FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : BON SECOURS HOSPITAL (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr Nash |
1. Appeal of a Recommendation of a Rights Commissioner R-075466-IR-09/RG.
BACKGROUND:
2. The Worker concerned commenced employment at the Bon Secours Hospital as a casual and on-call basic grade Medical Laboratory Technician in February 1992. In May 1992 she took up a permanent part-time Medical Laboratory Technician post in the Blood Transfusion Laboratory . On 1st October 1999 the Worker was regraded to a Senior Medical Laboratory technician post. This post was subsequently re-titled as Senior Medical Scientist.
In June 2005 the Worker competed successfully for the position of Haemovigilance Officer. Some discussion ensued between the Worker and her Manager concerning the hours of work, existing on-call duties and the probationary period applying. Following a further series of e-mails and discussions with her Manager the Worker e-mailed her Manager on the 12th August 2005 saying that she was going to accept the post of Haemovigilance Officer. She sent an e-mail to the Manager reflecting her understanding of what had been reached in the discussions:-
"Mindful of your difficulties, I am happy to accept the Haemovigilance Officer role without a probationary period on the understanding that I am a Senior Medical Scientist and for the purpose of future vacancies and promotional prospects I will not be treated less favourably by virtue of my new role, that my remuneration will be linked on a personal level to my former role and that should a vacancy arise in Blood Transfusion at a future date that I would be given first option on it. I hope these are ok with you."
The Worker subsequently signed the contract for the part-time Haemovigilance post which explicitly linked her salary to the Senior Medical Scientist grade and which included, at her request, and as supported by her Manager, remaining on the on-call rota. There were no other conditions outlined in the contract.
On the 1st December 2006 the post which the Worker had previously held was regraded to Chief Medical Scientist. The Worker assumed that she would also be regraded to Chief Medical Scientist, in line with her colleagues and in line with what she believed had been agreed with her Manager. Further discussions took place between the Worker and her Manager but the issues could not be resolved. The Worker then initiated the Hospital Grievance Policy and Procedure in the matter.
The Worker fully utilised the Hospital's Grievance Procedure and under stage 4 of that procedure the matter was referred to a Rights Commissioner, with the consent of the Hospital. The Rights Commissioner issued her Recommendation on the 8th December, 2009 as follows:-
"........I therefore recommend that the Worker's salary be upgraded to that of Chief Medical Scientist from a current date. The post remains a substantive HO graded post. This is a personal salary regrading and is red-circled and cannot be used in any other claim for upgrading of HO's either in the Bon Secours Hospital or elsewhere in the Public or Private Sector."
The Worker was named in the Rights Commissioner's recommendation.
Both parties appealed the Recommendation of the Rights Commissioner on the 21st and 22nd December 2009 respectively, to the Labour Court, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 4th May, 2010.
WORKER'S ARGUMENTS:
3. 1. The Worker maintains that the Employer has not honoured the terms of the contract under which the Worker accepted the position of Haemovigilance Officer nor has the Employer honoured the undertakings made to the Worker prior to her accepting that position.
2. The Worker contends that she would not have accepted the Haemovigilance Officer post without probation and would not have relinquished the Senior Medical Scientist post were it not for the assurances she had sought and understood she had received and the additional assurances she had been offered by the Laboratory Manager.
3. The Worker maintains that she has been treated less favourably by virtue of her acceptance of the Haemovigilance Officer post in that if she had not accepted the post, she would, based on her seniority, have been promoted in due course to Chief Medical Scientist as and from 1st December 2006.
MANAGEMENT'S ARGUMENTS:
4. 1. Management contends that there is no agreement with the Worker to be graded as a Chief Medical Scientist. When offering the Worker the role of Haemovigilance Officer (HO) the Hospital agreed to red-circle her salary as Senior Medical Scientist given that the HO role was actually graded on a lower scale.
2. Management maintains that the only valid agreement between the Worker and the Hospital is her contract of employment. Other than on-call rota, retirement and pension issues, there is no mention anywhere of an agreement that her salary would be linked to any upgrading of her Senior Medical Scientist role, despite the contract clearly stating 'Please list any other terms and conditions as appropriate'.
3. Management maintains that the Worker freely opted for the role of Haemovigilance Officer and furthermore relinquished her right to revert to her former role.
DECISION:
The Employee submitted a claim to the Right’s Commissioner concerning a claim for upgrading to Chief Medical Scientist from 1st December 2006.
The Right’s Commissioner found in her favour for an upgrade and recommended that it should take place from a current date, not from 1st December 2006 as claimed.
Both the Claimant and the Employer appealed the Recommendation of the Right’s Commissioner Recommendation.
The Claimant submitted that when she applied for a position as Haemovigilance Officer in 2005 it was agreed at the time that if her previous role was upgraded from Senior Medical Scientist grade to Chief Medical Scientist grade, that she would be upgraded accordingly.
The Employer denied that such an agreement existed and stated that an upgrading of Senior Medical Scientist posts had taken place in December 2006 to Chief Medical Scientist grade, but stated that this had no impact on her role as Haemovigilance Officer.
In support of her position the Claimant produced into evidence an email dated 12th August 2005, which she had sent to her manager at the time. This email included the following statement:
- “…. I am happy to accept the Haemovigilance Officer role without a probationary period, on the understanding that I am a Senior Medical Scientist and for the purpose of future vacancies and promotional prospects I will not be treated less favourably by virtue of my new role, that my remuneration will be linked on a personal level to my former role and that should a vacancy arise in Blood Transfusion at a future date that I would be given first option on it. I hope these are ok with you.”….
Having carefully considered the extensive submissions of both sides and the oral submissions made at the hearing, the Court notes that the only evidence submitted to substantiate the Claimant’s position is her email dated 12th August 2005. The Court considers it of significance that the contract of employment encompasses a number of the issues which were the subject of the meetings referred to above, but makes no reference to the outcome of a pending regrading claim to Chief Medical Scientist grade.
A claim for regrading had been lodged nationally in 2001 and following an Expert Group examination of the role it recommended that six hospital departments should have a Chief Medical Scientists in overall chargeviz.Biochemistry, Haematology, Blood Transfusion, Microbiology, Histopathology and Immunology. The Report recommended that individual Senior Medical Scientists currently in charge of departments should be upgraded without recourse to a confined competition.
Haemovigilance, not being a department or defined Pathology discipline, was not covered by the Expert Group Report recommendation.
In November 2006, following protracted negotiations at local level, the Bon Secours Hospital agreed to regrade some specific Senior Medical Scientists to Chief Medical Scientist’s positions in the following departments– Clinical Chemistry, Histopathology, Haematology and Blood Transfusion. This process involved extensive discussions with the serving Senior Medical Scientists to agree revised job descriptions, prepare business plans and other changes to their terms and conditions of employment.
The Court is satisfied that the regrading clearly related to the posts and not the postholders, consequently there was no automatic regrading of all those on the Senior Medical Scientist grade.
In all the circumstances,
•in the absence of any definitive information to substantiate the Claimant’s position that the regrading of her position to Chief Medical Scientist was envisaged as part of her agreed terms as Haemovigilance Officer in August 2005, and
•when account is taken of the outcome of the Expert Group’s recommendation which resulted in extensive negotiations on the issue of regrading 4 serving Senior Medical Scientists and the fact that the Claimant was not encompassed in those negotiations
the Court takes the view that there was no agreement to upgrade her to a Chief Medical Scientist grade while she was still employed as a Haemovigilance Officer and there was no justifiable reason to so upgrade her, therefore it does not find in favour of the Claimant’s appeal.
However, the Court accepts that there was some confusion surrounding the matter which was not capable of resolution to the satisfaction of the Court. Accordingly, as a once off measure and as a gesture of goodwill to allow a return to normal working relations the Court recommends that the Employer should pay the Claimant the sum of €5,000 in full and final settlement of her claim.
Therefore the Court for the most part upholds the Employer’s appeal and overturns the Rights Commissioner’s Recommendation.
The Claimant’s appeal fails.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
27th May, 2010______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Madelon Geoghegan, Court Secretary.