FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : UNIVERSITY COLLEGE HOSPITAL GALWAY - AND - A WORKER (REPRESENTED BY IRISH MEDICAL ORGANISATION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Appeal of a Rights Commissioner's Recommendation r-056506-ir-07
BACKGROUND:
2. The Claimant was employed as a Non-Consultant Hospital Doctor (NCHD) at Senior House Officer level in the Urology Department of Galway University Hospital from January to June 2006. It is claimed that locum cover was not provided on occasions when colleagues took leave and extra payment was not paid to the Claimant in their absence as compensation for the extra work, in accordance with the 1997 NCHD's Agreement.
The matter was referred to a Rights Commissioner for investigation and recommendation. On the 20th May, 2008, the Rights Commissioner issued his Recommendation as follows:
"The respondent has acted in accordance with the provisions of the agreement and consequently I find that the claim is not well founded and recommend accordingly."
On the 4th June, 2008 the Union appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act 1969. A Labour Court hearing took place on the 11th March, 2009.
UNION'S ARGUMENT'S
3. 1. The Claimant was employed on a 1:5 rota, when leave is taken it becomes a 1:4 or more onerous rota, which clearly breaches the terms of 1997 Agreement for NCHDs working extra hours.
2. This Agreement states that the Employer will provide locum cover when the rota falls below 1:5, this was not provided on at least 100 days. No additional remuneration was paid the Claimant on these occasions.
3. The Claimant has waived his claim for compensation during the Labour Court hearing.
EMPLOYER'S ARGUMENT'S
4. 1. The Claimant worked a 1:5 rota and this dropped to a 1:4 when one member of the group goes on leave, only one member can go on leave at any one time. Therefore the rota should never fall below the 1:4 level except in exceptional circumstances such as sick leave and in these circumstances locum cover would be provided.
2. The decision of two NCHDs to take their annual leave at the same time was avoidable and went against the advice of Medical Manpower Manager.
3. Management acted in accordance with the provisions of the 2000 NCHD Agreement , the Claimant was paid for all hours worked and an adequate staff level was provided for the sick leave cover.
DECISION:
The matter before the Court is an appeal by the Union on behalf of a Doctor of a Rights Commissioner’s Recommendation which found against his claim that the Hospital had breached the 1997 Agreement on the pay and conditions of employment of Non-Consultant Hospital Doctors(NCHDs). He claimed that by failing to provide a locum when the roster fell to 1:4 or less, the Hospital had breached Clause 5 of the agreement.
Clause 5 (a) states:
- “All parties to the 1986 Agreement were committed to the provision of locum cover for all N.C.H.D. leave, where practical. Furthermore, it was agreed that in the case of 1:4 or more onerous rotas, full locum cover for all leave periods would be assured.”
Management submitted that the terms and conditions of employment for NCHDs had changed considerably since the 1997 Agreement. In 2000 changes were agreed whereby NCHDs were no longer paid for a maximum of 65 hours per week regardless of the number of hours worked. As part of the 2000 Agreement they are now paid for a 39-hour week and paid at overtime rates for all hours worked in excess of 39.
Having carefully considered the submissions and additional material provided by both sides, the Court notes the HSE Employers Agency's position on the matter: -
- “Management recognise that there exists in certain circumstances more onerous “on call” requirements than would be the norm and that any absences in such situations must always be looked at in a careful and considered way and replacements provided where practicable.”
Despite management’s instruction to the contrary, two NCHDs went on annual leave in the week 12th to 18th June 2006 which was in contravention of the established arrangements for the taking of annual leave. However, management provided locum cover when the rota fell to a“…more onerous...”1:2 rota following the absence on sick leave of a third NCHD in the group.
In the circumstances, the Court is satisfied that Management’s actions were within the parameters of the 1997 Agreement. Accordingly, the Court rejects the appeal and upholds the Rights Commissioner’s Recommendation.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
6th April, 2009______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.