ADJUDICATION OFFICER RECOMMENDATION

Adjudication Recommendation Reference: ADJ-00000622

Dispute for Resolution:

Date of Adjudication Hearing: 9th March 2016

Workplace Relations Commission Adjudication Officer: Sean Reilly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act 2015 and Section 13(3) of the Industrial Relations Act 1969, following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.

Trade Union Submission and Presentation:

The Trade Union said they are seeking recompense for the Complainant for the financial loss associated with the move from his post in Diabetic Retinopathy in February 2014 and also a commitment to make a permanent post available to him.

The Trade Union said that the Complainant has a permanent contract of employment for a Staff Nurse Post.   He took up a 0.5 WTE Post as a Diabetic Retinopathy Screener, Grade 6 in May 2005, his remaining 0.5 being worked in his Staff Nurse Post.   He was issued with 9 fixed-term contracts for the Retinopathy Post, which under the Fixed-Term Work Act would have given him entitlement to a permanent post.   He retained his Staff Nurse Post at 0.5 WTE.

The Grade 6 post was subsumed into the National Cancer Screening Service in February 2014 and the Complainant was unclear on his future.   In the absence of any direction from management he believed that he had to make some effort himself to find a post and as a consequence he was redeployed to his current temporary post as a Community Registered Nurse (Public Health Nurse).   He is being issued with ‘If and When Required’ contracts of employment at 3 monthly intervals.   His pay statements do not even recognise this post and only refers to his 0.5 WTE as a Staff Nurse, while his earnings from his CRGN post is reflected as ‘A Basic Cash Adjustment’.   He has worked a total of 2,029 hours in this post over the 2 years since his move on 24^th February 2014.  

The Complainant’s previous post had a salary of €45 – 55k on a 5 point scale, plus 2 LSI’s, while the salary for the current post is between €45 - €54k on a 9 point scale.   The Trade Union said this equates in the hourly pay rate of almost €6 per hour and they said the current post also requires him to work 39 hours per week, compared to 37 in the Retinopathy Post, he now has to work weekends, which was not required in his previous post.   SIPTU said that therefore the Complainant is:

• At a loss of earnings
• He has no security of employment - and he
• Has to work longer hours

The Trade Union said that this is unbelievable from the perspective of an employee who started out with a permanent secure whole-time contract of employment as a Staff Nurse.

The Complainant was told that the Respondent was setting up or expanding the Ophthalmic Clinic in the named Region and that he would be accommodated with a permanent placement when this was finalised; he was asked for and provided his CV.   However the position has not materialised and he remains on precarious 3 monthly contracts.

The Trade Union said there should be no loss associated with the Complainant’s redeployment from his Retinopathy Post to his current CRGN position and he must now have a permanent position made available to him.

The Trade Union said their understanding of the situation is that the decision to outsource the Retinopathy Service, to bring is under the Cancer Screening, who were to invite tenders for the provision of this Service was for the purpose of streamlining the Service and for budgetary reasons.   The Trade Union said the Complainant had no alternative other than to co-operate with this change and move to the new post, in reality this was imposed upon him.   However this imposed change has resulted in financial loss to him and has removed the security of employment he had enjoyed prior to this.

The Trade Union said that the redeployment terms of the Section 6.1.12 of the PSA provides for the re-deployment of employees:

“where as a result of organisational restructuring an individual’s job no longer exists in its current format.”   Section 6.119 provides that while the redeployment may not always be to a role/grade of similar/equal status, “however an employee’s existing pay and terms and conditions of employment will be protected if they participate in the redeployment scheme.”

The Trade Union said that the Complainant’s existing pay and terms and conditions of employment were not protected and his security of employment was negatively affected.

The Trade Union said that overall the situation has left the Complainant is a less beneficial position than before the change and he must now be compensated for this loss, which needs to be calculated by the Respondent, but based on the Complainant’s own rough calculations amounts to a approximately €12,000.00c.

The Trade Union said the Complainant had been given to believe that there would a permanent position for him when an Ophthalmic Clinic is set up in the named Region; however there are no timeframes or guarantees on this.

The Trade Union said that therefore the Complainant must be given a permanent contract for the 0.5 WTE post he currently hold as CRGN or the post that was promised to him: alternatively he would be agreeable to give up his position in the location he worked in originally (Staff Nurse) and take up a full-time post as CRGN so long as this did not result in less beneficial terms and conditions than he enjoyed prior to his move in February 2014.

The Trade Union and the Complainant sought a favourable recommendation.

Summary of Respondent’s Position:

The Respondent said the Complainant is a permanent staff nurse currently working 0.5 WTE in Ophthalmic Services in a named Area and 0.5 WTE PH Nursing Services in the same Area and he is correctly and appropriately paid as such, he has been in these positions since February 2014.

The Respondent said that in May 2005, the Complainant was seconded from a named Hospital on a 0.5 WTE as a Retinal Photographer to the Diabetic Retinopathy Service (DRS) and he was paid at the 1^st points of the Grade 4 Scale as nationally agreed.

In 2012/2013 there were national negotiations about the outsourcing of the DRS to a private provider. These negotiations concluded successfully in mid 2013 and the Service went to tender, a successful applicant was selected and appointed.

At that stage the Complainant and his colleague in Donegal were notified that this was happening and a process under the Public Service 2010/Croke Park Agreement was commenced and successfully concluded with the Complainant’s Trade Union.

The Complainant’s post as a Retinal Photographer ended in line with his final contract on 30^th April 2014.   At this stage the offer of full-time work in in the location he originally worked was on offer, but the Complainant commenced work as a Community RGN with PHN Services in the same Area.

The Respondent said that at this point local discussions were taking place with PCCC in a named area regarding the development of a community ophthalmology service and there was a general consensus that the Complainant’s skillset would match the requirement for this potential post.

The Respondent said that at this point for a number of reasons, namely:

• Public Service Moratorium
• Funding
• Finding suitable accommodation
• Service need priorities
• Deciding what grades would apply, etc

The Respondent said to date this post has never been established, but it remains on the Service Plan as one of the top priorities.

The Respondent said that they have never calculated the Complainant’s exact salary to identify if there was a loss of earnings associated with the transfer from DRS in line with the PSA 2010.   In 2015 the Complainant earned €24,432.54c within the PHN Service and €3,926.36c year to date.   A staff nurse at the top of the scale earns €45,990.00c and a Grade 6 earns €55,023.00c per annum.   Also a factor to consider is that if the Complainant had chosen to go back to the location he originally worked full-time to his substantive post as offered there may have been no loss of earnings.   The Respondent said the Ophthalmic post could potentially ensure that there may be no loss of earnings going forward.   The Respondent said they consider this to be an academic issue that is resolvable.

The Respondent said that as the Complainant has the identified skillset to work in Ophthalmology, it remains their position to offer him employment in that facility once it is established.   The application for the rental of a property is currently with the National Property Committee awaiting approval.   Once approval is granted the refurbishment of the Unit will commence and they said that this has been conveyed to the Complainant on several occasions.

The Respondent submitted that based on the foregoing it was clear that they had behaved reasonably and fairly in this matter and accordingly they sought that the claim/complainant be rejected and their position be upheld.

Findings and Recommendation:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 13(3) of the Industrial Relations Act 1969 requires that I make a recommendation to the parties to the dispute setting forth my opinion on the merits of the dispute.

I have carefully considered the submission of the parties and I have concluded as follows.

The obvious resolution to this dispute and that is acceptable to both parties is for the Complainant to be employed in the new Ophthalmic Clinic in the named Region when it is established.

However the difficulty with that proposition is that the Respondent is unable to confirm when it will be operational, and obviously it is not reasonable to expect the Complainant to accept such a situation with no confirmed timescale for its commencement, while he remains in a precarious position, sustaining a continuing loss in pay.   While that proposition probably is a reasonable way to ultimately deal with the matter; the matter and the position the Complainant finds himself in must be properly and fairly dealt with by the Respondent in the interim.

I note that Section 6.1.12 of the PSA, deals with the rationale for redeployment and it states:

“Redeployment of employees may be required for a number of reasons including the following:—      

• to meet organisational and operational needs, including reconfiguration of services;
• where, as a result of organisational restructuring, an individual’s job no longer exists in its current format”  

I note that what occurred with the Complainant when the decision was made by the Respondent to outsource the Retinopathy Service, which the Complainant had no option but to co-operate with and move or redeploy to an alternative position, is four square in line with the above quote from the PSA and accordingly the Complainant is entitled to the protections afforded to him under the PSA, which provides that “while the redeployment may not always be to a role/grade of similar/equal status.   However an employee’s existing pay and terms and conditions of employment will be protected if they participate in the redeployment scheme.”

I note that the Trade Union and the Complainant state that his terms and conditions of employment were not protected on his redeployment and they state that it is for the Respondent to calculate the losses he suffered, but they estimate it to be approximately €12,000.00c. For their part the Respondent states they have never calculated the Complainant’s exact remuneration to identify if there was a loss of earnings associated with his transfer.   The Respondent also said they consider this to be an issue that is academic and easily resolvable.  

I note the Complainant has confirmed that he would give favourable consideration to any position within the employment that would give him the pay of the Retinopathy Service Grade 6 post.

I am satisfied that the Complainant was and is entitled to have his existing pay protected upon his redeployment from the Retinopathy Service and on that basis I see considerable merit in the claim and it is upheld.    

I recommend that pending the commencement of the Ophthalmic Clinic in the named Region and the Complainant’s commencing there in Retinopathy Services that the Respondent either provide him with a position that will attract the same rate of remuneration that he enjoyed when working in the Retinopathy Service prior to 30^th April 2014 or pay him that rate of remuneration in his current position pending any commencement in the Ophthalmic Clinic in the North West.   In addition I further recommend that the Respondent calculate the loss in remuneration suffered by the Complainant since his transfer from the Retinopathy Service on 1^st May 2015 (based on his remuneration in the previous year) and pay him that sum in compensation for loss of earnings within 8 weeks of the date of this Recommendation.

I so recommend.

Dated:   24^th May 2016