid a
recurrence of the incident involving the worker. It
cannot be expected to restore him to night duty without
one of the conditions specified at the conciliation
conference on 10th November, 1993 and confirmed in a
letter dated 20th December, 1993 to the Industrial
Relations Officer.
RECOMMENDATION:
Having heard the submissions and arguments it is clear to the
Court that the employee who is central to this dispute has been
placed in an invidious position and used as a vehicle by which a
broader dispute might be resolved. This has not happened and the
unfortunate employee finds himself at a financial loss for
carrying out a Union instruction.
The Court is concerned that the Union involved has failed to
conduct a ballot of its members on a Labour Court Recommendation
issued in 1989 and which is central to this dispute. Rather they
appear to have placed the responsibility resisting the
implementation of that recommendation on individual members. This
course of action is regrettable and one which in the Court's view
is liable to bring about a recurrence of this type of incident
involving individual members.
The Court is also concerned at the delay on behalf of the Board in
responding to the Union's request for a referral to the Labour
Relations Commission of this individual's case.
The Court was presented with conflicting recollection as to what
occurred at a meeting in Portlaoise and as to the penalty which
the Board imposed. To avoid a recurrence the Court urges the
parties for the future to agree minutes and where disciplinary
action is involved the details be committed to writing.
In all the circumstances of the case the Court recommends that:-
(a) The employee be restored immediately to the night
roster.
(b) That he accepts that the board has the right to assign
him to any ward subject to working under protest if
necessary, whilst the agreed grievance procedure is
invoked.
(c) In view of its statement above the Court cannot
recommend concession of the Union's claim for full
compensation for loss of earnings.
Division: Ms Owens Mr McHenry Mr Rorke
Text of Document__________________________________________________________________
CD94462 RECOMMENDATION NO. LCR14630
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990
PARTIES:
MID-WESTERN HEALTH BOARD
AND
PSYCHIATRIC NURSES ASSOCIATION
SUBJECT:
1. Loss of earnings arising from disciplinary action.
BACKGROUND:
2. The worker concerned in the dispute is employed by the Board
as a nurse at St. Joseph's Psychiatric Hospital, Limerick.
In June, 1989 the Labour Court issued LCR No. 12331 in which
it recommended that nurses should be obliged to undertake
integrated assignments if requested to do so, under protest
if necessary, and to process any grievance concerning such an
assignment in accordance with management's proposed disputes
procedure.
On the night of 25th August, 1991 the worker concerned (on
Union direction) refused to take up his assignment to a
female ward. Because of the worker's refusal to carry out
the role assigned to him he was reverted to day duty which
resulted in the loss of his night duty premium.
In September, 1991 discussions took place in Portlaoise
following which management put forward the following
proposals in relation to integrated assignments:
(i) "The Union make a declaration that it accepts that
nursing staff appointments prior to 1982 are not excempt
from deployment to integrated assignments.
(ii) That a local meeting take place at which the chief
nursing officer will restate the Board's current policy
regarding the integrated deployment of staff and outline
a statement which will be circulated to each member.
This statement will include the principles of sensitive
and rational deployment".
Further meetings took place in May, 1993 and June, 1993 but
no agreement was reached. The dispute was referred to the
Labour Relations Commission. A conciliation conference was
held on 10th November, 1993. The positions of the parties at
conciliation were as follows:-
Union's Position:-
(i) The Union indicated that it was willing to put Labour
Court Recommendation No. 12431 to a ballot of its
members.
(ii) The union sought a commitment from the Board to
continue to deal with integration and deployment in a
sensitive and co-operative manner and also that the
worker (concerned with this dispute) should be
rostered for night duty with effect from January,
1994.
(iii) The Union was not prepared to ballot on Labour Court
Recommendation No. 12431 while the worker was still
removed from night duty i.e. his return to the night
duty roster was stated as a precondition to the
holding of the ballot.
Health Board'S Position:-
The Board welcomed the Union's intention to ballot on Labour
Court Recommendation No. 12431 and stated that it had no
difficulty in confirming its intention to continue to deal
with integration and deployment in a sensitive and
co-operative manner as heretofore. It stated however that
it could not agree to restore the worker to rostered night
duty in the absence of either of the following:-
(i) a positive result of the ballot indicating acceptance
by the Union of Labour Court Recommendation No. 12431
or
(ii) a signed undertaking by the worker on a personalised
basis as outlined above.
As no agreement was reached the dispute was referred to the
Labour Court on 6th September, 1994 in accordance with
Section 26(i) of the Industrial Relations Act, 1990. A
Labour Court hearing took place on 15th November, 1994.
UNION'S ARGUMENTS:
3. 1. The events which led to the sending off duty of the
worker concerned were artificially created by
management. On Sunday 25th August, 1991 a number of
events occurred which were carefully planned to create a
dispute situation.
2. The worker in refusing an assignment, was not alone
adhering to a Union directive but acting in accordance
with his primary duty to patient care and his
responsibilities under the nurses code of conduct.
3. The worker has been victimised for defending patient
care and for identifying the limitations of his
competence to deal with the responsibilities to the role
assigned to him.
4. Management created the circumstances which led to the
sending off duty of the worker. There were numerous
choices and opportunities to avoid the controversial
rostering. In the circumstances the worker should be
returned to night duty immediately and be compensated
for the loss of his night allowance.
HEALTH BOARD'S ARGUMENTS:
4. 1. The classification of nursing posts with reference to
sex was discontinued following the repeal of Section
17(2)(c)(d) of the Employment Equality Act, 1977 and
subsequent Equality Officer findings. Nursing staff
must now be deployed without reference to sex or marital
status and accordingly staff deployment must be based on
the needs of the patient and the skills of the nurse.
2. The deployment of staff is carried out in a sensitive
manner and in the vast majority of cases with the full
co-operation of the nursing staff. However, situations
can arise when the Board must exercise its prerogative
in the deployment of staff to enable it meet its
obligations in relation to patient care and to
compliance with the law.
3. The Board's position was recognised by the Labour Court
in Recommendation No. 12431 dated 7th June, 1989.
4. The Board confirms its willingness to restore the worker
concerned to night duty immediately following receipt of
one of the assurances specified at the conciliation
conference on 10th November, 1993.
5. The Board must take the necessary steps to avoid a
recurrence of the incident involving the worker. It
cannot be expected to restore him to night duty without
one of the conditions specified at the conciliation
conference on 10th November, 1993 and confirmed in a
letter dated 20th December, 1993 to the Industrial
Relations Officer.
RECOMMENDATION:
Having heard the submissions and arguments it is clear to the
Court that the employee who is central to this dispute has been
placed in an invidious position and used as a vehicle by which a
broader dispute might be resolved. This has not happened and the
unfortunate employee finds himself at a financial loss for
carrying out a Union instruction.
The Court is concerned that the Union involved has failed to
conduct a ballot of its members on a Labour Court Recommendation
issued in 1989 and which is central to this dispute. Rather they
appear to have placed the responsibility resisting the
implementation of that recommendation on individual members. This
course of action is regrettable and one which in the Court's view
is liable to bring about a recurrence of this type of incident
involving individual members.
The Court is also concerned at the delay on behalf of the Board in
responding to the Union's request for a referral to the Labour
Relations Commission of this individual's case.
The Court was presented with conflicting recollection as to what
occurred at a meeting in Portlaoise and as to the penalty which
the Board imposed. To avoid a recurrence the Court urges the
parties for the future to agree minutes and where disciplinary
action is involved the details be committed to writing.
In all the circumstances of the case the Court recommends that:-
(a) The employee be restored immediately to the night
roster.
(b) That he accepts that the board has the right to assign
him to any ward subject to working under protest if
necessary, whilst the agreed grievance procedure is
invoked.
(c) In view of its statement above the Court cannot
recommend concession of the Union's claim for full
compensation for loss of earnings.
~
Signed on behalf of the Labour Court
13th December, 1994 Evelyn Owens
F.B./D.T. ____________
Chairman
Note
Enquiries concerning this Recommendation should be addressed to
Mr. Fran Brennan, Court Secretary.