FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : ST LUKE'S HOSPITAL (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY MLSA) DIVISION : Chairman: Mr McGee Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal of Recommendation of a Rights Commissioner R-074277-Ir-09.
BACKGROUND:
2. The worker was a Medical Scientist in the Cytology Laboratory in St. Luke's Hospital, Rathgar, since 2003. The Cytology Laboratory was part of the Irish Cervical Screening Programme (ICSP) for over 40 years. In 2007 it became part of the National Cancer Screening Service (NCSS) and the work of the ICSP was outsourced to a US based private company. As a result the Cytology Laboratory was forced to close. The parties met to discuss the implications for the staff involved. The Hospital claims that the following was agreed:
Be redeployed on a red circle basis to any other Hospital or
Be redeployed on a red circle basis internally to any other department, with full training assistance
The Union's case is that it was agreed that a small number of employees would not be suitable for re-training because of their qualifications, competencies and advanced age. The solution agreed was early retirement with added years. This was to include the worker concerned but, when it was discovered that she was over the minimum age for retirement there was no mechanism available to grant the added years. A monetary settlement was suggested as an alternative but was rejected by the worker. The case was referred to a Rights Commissioner and his findings and recommendations were as follows:
"I have carefully considered the evidence and the submissions made and I have concluded as follows.
Following the decision to outsource the work of the Cytology Laboratory, MLSA and the Employer negotiated an Agreement covering all those effected, including the claimant. Both parties knew the position of the claimant at the time that Agreement was reached between the parties. The employer has offered to apply the terms of that Agreement and the options contained within it to the claimant - and in so doing have fully discharged their obligations to the claimant. The complaints and claims of the claimant are not well founded and they are rejected.
While I fully understand that it is regrettable and unsatisfactory to the claimant that she should, after a long career at her chosen profession find herself in her current position, nevertheless she finds herself in the same position as her colleagues, with the same options and the same choices as them. The claimant would be well advised to re-consider her position in relation to alternative work in order to maximise her pensionable income on retirement.
The Union appealed the recommendation to the Labour Court on the 29th July, 2009, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 16th September, 2009.
UNION'S ARGUMENTS:
3. 1. The worker is only looking for three additional years' service, not five or eight as the Hospital suggests. She was not offered equality of options as per the national understanding.
2. The worker has always worked in Cytology. She does not want to change careers at this stage, particularly with only three years left. By the time she was properly trained in another department she would be ready to retire.
COMPANY'S ARGUMENTS:
4. 1.The dispute arose because the worker refused to accept either of the redeployment options, which had been agreed with the Union, on offer. The Hospital is willing to redeploy the worker to another position of her choosing on her existing terms and conditions of employment on a red-circled basis.
2. The worker is seeking that the Hospital makes a substantial contribution (up to 8 years not actually worked) to enhance her service that she would notionally have accrued had she retired at 65 years with added years. This request is not only cost-prohibitive but also unrealistic.
DECISION:
The Court recommends the parties should urgently re-engage with a view to exploring redeployment options for the claimant which would respect both her long years within her specialist scientific discipline and her wishes to work in an area involving technical/testing work rather than dealing on a regular, face-to-face basis with patients.
Should she prove eligible for the I.C.E.R. plan, that should apply to her if she so wishes.
Signed on behalf of the Labour Court
Raymond McGee
30th September, 2009.______________________
CON.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.