FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : NORTH EASTERN HEALTH BOARD - AND - IRISH MEDICAL ORGANISATION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Claim for payment for working rest days and annual leave
BACKGROUND:
2. The case concerns a Consultant Obstetrician and Gynaecologist employed by the North Eastern Health Board in Cavan General Hospital since 1972. From 1972 to 1981 the Consultant was employed on an "Original Contract", 1981 to 1991 under a "Common Contract". The 1991 Contract was replaced by the revised "Buckely Contract" of 1998. The Consultant concerned declined to sign the revised contract for Consultant Medical Staff (1998) because of his concerns in regard to the provision on 'historic' rest days.
The Consultant's claim is in three parts:
- Claim for accumulated rest days
- Claim for cross cover arrangements at Cavan and Monaghan Hospitals
- Claim for provision of Neonatel Paediatric Work.
As agreement was not reached the dispute was referred to the Labour Court on the 9th July, 2003 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 29th August, 2003.
UNION'S ARGUMENTS:
3.1 The Consultant is owed considerable recompense arising from the failure of the Board to fully discharge its contractual obligations to him. He is entitled to receive appropriate remuneration arising from:
- the contractual provisions relating to payment for Consultants who regularly work in excess of their scheduled commitment
- arising from the provision regarding rest days
- from the contractual provisions relating to annual leave and days in lieu of working, and
- from the provision regarding locum cover and cross-cover working.
2. Section 4.13 of the Memorandum of Agreement of the Revised Common Contract (1991) states:
- "it is recognised that additional responsibilities may arise from some consultants in relation to the management of a hospital, a service within or outside the hospitals or department or unit in a hospital. In such situations, the employing authority, in agreement with the consultant concerned, will arrange either or reduce the time related commitment to clinical work in the case of a particular appointment, or alternatively, to compensate the consultant undertaking the additional work by paying him an additional allowance".
3. The Board has acknowledged that the Consultant concerned could not take the rest days due to him. The offer made at conciliation did not recognise the Consultant's entitlement to rest days prior to 1981. The Consultant is due to retire at age 65 in May 2004 and could not take the offer by way of leave. The offer was subject to the Consultant accepting the terms of the 1998 contract.
BOARD'S ARGUMENTS:
4.1 The Consultant's claim is not valid. He frustrated the employer's efforts and his colleagues' efforts to accommodate the taking of rest days and annual leave days. He accepts no culpability for the circumstances which lead to his accruing the volume of time claimed to be owed by him.
2. The "Buckley" contract offered significantly enhanced remunerations in addition to a provision to deal with historic rest days. The Consultant refused to sign the contract. The Union supported the implementation of "Buckley" contract for the Consultant Medical Grade.
3. The Consultant did not hold a dual appointment, was not employed nor did he specialise in paediatric neonatology. It is not considered that he is owed additional remuneration for the work he undertook in this regard.
4. The Consultant in his claim would have the Board accept responsibility for him having no personal time, having no rest day due to failure to appoint locums, lack of cooperation in taking rest days, failure to pay for additional work undertaken and for him being on call literally all of the time.
5. The Board is of the view that the Consultant has been uncooperative in managing his rest days and annual leave entitlements from an early date.
RECOMMENDATION:
This is a claim on behalf of the Union for payment for professional services rendered by a Consultant Obstetrician/Gynaecologist in accordance with the terms of his 1991 common contract for consultants.
The Court is conscious that the expiry date for consultants to avail of the 1998 common contract was 3rd July, 1998 and that the claimant opted not to sign.
Having given serious consideration to the claim which extends back to 1972, the Court is of the view that the most appropriate mechanism for dealing with claims of significant accumulated rest days is that agreed in the Buckley negotiations in 1997. Therefore, the Court recommends that in the circumstances of this case the North Eastern Health Board should allow the claimant an opportunity to avail of the formula agreed in 1997. The terms of this formula are as outlined in paragraph 24 of the 1998 common contract, commonly referred to as the "Buckley Contract".
The Court recommends that this offer should be made by the Board without delay.
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
17th September,2003______________________
JB/Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Jackie Byrne, Court Secretary.