Labour Court Database __________________________________________________________________________________ File Number: CD95572 Case Number: AD9594 Section / Act: S13(9) Parties: ST. JAMES HOSPITAL - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal of Rights Commissioner's Recommendation No. ST 244/95 concerning red-circling.
Recommendation:
"I believe that the Hospital has taken an extreme view of
its perogatives in relation to the Claimant's inability
to service the post she applied for and was subsequently
appointed to by Management. I do not believe that one
can just ignore the Claimant's long service to the
Hospital, her unblemished record and her family
circumstances when considering the matter fairly. I
recommend rejection of the Union's claim for red circling
as I believe that this method of redress creates more
problems than it solves in the long term. However I
think there is some merit in the Union's case and
accordingly I recommend that the Claimant is compensated
for her losses by applying the formula of 1.25 of her
annual losses which formula is applied in all health
board areas except the Southern where the rate is 26
weeks the loss."
The Rights Commissioner's Recommendation was appealed by the
Hospital to the Labour Court on 30th October, 1995 under
Section 13(9) of the Industrial Relations Act, 1969. The
Labour Court heard the appeal on 24th November, 1995.
UNION'S ARGUMENTS:
1. Any reduction in pay would cause the worker considerable
hardship.
2. The worker has given over 20 years loyal service to the
Hospital and should not suffer any reduction in pay due to
the enforced nature of the transfer.
3. The Hospital's medical personnel recommended that the worker
should not return to the H.S.S.U. because of the chemicals
used in that Department.
HOSPITAL'S ARGUMENTS:
1. It is inequitable and inappropriate to pay the worker any
rate other than the rate applicable to that of ward catering
assistant.
2. The Hospital has facilitated the worker on a number of
occasions in the past. On this occasion the Hospital was
under no obligation to seek or indeed provide alternative
employment and could have pursued two other options which
would have resulted in the cessation of her employment.
3. The worker rejected other work opportunities which would have
had higher earning potential than the ward catering assistant
position.
4. In other circumstances/incidents where employees have been
re-deployed for medical or other reasons they have been paid
the rate for the job i.e. that appropriate to the post to
which they have been assigned. Concession on this occasion
would set an inappropriate and unacceptable precedent.
5. At no time did the Hospital make any commitment to the
worker, implied or otherwise, that she would receive a
protection of earnings. The worker's actual gross pay as a
ward catering assistant is greater than her pay as an
H.S.S.U. operative where there was limited opportunity for
premium earnings.
DECISION:
The Court having considered the submissions of both parties does
not recommend any change in the Rights Commissioner's
Recommendation.
The Court therefore upholds the Rights Commissioner's
Recommendation and rejects the appeal.
The Court so decides.
Division: Mr Flood Mr Keogh Mr Rorke
Text of Document__________________________________________________________________
CD95572 APPEAL DECISION NO. AD9495
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES:
ST. JAMES HOSPITAL
AND
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
Appeal of Rights Commissioner's Recommendation No. ST 244/95
concerning red-circling.
BACKGROUND:
The worker concerned commenced employment with the Hospital
as a ward attendant on 19th May, 1975. She was assigned as
an attendant in the Physiotherapy Department in November,
1977.
In 1991, the worker sought and was granted a transfer on
health grounds to the new H.S.S.U. (Hospital Sterile Services
Unit). Following a period of sick leave in March, 1995 the
Hospital received medical opinion recommending that the
worker should cease working in the H.S.S.U.. The Hospital
identified three options in respect of the worker's position:
(1) Retirement on grounds of permanent incapacity.
(2) Termination of employment on grounds of capability.
(3) Alternative employment.
It was agreed subject to medical clearance that the worker be
transferred to the position of ward catering assistant. The
Union proposed that the worker's rate of pay be red-circled.
The Hospital rejected the Union's proposal.
The matter was referred to a Rights Commissioner for
investigation and recommendation. On 28th September, 1995
the Rights Commissioner recommended as follows:-
Recommendation
"I believe that the Hospital has taken an extreme view of
its perogatives in relation to the Claimant's inability
to service the post she applied for and was subsequently
appointed to by Management. I do not believe that one
can just ignore the Claimant's long service to the
Hospital, her unblemished record and her family
circumstances when considering the matter fairly. I
recommend rejection of the Union's claim for red circling
as I believe that this method of redress creates more
problems than it solves in the long term. However I
think there is some merit in the Union's case and
accordingly I recommend that the Claimant is compensated
for her losses by applying the formula of 1.25 of her
annual losses which formula is applied in all health
board areas except the Southern where the rate is 26
weeks the loss."
The Rights Commissioner's Recommendation was appealed by the
Hospital to the Labour Court on 30th October, 1995 under
Section 13(9) of the Industrial Relations Act, 1969. The
Labour Court heard the appeal on 24th November, 1995.
UNION'S ARGUMENTS:
1. Any reduction in pay would cause the worker considerable
hardship.
2. The worker has given over 20 years loyal service to the
Hospital and should not suffer any reduction in pay due to
the enforced nature of the transfer.
3. The Hospital's medical personnel recommended that the worker
should not return to the H.S.S.U. because of the chemicals
used in that Department.
HOSPITAL'S ARGUMENTS:
1. It is inequitable and inappropriate to pay the worker any
rate other than the rate applicable to that of ward catering
assistant.
2. The Hospital has facilitated the worker on a number of
occasions in the past. On this occasion the Hospital was
under no obligation to seek or indeed provide alternative
employment and could have pursued two other options which
would have resulted in the cessation of her employment.
3. The worker rejected other work opportunities which would have
had higher earning potential than the ward catering assistant
position.
4. In other circumstances/incidents where employees have been
re-deployed for medical or other reasons they have been paid
the rate for the job i.e. that appropriate to the post to
which they have been assigned. Concession on this occasion
would set an inappropriate and unacceptable precedent.
5. At no time did the Hospital make any commitment to the
worker, implied or otherwise, that she would receive a
protection of earnings. The worker's actual gross pay as a
ward catering assistant is greater than her pay as an
H.S.S.U. operative where there was limited opportunity for
premium earnings.
DECISION:
The Court having considered the submissions of both parties does
not recommend any change in the Rights Commissioner's
Recommendation.
The Court therefore upholds the Rights Commissioner's
Recommendation and rejects the appeal.
The Court so decides.
~
Signed on behalf of the Labour Court
21st December, 1995 Finbarr Flood
F.B./A.K. ---------------
Deputy Chairman