FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : ST VINCENT'S UNIVERSITY HOSPITAL (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY IRISH NURSES ORGANISATION) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr O'Neill |
1. Appeal of Recommendation of a Rights Commissioner R-067742-IR-08/RG.
BACKGROUND:
2. The Worker concerned commenced employment in St. Vincent's University Hospital as a Staff Nurse on the 1st December 1997. Two years later, following a back injury at work, she was transferred to the Eye Unit on the basis of an Occupational Health Department recommendation. She then returned to the original ward some 10 weeks later.
Upon her return to work from another period of sick leave she was again facilitated with a placement on the Eye Unit. She was also facilitated with working long days for a limited duration in May 2001. Following a period of maternity leave the Worker returned to the Eye Unit and was then granted parental leave for a period up to April 2006. Her roster pattern was on the same 39 hours and long days as previously worked. The Worker's working week was subsequently altered to 35.25 hours worked on three long days.
Four months prior to the end of her parental leave the Worker asked her Manager if the roster she currently worked could continue to remain in place. She was informed that this would not be possible.
Throughout 2006 a series of meetings took place and at least seven different rosters were offered to the Worker. All of these were rejected by the Worker as not suiting her needs. The Worker did submit one proposal of her own which was rejected as not suiting the service needs of the Unit.
Following an amount of correspondence a 'Change of Hours Request Form' was signed by all involved and it appeared that the Worker had finally accepted one of the roster proposals. This was subsequently rejected by the Worker.
Further correspondence ensued between the Employer and the Worker and her Union representative and as the Worker continued to state that she would not be working the roster she was asked to reconsider her position. She refused to do so and refused to follow an instruction to return to her original roster. The Employer then placed the Worker on suspension without pay from March 2008. This was lifted in October 2008 when the Worker commenced a period of Maternity leave.
The issue was referred to a Rights Commissioner for investigation and recommendation. Her recommendation issued on the 28th January, 2009 as follows:-
"1. Management have tabled a number of proposals to the Claimant to provide for a reduced working week that combines the needs of the Claimant and the service provided by the Employer. The Claimant should clearly indicate which of these proposals she is prepared to operate. This should be done within one month from the date of this recommendation.
2. In the absence of this the Claimant should resume her normal working week worked by her prior to her taking Parental Leave in 2003 subject to any agreed changes made following the agreement to reduce the working week of Nurses with the SVUH.
3. The Claimant should be restored to full pay and the Employer should pay the claimant all monies due to her from March 2008.
4. The Claimant has clearly contributed to her current situation and therefore I do notrecommend any compensation be paid to the Claimant".
Both parties appealed the recommendation to Labour Court on the 5th and 9th March 2009, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 1st May, 2009.
UNION'S ARGUMENTS:
3. 1.The Union maintains that both parties signed up to an agreement in April 2006 and that agreement cannot be changed unless all parties agree.
2.When a consequent dispute arose, both parties understood how same would be resolved under her Contract of Employment, and the agreed policies/ procedures having regard to the Worker's rights. The Union contends that Management behaved unreasonably and unfairly in suspending her without pay.
3.The Union maintains that the Rights Commissioner erred in finding that the Worker contributed to her situation. The Worker was entitled to have her agreement observed.
MANAGEMENT'S ARGUMENTS:
4. 1. In April 2006 a change of hours request form was signed by all involved. It appeared that the Worker had accepted one of the roster proposals but this was subsequently rejected by her. Management contends that the proposal form does not constitute a legal agreement.
2. Management invested enormous resources and time in both drawing up rosters, writing letters and meeting with the Worker in order to come to an arrangement which suited the needs of the Hospital and of the Worker. Each and every roster proposed by the Hospital was rejected by the Worker as not suitable to her personal needs.
3. Management maintains that the Worker was unwilling to accept any compromise other than on her own terms. When the Worker failed to perform her duties as required by the Hospital and follow a reasonable instruction, even under protest, Management were left with no option but to suspend her due to her failure to fulfil her contractual obligations.
DECISION:
Having considered the oral and written submissions from both parties, the Court is of the view that management made strenuous efforts to facilitate the claimant’s request for a permanent change of hours.
The claimant was facilitated with reduced hours and a roster which suited her personal needs for three years from April 2003 until April 2006 under the Hospital’s special Parental Leave arrangements. Four months prior to its expiry she applied for a continuation of the arrangement on a permanent basis and completed a “Change of Hours Request Form”.
The Court is of the view that completion of this form, which was signed by nursing management, does not in itself constitute an agreement as contended by the Union.
Prior to the date of expiry of the Parental Leave arrangement on 9th April 2006 and in response to her request to change her contracted hours, management submitted a number of offers to the claimant in order to try and address her personal circumstances while at the same time meet the needs of the Hospital. The claimant rejected all offers made. Subsequent to 9th April 2006 management continued in its efforts to accommodate the claimant’s needs and in total, seven alternative roster arrangements were offered, including the opportunity to transfer to another ward or area in order to apply for a reduced working week. Each offer was rejected as they did not suit the claimant’s personal needs.
The Court is of the view that while offers were being made and considered there can be no question of an agreement being in place. Therefore, management were within their rights to make every effort to bring the matter to a conclusion, however, the Court does not accept that the actions of management on 3rd March 2008 in unilaterally suspending the claimant without pay, were appropriate or in line with its own disciplinary procedures.
In all the circumstances, the Court concurs with the Rights Commissioner’s finding that the claimant clearly contributed to the situation and therefore, concurs with her finding that no compensation is warranted in the circumstances. However, due to the Court’s findings on the inappropriateness of management’s actions, it finds that payment should be made in respect of the period of unpaid suspension and accordingly makes a recommendation in that regard.
Taking all aspects of both appeals into account, the Court upholds the Rights Commissioner’s conclusions and recommends as follows:
•Within one month of the date of this Decision the claimant should clearly indicate which of the proposals offered by management she is willing to accept.
•In the absence of the above, the claimant should resume her normal contracted working week (now reduced to 37.25 in accordance with national measures taken on nursing hours of work), from her resumption date following her maternity leave.
•The sum of €14,955 should be paid to the claimant in full and final settlement of her claim.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
13th May, 2009______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Madelon Geoghegan, Court Secretary.