AD103

FULL RECOMMENDATION

CD/08/161

APPEAL DECISIONNO.AD103

(r-053973-ir-07/EH)

INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969

PARTIES :

HSE WEST

- AND -

A WORKER
(REPRESENTED BY IRISH NURSES ORGAINISATION)

DIVISION :

Chairman: Mr Duffy
Employer Member: Mr Doherty
Worker Member: Mr Nash

SUBJECT:
1. Appeal of Rights Commissioner's Recommendation r-053973-ir-07/EH.

BACKGROUND:

2. The Worker, who was originally employed as a Community Registered Nurse (CRGN) on a temporary contract in August 2000, was appointed permanently in June 2006 under the Protection of Employees (Fixed Term Workers) Act, 2003. This dispute concerns the Worker's claim that she is not obliged to provide an on-call service at weekends in addition to her contracted 30 hours per week. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 12th February, 2008 the Rights Commissioner issued the following Recommendation:-

- “I recommend that [the Worker] should continue to provide weekend cover as per her contract of employment.
  
  I also recommend that this issue becomes part of the discussions with the INO and HSE-EA referred to above which both parties have committed themselves to.”
On the 12th March, 2008, the Employer 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 16th February, 2010, the earliest date suitable to the parties.

UNION'S ARGUMENTS:

3. 1. This dispute is due to the Employer's failure to implement Labour Court Recommendation LCR18972, which stated that CRGNs were not required, other than in emergency situations, to provide weekend cover.

2. The Employer has ignored medical advice that the Worker should not work weekends.

3.The Employer's failure to engage with the Union in respect of the issues arising from LCR18972 has caused the Worker unnecessary stress.

EMPLOYER'S ARGUMENTS:

4. 1. The Worker, who was specifically recruited to work at weekends, is rostered to work one weekend in four to provide pre-planned essential nursing services - this is not an on-call arrangement.

2. When the Worker was made permanent -per the terms of the Protection of Employees (Fixed Term Workers) Act, 2003- it was on the same terms and conditions of employment which existed prior to her being made permanent.

3. The Worker is, therefore, contractually obliged to work the weekends she is rostered.

DECISION:

The basic contention of the union in advancing its appeal in this case is that the recommendation of the Rights Commissioner runs counter to the Recommendation LCR18972. In that Recommendation the Court concluded that Community Registered General Nurses were not required, other than in emergency situations, to provide weekend cover.

It is clear, however, that Recommendation LCR18972 has not been implemented and CRGNs continue to be rostered for weekend duties. In these circumstances it could not reasonably be held that the Claimant in this case should be treated differently to all other CRGNs.

In the Court’s view the parties should have further discussions with a view to establishing a basis upon which LCR18972 can be implemented in respect to all nurses to which it applies. In the interim the Claimant should continue to provide the same level of weekend cover as all of her colleagues.

The recommendation of the Rights Commissioner is amended accordingly.

Signed on behalf of the Labour Court

Kevin Duffy
1st March, 2010______________________
JMcCChairman

NOTE

Enquiries concerning this Decision should be addressed to Jonathan McCabe, Court Secretary.