FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEALTH SERVICE EXECUTIVE - AND - A WORKER (REPRESENTED BY IRISH NURSES AND MIDWIVES ORGANISATION) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Ni Mhurchu |
1. Compensation
BACKGROUND:
2. The Worker concerned commenced employment with St. Columcille's Hospital, Loughlinstown on the 12th November 1979. In the interim 20 years she provided a Theatre-On-call service with approximately 15 Nurse colleagues on a rotational basis.
On the 14th December 2009 the On-call service was withdrawn. Management refused to compensate staff for their actual and future loss of earnings. The matter was referred to the Labour Relations Commissions and an Agreement was reached to compensate the Claimants at 1.5 times their annual loss with regard to an agreed reference period.
The Worker concerned was elected President of the INMO in 2004 and was therefore seconded from her place of work until the secondment ended on the 30th June 2009. Following her return to the hospital she went on annual leave, took up her rostered duty on 3rd August 2009 and subsequently was absent on sick leave from 28th September 2009 to the 29th December 2009.
The Worker was not on call during the period 3rd August 2009 to 27th September 2009 inclusive and was not in receipt of any of the premia associated with the on-call arrangements and therefore she was not comprehended by the terms of the settlement to which she felt she was entitled.
The matter could not be resolved at local level. The Union referred a claim for compensation on behalf of its member to the Labour Court on the 27th May 2011, in accordance with Section 20(1) of the Industrial Relations Act, 1969 and agreed to be bound by the Court's recommendation. A Labour Court hearing took place on the 7th October 2011.
UNION'S ARGUMENTS:
3. 1. The Union maintains that the Claimant suffered a serious loss of earnings due to the HSE reconfiguring the On-call service and that this impacted on her in exactly the same way as her colleagues who were compensated.
2. The Union maintains that it is unfair and unreasonable that the Claimant be penalised as a result of the reference period disadvantaging her.
3. The Union contends that the HSE is behaving unreasonably with it's stance. It has already generated significant savings as a result of the closure of the On-call service at St. Columcille's Hospital.
4. The Union also contends that this is a minor claim with no potential for knock-on claims as all the other Nurses have accepted the offer made.
MANAGEMENT'S ARGUMENTS:
4. 1. Management maintains that the Claimant was on secondment for the majority of the agreed reference period. Following her return to work at the Hospital on 3rd August 2009 and up to the 27th September 2009 she was not on call.
2. During the comparator year prior to the termination of out of hour emergency surgery on the 14th December 2009 the Claimant was not on call and therefore did not incur any loss of earnings.
3. Management contends that to pay compensation to anyone who was not directly involved in providing the service would be unfair and unjust.
4. Management reject the claim on the grounds that there was no actual loss of earnings, and on the basis that the claim is cost-increasing.
RECOMMENDATION:
The matter before the Court under Section 20(1) of the Industrial Relations Act, 1969 concerns a claim on behalf of one employee for compensation for loss of earnings due to the closure of on-call services in the theatre department of St. Columcille’s Hospital, Loughlinstown, Co. Dublin.
The Court has carefully considered the submission of both parties and notes the agreement reached on the matter of compensation for the loss of earnings. This agreement provided for compensation to be paid at one and a half times the annual loss once the actual loss was calculated using an agreed reference period. The Court notes that both sides accept that the agreement has been fully implemented.
The Court notes that the Claimant suffered no loss of on call earnings during the agreed reference period and accordingly no compensation is warranted in accordance with the terms of the agreement. In all the circumstances the Court can see no justification for recommending a compensation payment in this case.
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
11th October, 2011______________________
MGDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Madelon Geoghegan, Court Secretary.