FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : MATER MISERICRODIAE UNIVERSITY HOSPITAL - AND - A WORKER (REPRESENTED BY IRISH MEDICAL ORGANISATION) DIVISION : Chairman: Mr Hayes Employer Member: Ms Doyle Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioner's Recommendation ir-121407/12/MR.
BACKGROUND:
2. This dispute concerns the Worker's claim that the Hospital did not paid her for all the overtime she worked. This dispute was referred to a Rights Commissioner for investigation and recommendation. On the 10th September, 2012 the Rights Commissioner issued the following Recommendation:-
- "I recommend that the [Hospital] should agree to pay a lump sum of €1,000 to [the Worker] in full and final settlement of this dispute."
On the 2nd October, 2012 the Worker 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 January, 2013.
UNION'S ARGUMENTS:
3. 1. The Worker had to work a considerable amount of overtime during her employment with the Hospital.
2. Other colleagues were paid in full if required to work overtime.
3.This Worker should be paid in full for all the overtime she was required to work.
HOSPITAL'S ARGUMENTS:
4. 1.The Hospital accepts that the Worker was not paid for all overtime worked.
2.The Worker was told at the start of her employment that she would not be paid for all overtime worked.
3.The Worker consented to this and did not raise a grievance during her employment.
DECISION:
The Court has carefully considered the submissions of both parties to this dispute.
The Court notes that the nationally agreed NCHD Contract of Employment makes no provision for any variation of it terms by way of local agreement. Accordingly the applicant is entitled to payment for all hours worked strictly in accordance with the provisions of the Contract.
The Court finds that the Attendance/Overtime sheets submitted by the Appellant and approved by the Supervising Consultant give no indication that their use was for the purpose only of meeting the Hospital’s obligations under the Organisation of Working Act 1997. Accordingly the Court finds that the time sheets comply with the conditions for overtime approval set out in section 12 (e) of the NCHD Contract. Moreover the Court finds that the level of unscheduled overtime worked by the Applicant was significantly greater than the expected levels outlined to her at the commencement of her rotation through the Oncology Department. Accordingly the Court finds that Management’s defence of its behaviour on this ground cannot be availed of even if it were compatible with the terms of the National NCHD Contract.
On the other hand the Appellant delayed in bringing her complaint to Management and to this Court. She first became aware of the alleged breach of her terms and conditions of employment in July 2010. While she raised the matter with the Human Resources Department early in 2011 it was 3 months after her employment ended in June 2011 that she first notified management of her grievances in this regard. The Court finds that this delay deprived management of the opportunity to address the matter in a timely fashion and thereby reduce its exposure to additional costs. The Applicant thereby contributed to her own loss by the manner in which she progressed her dispute.
In all the circumstances of the case the Court sets aside the Rights Commissioner’s Recommendation and decides that the Hospital should pay the Appellant compensation in the amount of €5,000 in full and final settlement of this dispute.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
25th January, 2013______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jonathan McCabe, Court Secretary.