FULL RECOMMENDATION
) SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : HSE SOUTH & KERRY GENERAL HOSPITAL (REPRESENTED BY SIOBHAN LANKFORD, B.L., INSTRUCTED BY COMYN KELLEHER TOBIN, SOLICITORS) - AND - PETER LUKCO (REPRESENTED BY EILIS BARRY, B.L., INSTRUCTED BY HAYES SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr McCarthy |
1. Appeal Of Rights Commissioner's Decisions r-133368-wt-13, r-133369-wt-13, r-133374-wt-13, r-133375-wt-13, r-133376-wt-13, r-133378-wt-13 & r-133380-wt-13.
BACKGROUND:
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on 20th February, 2015. A Labour Court Hearing took place on 27th May, 2015 & 3rd June, 2015. The following is the Labour Court's Determination:
DETERMINATION:
This is an appeal by Dr. Peter Lukco against Decisions of a Rights Commissioner r-133368-wt-13, r-133369-wt-13, r-133374-wt-13, r-13337S-wt-13, r-133376-wt-13, r-133378-wt-13 and r-133380-wt-13 in claims made against his former employer, HSE South & Kerry General Hospital, under the European Communities (Organisation of Working Time) (Activities of Doctors in Training) Regulations 2004, S.I. 494/2004 (hereinafter referred to as the Regulations) and under the Organisation of Working Time Act, 1997 (hereinafter referred to as the Act).
The Complainant submitted complaints alleging breaches by the Respondent under Regulations 6, 7, 8, 9 and 10 of the Regulations and under Section 26 of the Act, and he also sought an extension of time under Section 27(5) of the Act.
The parties are referred to in this Determination as they were at first instance. Hence, Dr. Peter Lukco is referred to as “the Complainant” and HSE South and Kerry General Hospital are referred to as “the Respondent”.
In her Decision the Rights Commissioner did not grant the extension of time sought and found that the Complainant’s complaints under Regulations 6, 7, 8, 9 and 10 were well-founded. The Rights Commissioner did not uphold the complaint of penalisation under Section 26 of the Act. She awarded the Complainant the sum of €3,000 in compensation for the breaches of the Regulations.
The Complainant accepted the findings of the Rights Commissioner where she upheld his complaints. He confirmed for the Court that the only issues on appeal are the findings that no reasonable cause existed to extend the time for lodging his complaints and the quantum of compensation awarded by the Rights Commissioner. There was no cross-appeal.
Background
The Complainant was employed by the Respondent as a Non-Consultant Hospital Doctor (NCHD) specialising in Gynaecology and Obstetrics and based in Kerry General Hospital from 3rdOctober 2011 until 7thJuly 2013. He had previously worked with the HSE for more than five years including Portlaoise Hospital and Ballinasloe Hospital. The Gynaecology and Obstetrics Department of the Hospital employed 4 Registrars, 5 Senior House Doctors and 3 Consultants and approximately 50 midwives. There were 1,676 babies delivered in 2012 and 1,500 babies delivered in 2013.
The complaints were received by the Rights Commissioner Service on 22ndApril 2013.
Summary of the Complainant’s Grounds of Appeal
- -Extension of Time
Summary of Respondent’s Position
- -Extension of Time
Ms. Lankford submitted that there was no justification for the Complainant’s failure to lodge his complaint in November 2012. She said that from October 2012 the Complainant regularly engaged with Medical Manpower regarding grievances he had with his contract. The Complainant was on paid sick leave from 7thNovember 2012 to the end of November 2012 and from 23rdMarch 2013 the Complainant’s hours were reduced to 39 hours per week at his request. Ms Lankford submitted that there was no justification for the lengthy delay in submitting the complaint between November 2012 and April 2013.
In support of her contention she relied uponRauf v Health Service Executive(Determination No. FTD0817) where this Court considered a claim concerned a Non-Consultant Hospital Doctor who was seeking to secure a contract of indefinite duration under the Protection of Employees (Fixed-Term Work) Act, 2003. The Rights Commissioner found that his claim was not well-founded as it was submitted outside the time limit. This Decision was appealed to the Labour Court.
The Court held: –
- the Complainant moved quickly to engage legal advice when his contract was terminated. His advisors knew the law and it is unlikely, to say the least, that the Complainant himself was not aware or made aware that a time limit existed. Nevertheless, when his advisors contacted the HSE after the time limit had already expired by some 3 weeks (27thJanuary 2007) and received all immediate reply from the HSE, reiterating its position, the case was still not referred to a Rights Commissioner until 2ndApril 2007, a further unexplained delay of over two months.
Taken together with the original failure to refer the case within 6 months for which the Court finds the reasons advanced unconvincing, this further failure, at a stage when the case was already out of time, to refer the matter does not, in the view of the Court, cross even the low barrier of 'reasonable cause'.
- the Complainant moved quickly to engage legal advice when his contract was terminated. His advisors knew the law and it is unlikely, to say the least, that the Complainant himself was not aware or made aware that a time limit existed. Nevertheless, when his advisors contacted the HSE after the time limit had already expired by some 3 weeks (27thJanuary 2007) and received all immediate reply from the HSE, reiterating its position, the case was still not referred to a Rights Commissioner until 2ndApril 2007, a further unexplained delay of over two months.
The test for deciding if reasonable cause has been shown for an extension of time under Section 27(5) of the Act is well settled in a line of previous decisions of this Court, starting with the decision inCementationSkanska (Formerly Kvaerner Cementation) v CarrollLabour Court Determination WTC0338 (October 28, 2003 ). Here the Court said: -
- It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.
The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.
It is clear to the Court that the Complainant had been engaging with the Respondent in relation to concerns over his working hours since 5thNovember 2012. At that stage the Claimant was within the time limit. Nonetheless he delayed for a further five months before presenting his claim to the Rights Commissioner. The Complainant contends that his delay was caused by his lack of opportunity to refer his claim.
The Court notes that he sought legal advice in relation to a work-related matter at the end of January 2013. He was working 39 hours per week from 23rdMarch 2013 at his request for reduced working hours. The Workplace Relations Complaint Form which was used to submit his claim was signed on 31stMarch 2013 yet it was not received by the Rights Commissioner Service until 22ndApril 2013.
This is not a case where the Complainant missed the deadline for submitting a complaint. In this case the Complainant’s complaints under the Act whichinter aliacomplained of working excessive hours in breach of the Regulations were within time as upheld by the Rights Commissioner and such findings are not under appeal. On the contrary the Complainant sought to enlarge the time to encompass allegations of excessive working hours in the period from June 2012 until 23rdOctober 2012.
The delay in this case is long. The test inCementationprovides that a short delay may require a slight explanation, however, a long delay requires more cogent reasons. In these circumstances the Court cannot accept that the Complainant has both explained and justified the delay of some five months. This, coupled with the fact that his claims in respect of the six month period prior to 22ndApril 2013 were upheld by the Rights Commissioner and not appealed, leads the Court to come to the conclusion that the aspect of the Complainant’s complaint going back to June 2012 must be disallowed as being outside the appellate jurisdiction of the Court.
Therefore the Court does not grant the application to enlarge the time limit. Accordingly the Court upholds the Rights Commissioner’s Decision and will now proceed to examine the issue of the appropriate quantum for the breaches of the Regulations which occurred.
Summary of the Complainant’s Grounds of Appeal
-Quantum of Redress
Ms Barrysubmitted that the redress awarded by the Rights Commissioner was not an adequate or effective remedy for thebreaches by the Respondent which were extensive, systemic, deliberate and extended over a considerable period of time. She said that the effects of working excessive hours had a detrimental effect on the Complainant’s health which were ignored by the Respondent despite medical evidence suggesting that action should be taken to alleviate the requirement on him to work such long hours. Ms Barry referred to the fact that the Respondent is a public body and that it was well known that it was in breach of the European Working Time Directive 2003/88/EC (EWTD) in respect of NCHDs as found by the Advocate General in his Opinion in the case before the CJEU,European Commission v IrelandCase C-87/14.
She cited the Charter of Fundamental Rights of the European Union, whichrights are given expression in the EWTD of the European Parliament and the Council of 4 November 2003 concerning certain aspects of the organisation of working time, which are implemented in Ireland by means of the Organisation of Working Time Act 1997. In respect of NCHDs,Ireland transposed the EWDT into national law by means of the Regulations.
The Charter providesa right to an effective remedy in Article 47:-
- Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.
Ms Barry referred to the European Commission’s "reasoned opinion" against Ireland contending that in practice public hospitals are not applying the limits to Doctors' working time. On 20thNovember 2013 the European Commission referred Ireland to the Court of Justice for its failure to comply with the EWTD regarding the work practices of junior Doctors in public hospitals. According to the Commission there were still "numerous cases” where junior Doctors are regularly required to work continuous 36-hour shifts and to work more than 100 hours per week. The Commission considered the situation a "serious infringement" of the Directive endangering not only Doctors' health and safety but also that of their patients.
The Advocate General in his recent Opinion in theEuropean Commission v Irelandstated:-
- The aim of Directive 2003/88 is to lay down minimum requirements intended to improve the living and working conditions of workers through an approximation of the provisions of national law, in particular, those governing working time. That harmonisation at EU level in relation to the organisation of working time isintended to guarantee better protection of the safety and health of workers by ensuring that they are entitled to minimum rest periods-particularly daily and weekly - and adequate breaks and by setting the maximum average duration of the working week at 48hours, which isexpressly stated to encompass overtime.
29.In the light of that essential objective, each employee must, among other things, have adequate rest periods, which must not only be effective in enabling the persons concerned to recover from the fatigue engendered by their work, but also preventive in reducingasfar as possible the risks posed to the safety or health of employees by successive periods of work without the necessary rest.(10)
30. The various requirements laid down in Directive 2003/88 concerning maximum working time and minimum rest periods constitute rules of EU social law of particular importance, which must be applied to every worker asthe minimum necessary to ensure the protection of his health and safety. (11)
31. Although originally excluded from the scope of Council Directive 93/104/EC of 23 November 1993concerning certain aspects of the organisation of working time, (12)the activities of trainee Doctors were brought within the scope of that directive by Directive 2000/34/EC.(13)
32. In its White Paper on Sectors and Activities Excluded from the Working Time Directive of 15July 1997, (14)the Commission stated that 'the weekly hours worked by Doctors in training ... routinely exceeded 55 hours a week in many countries'. (15)That gave rise, according to the Commission, to 'a clear risk ... to the health and safety of a considerable number of trainee Doctors. To the extent that these Doctors are directly involved in medical procedures and medical decisions affecting patients, the safety of such patients could also be put at risk'.
In keeping withVon ColsonMs Barrysaid that the CJEU has consistently pointed out thatredress must be effective in attaining the objective of the EWTD which in this instance is to provide for health and safety of Doctors and their patients. Hence the sanction must have a real deterrent effect since it could never be acceptable for the advantages which accrue from any act in breach of the EWTD to outweigh the cost of any redress which might be awarded. In the case of large and financially strong enterprises such as the Respondent she submitted that only a significantly large award of compensation would act as a real and effective deterrent. InAdeneler and others v Ellinikos Organismos Galaktos Case C-212/04(involving Directive 1999/70 on Fixed-Term work) the CJEU stated in relation to the margin of appreciation left to Member States that:
- ... it is, however, to be remembered that the margin of appreciation thereby left for the Member States isnot unlimited, because it cannot in any event go sofar as to compromise the objective or the practical effect of the Framework Agreement ...In particular this discretion must not be exercised by national authorities in such a way as to lead to a situation liable to give rise to abuse and thus to thwart that objective.
InadditionMs BarrycitedConnaughton & Sons Landscaping Ltd v Stolarczyk DWT12107where the Labour Court held that a significant award over and above the economic value of an entitlement was appropriate where there had been a deliberate and conscious breach of an employee's rights.
Summary of Respondent’s Position
- -Quantum of Redress
Ms. Lankford contended that €3,000 was an appropriate level of compensation in all the circumstances. In support of her contention she citedPiotr Bryszewski -v- Fitzpatricks and Hanleys Limited TIA Caterway and the Labour Court[2014] IEHC 263 where the High Court deemed that compensation of €3,000 was an appropriate level of compensation under the Act. Furthermore, she said that the Complainant had not suffered economic loss as a result of breaches by the Respondent and accordingly the compensation awarded by the Rights Commissioner was appropriate in all the circumstances of this case.
Ms. Lankfordsubmitted that the EU Commission has recognised the complexity of compliance for NCHDs with the EWTD. She maintained that the reasoned Opinion of the Advocate General wasnot directlyrelevant to the Complainant's case.The Opinion,which issued on the 29thSeptember 2011,is directed at the Irish
Government and isthe secondstep in proceedingsbythe EuropeanCommission for breaches of European Union lawfollowing the issue ofaletter offormal notice.Thenextstep in thisprocess is theproceedings before theCJEU.TheEuropeanCommissionvIrelandcasewasinitiated on 29thSeptember 2011 and heard by the CJEUon 4thMarch 2015.Ajudgment hasnotyet been issued in this case. TheRespondent submits that thisisaseparateprocessthat will run inits own timeand, ifappropriate,will result in sanctions for the State.
Ms. Lankford submitted that in relation to any punitive or deterrent role of the sanction in this case it is open to the Court to take into account the fact that the Respondent is already party to a scheme of sanctions for breaches of the Act and the Directive. She said that in or about October 2013 the Labour Relations Commission brokered an agreement between the IMO acting on behalf of NCHDs and the HSE which has taken into account the systemic difficulties that the Respondent faced in implementing the Directive.
The said proposal includes an agreed basis for reducing NCHD hours (for all Doctors and not solely Doctors who are members of the IMO) and eliminating long shifts. In addition, sanctions were provided for in the said proposal to ensure full compliance within the timeframes which had already been agreed between the parties. These sanctions were to be levied on any hospital failing to comply with the LRC proposals. Hospitals were divided into three bands with an annual applicable financial maximum sanction. The financial sanction applicable in respect of the Respondent which is classified as a Band 2 Hospital provides for sanction up to €350,000.00. A sanction of €35,000 per month was imposed on the Respondent for breaches of the Act following a site visit to the Hospital in early 2014, this was paid out of the Hospital’s budget from February to December 2014. The IMO confirmed that as the Hospital has reported compliance with a maximum 24-hour shift working from April 2014 consequently no sanctions were imposed, although it made the point that it has no concerns over the recording process in the Hospital.
Therefore, Ms Lankford submitted that an effective and structured scheme of sanctions is already in place to ensure a real deterrent against future breaches of the Act and the Regulations by the Respondent.
Ms. Lankford submitted that the above remedy provides adequate protection for the Complainant's rights under Article 31 and Article 47 of the Charter of Fundamental Rights of the European Union.
Evidence
Evidence was given on behalf of the Respondent by Ms Anne Pardy, Business Manager, National Doctors’ Training & Planning, National Human Resources Division, HSE. Ms Pardy outlined details of the LRC “Proposals to address maximum 24 hour shift working and achieve EWTD compliance” which was voted upon on 14thNovember 2013 and accepted by the parties involved (HSE, Department of Health, Department of Public Expenditure and Reform and the IMO (hereinafter referred to as “the Agreement”). The Agreement was designed to reduce long working hours for NCHDs and achieve EWTD compliance and has been operated by the HSE in conjunction with the IMO since.
Ms Pardy told the Court that the Agreement involves a joint IMO/Health Service Management National Verification and Implementation Group to oversee verification and implementation of measures to reduce NCHD hours, eliminate shifts in excess of 24 hours and achieve overall compliance with the Directive within each hospital. Analysis data and timesheets are signed off by NCHDs and Management.
The Group commenced its verification/ implementation process in November 2013. In the event of default it imposed sanctions on a proportionate basis on hospitals which did not conform. The process involved verification visits on a monthly basis by the HSE and the IMO to collect data from the local NCHD Committees in hospitals which was then reported on a monthly basis to the HSE National Director, Acute Hospitals. She said that the main focus of the Agreement was to ensure that NCHDs were not required to work in excess of 24-hour shifts and its financial sanctions were designed to specifically deal with that issue.
Ms Pardy told the Court that following a site visit to the Respondent Hospital in early 2014, the IMO reported that the Hospital was making significant efforts to comply and there was a significant increase in the number of NCHDs recruited, however, as it was still experiencing challenges in complying, a financial sanction and other non-financial sanctions were imposed on the Hospital to ensure accountability by Hospital Management. The Hospital had to engage local agency staff in order to comply with the maximum 48-hour working week requirement.
She said that a further site visit occurred in the spring of 2015 and the Respondent Hospital was found to have made major progress and no further sanctions were imposed.
Ms Pardy said that Ireland had a long history of endeavouring to comply with the EWTD in respect of NCHDs and a service reconfiguration will be required to achieve full compliance. She said that at present there was 93% compliance nationally with the restriction on working a maximum of 24-hour shifts and 70% on working a maximum of 48 hours per week. Moreover, the Respondent Hospital is now in line with national statistics on 24-hour shifts, has exceeded the national average on the maximum 48-hour working week requirement and the Respondent Hospital has achieved 80% compliance. She said that the situation in the Respondent Hospital had significantly improved, it is a work in progress and permission has been granted to appoint additional NCHDs supported by the allocation of a training programme with Pakistan to deal with recruitment difficulties and training opportunities.
Ms Pardy also made reference to the pending judgement due from the CJEU inEuropean CommissionvIrelandand said that very serious decisions will need to be made at Department of Health level concerning maintaining delivery of acute hospital services while endeavouring to be fully compliant with the EWTD. The Agreement is designed to exhaust every measure in an effort to achieve this.
Conclusions of the Court - Quantum of Redress
The liability of the Respondent in respect of the breaches held to have occurred in the period 23rdOctober 2012 to 22ndApril 2013 are not in issue in this appeal and therefore the only matter for consideration is the appropriateness of the quantum of compensation awarded by the Rights Commissioner.
Counsel for the Complainant submitted that the award was not based on sound legal principles governing the measurement of quantum in cases such as this and that it was not adequate or reasonable in all the circumstances of the case. She relied uponConnaughton & Sons Landscapingwhere the Court held that“asignificant award of compensation over and above the economic value of an entitlement under the Act is only appropriate where there has been a deliberate and conscious breach of a worker’s rights”.
The size of any award intended to have dissuasive effect must for its effectiveness have regard to any pecuniary loss suffered by the Complainant and the gravity of the transgression by the Respondent. In this case the Complainant did not suffer any pecuniary loss in consequence of the contraventions of which he has made complaints.
InEdward James Feeney v Milagros Baquiran[2004] 15 E.L.R. 304 this Court made it clear that the provisions of the Act, and of the Directive on which it is based, are health and safety imperatives. The Court is satisfied that the Complainant was persistently required to work hours in excess of the maximum permitted by the Act and was deprived of adequate rest breaks. The Complainant and his wife brought this to the attention of the Respondent between October and December 2012. On 25thFebruary 2013 his Medical Advisor advised the Respondent that due to his medical condition he was unable to work for more than 48 hours per week. This was confirmed by the Respondent’s Occupational Health Physician on 27thFebruary 2013.
In the well-knownVon Colsoncase, referred to by Counsel for the Complainant, the CJEU made it clear that where a right which is derived from the law of the Communities is infringed the sanction for breaches must be effective, proportionate and dissuasive and must provide a real deterrent against future infractions. However, the Court also pointed out that the redress must be proportionate and appropriate.
The Court notes that in response to the grievances raised and the medical advice given, the Respondent on 22ndMarch 2013 removed the Complainant from on-call duties and reduced his hours to 39 hours per week. There is no doubt that the Respondent admitted that there had been breaches of the Regulations and that the Complainant was required to work excessive hours. It stated that there was a crisis situation in the Respondent Hospital at the end of 2012/beginning of 2013 due to a number of factors including providing cover for maternity leave and restrictions on recruitment. It sought to address the issue in December 2012 when approval was given to appoint two further NCHDs.
The Court also notes that, while the Agreement post-dated the cognisable period covered by the complaints, due to its implementation the situation has been addressed and improvements have been achieved and will continue to be the subject of further verification and compliance measures in the future. The Respondent has been subjected to financial sanctions for such breaches and the HSE, as an organ of the State, may depending on the outcome of theEuropean Commission vIrelandCJEU judgement be subject to further sanctions.In such circumstances the Court is of the view that external influences have provided a dissuasive element against future infractions and have been effect in bringing about change within the Respondent.
Having regard to all the circumstances of the instant case the Court believes that the award made by the Rights Commissioner is disproportionate to the gravity of the contraventions found to have occurred. The Court is satisfied that an award of €20,000 is appropriate and better meets the requirements of proportionality.
Determination
It is the determination of the Court that the Decision of the Rights Commissioner should be amended to provide that the Complainant be awarded compensation in the amount of €20,000. To that extent the within appeal is allowed.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
26th June, 2015______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.