Labour Court Database __________________________________________________________________________________ File Number: CD94562 Case Number: AD9531 Section / Act: S13(9) Parties: MID WESTERN HEALTH BOARD - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by both parties against Rights Commissioner's Recommendation No. ST 154/94 concerning the operation of a roster by a worker.
Recommendation:
The Court having considered all the circumstances of this case
finds no grounds for amending the Rights Commissioner's
Recommendation.
The Court upholds the Rights Commissioner's Recommendation and
rejects the appeal.
The Court so decides.
Division: Mr Flood Mr Keogh Mr Rorke
Text of Document__________________________________________________________________
CD94562 APPEAL DECISION NO. AD3195
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES:
MID WESTERN HEALTH BOARD
AND
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by both parties against Rights Commissioner's
Recommendation No. ST 154/94 concerning the operation of a
roster by a worker.
BACKGROUND:
2. 1. The worker has been employed as an Assistant Chief
Nursing Officer (A.C.N.O.) by the Board since January
1986. The worker's claim is that she suffered a
financial loss due to alleged unilateral changes in
roster, which took effect from April 1991.
2. In April 1991, following a reorganisation, the worker
was redeployed to rehabilitation services. As a result,
her roster changed from 6 working days every 2 weeks to
9 working days every 2 weeks and her hours of duty on
alternate Sundays were reduced from 13 hours to 8 hours
for which she receives a premium payment. The worker
accepted the assignment under protest and she submitted
a claim for compensation for the financial loss suffered
and for the more frequent attendance caused by the new
roster.
3. In October 1993, the A.C.N.O. community services and the
A.C.N.O. rehabilitation services assignments were merged
and the worker was appointed to the position. Her
roster was changed to 8 days of 8 hours and 2 days of 7
hours over 2 weeks.
4. The worker proceeded with her claim for loss and it was
investigated by a Rights Commissioner on 7th September,
1994. The Rights Commissioner's Recommendation as
follows was issued on 26th September, 1994.
"In relation to the Castlerea Formula of twice the
actual annual loss, I do not find it relevant.
However, I am conscious that the Court has granted
2.5 the annual loss in a Western Health Board
subsidiary for professional staff such as the
claimant. In these circumstances I do not see why
I should not recommend twice the annual loss in
this case.
I recommend that the claimant receives twice her
annual loss for the year April 1991 to April 1992
as compared with her earnings from the same
relevant elements mentioned in 3 above for the
previous year April 1990 to April 1991 in full and
final settlement of all her claims."
5. Under the terms of Section 13(9) of the Industrial
Relations Act 1969, the Rights Commissioner's
Recommendation was appealed to the Labour Court by both
parties. The Labour Court heard the appeals in Limerick
on 15th March, 1995.
UNION'S ARGUMENTS:
3. 1. The change in roster imposed on the worker in 1991
resulted in a quantifiable and continuing loss of
earnings for the worker. The Union does not accept that
the worker accepted the roster of October 1993 (details
supplied). The Union is asking the Court to confirm the
Rights Commissioner's Recommendation with regard to loss
of earnings and travel and to further recommend that her
roster be altered to a more suitable one operating in
another hospital under the aegis of the Board (details
supplied).
2. The Union rejects the Rights Commissioner's findings
that the worker "of her own volition agreed to changes
on two occasions in April 1992 and October 1993." There
was no change in April 1992. It is unreasonable to
conclude that she accepted the October 1993 change when
her opposition to the roster has been documented by the
Labour Relations Commission (details supplied).
3. The Union contends that the Rights Commissioner was
obliged to examine the alternative roster proposed by
the Union. If he had done this, he would have seen that
the alternative roster meets the worker's needs and is
more suitable for the Board in terms of giving the cover
required.
BOARD'S ARGUMENTS:
4. 1. The Board interprets the Rights Commissioner as
recommending compensation in respect of the period April
1991 to April 1993 for loss of premium earnings arising
from a change in roster and compensation for extra
journeys to work.
2. The worker was not inconvenienced when the roster was
changed in 1991 as her new roster involved a more
conventional commitment to working hours. The worker
was also offered a "compromise" roster (details
supplied) which was rejected. It is a condition of the
worker's employment that she can be assigned to any area
of the Health Board's operations.
3. The worker's claim cannot be justified having regard to
the terms and conditions of her appointment (details
supplied). The level of compensation awarded is
excessive as the bulk of the loss relates to a
comparatively short period of time between April 1991
and April 1993.
4. The Board is precluded at the direction of the Minister
for Health, from paying travelling expenses to an
officer between his/her home and official headquarters.
The Rights Commissioner's Recommendation could give rise
to repercussive claims.
DECISION:
The Court having considered all the circumstances of this case
finds no grounds for amending the Rights Commissioner's
Recommendation.
The Court upholds the Rights Commissioner's Recommendation and
rejects the appeal.
The Court so decides.
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Signed on behalf of the Labour Court
5th April, 1995 Finbarr Flood
J.F./M.M. _______________
Deputy Chairman