FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : SOUTHERN HEALTH BOARD - AND - A WORKER (REPRESENTED BY PSYCHIATRIC NURSES' ASSOCIATION OF IRELAND) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Pierce Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Recommendation No. IR3839/01/TB.
BACKGROUND:
2. The Union's claim is that it has been traditional in the Cork Mental Health Services for nursing officers to access continuous night duty over their last 3 years before retirement, thereby maximising their earnings prior to retirement and their pension and gratuity subsequently. In 1991, a sister union sought a change to the system. The PNA was opposed to this and believed that it had an understanding in this regard.
In 2000, the worker in question sought 3 years' continuous night duty (she is due to retire in February, 2003). She was the first to do so for a number of years. The Board refused the request. The dispute was referred to a Rights Commissioner and his recommendation was as follows:-
"The genesis of this dispute is in the various reorganisation and changes which has occurred in the Health Board area over many years. The current practice seems to have been in place for a number of years and I do not recommend that it should be changed. Similarly I do not recommend in favour of compensation."
Since the Rights Commissioner's hearing, the substantive issue has been resolved and the worker will be able to do continuous night duty from March, 2002. The only issue is that the Union is seeking retrospective payment for the worker for 2 years which, including loss to pension and gratuity, the Union estimates at €25,395.
The Union appealed the decision to the Labour Court on the 17th of December, 2001, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 13th of February, 2001, in Cork.
UNION'S ARGUMENTS:
3. 1. The Union did not agree to the abolition of the 3 years' night duty. The Board cannot reach agreement with one union and impose that agreement on another.
2. The worker is a sole claimant. She has lost out by comparison with those who have gone before. The Union believes that the "current practice" that the Rights Commissioner refers to is the fact that PNA members retained the 3 year option.
3. Workers have benefited in the past and will do so in the future from the 3 year option. Only the worker concerned will lose out.
BOARD'S ARGUMENTS:
4. 1. There has been no facility in place for the last 10 years to allow workers to do 3 years' continuous night duty prior to retirement.
2. The system operating has been on a yearly basis where workers submit their names and are placed on a night rota for periods of 12 weeks. The number of 12 week rotations depends on the number of applicants.
3. Management is satisfied that the system has met the needs of the service very well.
DECISION:
The Court has given careful consideration to the written and oral submissions of the parties. On balance, the Court is of the view that the Rights Commissioner's recommendation is a correct one. The Court does not see any reason to overturn the recommendation.
Therefore, the Union's appeal is dismissed and the Rights Commissioner's recommendation is upheld.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
4th March, 2002______________________
CON/CCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.