FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Appeal of Recommendation of a Rights Commissioner R-080001-IR-09/JT
BACKGROUND:
2. The worker (one of two) was employed as Night Duty Household Staff in Wexford General Hospital. The Hospital introduced night duty in August, 2007, and the work consisted of general cleaning, including the X-Ray Department. The worker was employed for 7 days over a fortnight. Her case is that the workload was too heavy and she raised the issue with her Union and, despite some changes to the roster, in time an issue was raised on her behalf with the Health & Safety Authority (HSA). In October, 2008, both workers went out on stress-related sick leave. The HSE then arranged for a health & safety review which was carried out by the Health & Safety Advisor. Her report recommended that night duty should be rotated between 6-10 workers, and these new rosters were introduced in April, 2009. Neither of the two workers concerned took part in the new rosters and the worker concerned opted to work an evening shift. The worker believes that she was victimised for referring her case to the HSA.
The case was referred to a Rights Commissioner and his decision was as follows:-
" I have considered the submissions and arguments put forward by both parties. It was by agreement that this matter was heard under the Health, Welfare and Safety at Work Act, 2005. The claimant and her colleague are claiming penalisation in regard to their complaints in regard to the night duty work. The reason that the night duty roster was brought in to involve 6 to 10 people in day staff was on the advice of the Health and Safety Authority, on foot "anonymous complaint"received by them. Therefore, the respondents were not only following the advice of the Health and Safety Authority but also good practice. The respondents also offered the claimants the opportunity to participate in this roster, which would have alleviated the amount of night work for which they had originally complained. Should the respondents revert back to the original position they would clearly have a case to answer for in regard to the Health and Safety Authority. Therefore, it is unrealistic of them to expect them to do such a thing. Therefore, I do not find the complaint well founded, therefore, it fails".
The worker appealed the recommendation to the Labour Court on the 6th April, 2010, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 13th September, 2011, in Kilkenny.
UNION'S ARGUMENTS:
3. 1. A comprehensive risk assessment of the work carried out on night duty was not undertaken as instructed by the HSA after investigating an anonymous complaint.
2. Introducing a rotating shift roster never actually reduced the workload of the night duty staff; it just introduced a system where they worked less nights.
3. The proposed panel of 6-10 members participating in the rotating night shift never came to fruition as there is only a maximum of four staff currently participating.
HSE'S ARGUMENTS:
4. 1. The worker was given the option of going back on the revised night duty but refused it. She later requested to be deployed to evening shift and management was agreeable to this.
2. The HSE complied with the recommendation from the HSA and the Health & Safety Advisor as it must do.
3. There is no merit in suggesting that the worker was penalised for making a complaint to the HSA.
DECISION:
The matter before the Court concerns an appeal by the Union on behalf of a worker of a Rights Commissioner’s Recommendation which found against her claim that the HSE had penalised her when she made a complaint to the Health and Safety Authority concerning her working conditions at night. The claim was referred to the Rights Commissioner under both the Industrial Relations Act, 1969, and the Safety, Health and Welfare at Work Act, 2005. While it was decided to pursue the claim under the 2005 Act, the Rights Commissioner made a finding under the 1969 Act. The appeal before the Court is now made under the 1969 Act and this position was accepted by both the Claimant and her Union. Management had no objection to the Court proceeding to hear the appeal in this manner and, accordingly, the following is the Court’s investigation of the appeal under the Industrial Relations Act, 1969.
For the avoidance of any doubt, based on the information given to the Court, it is satisfied that there is no Rights Commissioner’s Decision under the Safety, Health and Welfare at Work Act, 2005, and no appeal before the Court under that Act in relation to the subject-matter of this case.
Management informed the Court that in August, 2007, Wexford General Hospital introduced a night duty roster for household staff on a trial basis with two members of staff. Both complained of the workload at the time and adjustments were made. In October both the Claimant and her night work colleague went out on stress-related sick leave. As a consequence the HSE decided to carry out a health and safety review of the night working arrangement and this was conducted by the HSE’s Health and Safety Advisor. The Advisor reviewed the work rota in place at night and a task roster was introduced on a trial basis for employees working in the area. The Advisor recommended the formation of a panel of between six and ten staff members to rotate the night work. Following a consultation period with the Union, a new roster was introduced on 6th April 2009. The new rostered arrangements for night work did not suit the Claimant for family reasons and she instead opted to work on an evening shift thereby losing premium payments. The Claimant worked extra hours in order to mitigate her loss.
The Claimant submitted to the Court that Management did not address her concerns about the workload at night and that there was no consultation with her when the health and safety assessment was carried out. Consequently, she submitted that her removal from night working was solely in retaliation for the complaint she had made to the Health and Safety Authority.
The Court has carefully considered the oral and written submissions of both parties and is satisfied that the reason for the changes made to the night shift rosters was directly related to the health and safety assessment carried out, however, the Court is not totally satisfied that the workload concerns expressed by the Claimant were adequately dealt with.
Management had a duty to ensure that the health, safety and welfare of their employees met the standards required. The investigation carried out by the Health and Safety Advisor was undertaken to ensure compliance with the 2005 Act. This resulted in the requirement to change the roster arrangement at night. These changes resulted in new work patterns which did not suit the Claimant and consequently required her to work alternative rosters with a loss of the night shift premia.
Having considered the oral and written submissions of both sides the Court is of the view that the assessment carried out was necessary in the light of the complaints made and the stress related absences which occurred following the introduction of the night working arrangement. Furthermore, the Court takes the view that there was an onus on Management to comply with the recommendations of that assessment. Unfortunately, the fallout from that resulted in the new arrangements not suiting the Claimant and Management facilitated her in mitigating any loss she may have incurred.
Therefore, the Court finds that the Claimant’s claim of penalisation is not well-founded. Accordingly, the Court upholds the Rights Commissioner’s findings.
The Court recommends that for the future any complaints concerning over-demanding levels of workload should incorporate representation on behalf of the complainant.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
26th September, 2011______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.