ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00003062
| Complainant | Respondent |
Anonymised Parties | A Consultant Physician | Health Sector |
Complaint(s)/Dispute(s) for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00004451-001 | 13/05/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act 1994 | CA-00004491-001 | 13/05/2016 |
Date of Adjudication Hearing: 19/07/2016, 25/08/2016 and 15/03/2017
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Location of Hearing: The Anner Hotel, Thurles, Co. Tipperary
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 13 of the Industrial Relations Acts 1946 - 2015 and Section 7 of the Terms of Employment (Information) Act 1994, 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.
Background:
The complainant is a Consultant Physician who seeks a full-time permanent contract with the Respondent on a 39 hour per week basis. It is his submission that he is entitled to one by virtue of his continuous service with the Respondent and as provided for by the Protection of Employees (Fixed Term Workers) Act 2003. It is further claimed that the Respondent failed to observe Sections 3 and 5 of the Terms of Employment (Information) Act 1994. |
Summary of Complainant’s Case:
The complainant has been employed by the Respondent since 1996 summarised as follows: 01/01/96 to 31/08/96 - 39 hr week Hospital A Senior House Officer 01/10/96 to 31/12/96 - 39 hr week Hospital B Senior House Officer 01/01/97 to 30/06/97 - 39 hr week Hospital B Senior House Officer 01/07/97 to 30/06/98 - 39 hr week Hospital C Senior House Officer 01/07/98 to 30/06/00 - 39 hr week Hospital C Registrar 01/07/00 to 30/06/01 - 39 hr week Hospital D Registrar 01/07/01 to 30/06/02 - 39 hr week Hospital E Specialist Registrar 01/07/02 to 30/06/03 - 39 hr week Hospital F Specialist Registrar 01/07/03 to 30/06/04 - 39 hr week Hospital G Specialist Registrar 01/07/04 to 30/06/05 - 39 hr week Hospital H Specialist Registrar 01/07/05 to 30/06/06 - 39 hr week Hospital I Specialist Registrar 19/09/05 to 09/06/06 - 39 hr week Hospital J Consultant Physician 03/07/06 to 10/08/08 - 39 hr week Hospital J Consultant Physician 11/08/08 to present - 39 hr week Hospital J Consultant Physician
It is submitted that the complainant was never issued with a written contract or statement of his terms and conditions of employment upon commencement of his employment with the respondent. |
He was, however, issued with a “fixed term” contract of employment in August 2007. The contract covered a period of five weeks duration, replacing two physicians. Therefore, it is submitted that in the 20 years in which the complainant has been employed he has only been issued with one fixed term contract which was for five weeks duration.
In July 2015, the complainant approached the Medical Manpower Manager (Mr M) in order to get written confirmation of his employment status. It was confirmed that he would be issued with a full time “contract of indefinite duration”, and that he would be placed on point 6 of the relevant pay scale. However, in spite of repeated requests, the respondent failed to issue any such contract.
In November 2015, the complainant took two months annual leave due to the stress of the situation.
In January 2016, the respondent wrote to the complainant stating:
“I wish to inform you that your work hours will be 19.5 hours per week in accordance with your contract of indefinite duration when you recommence your employment on 2nd May 2016”.
It is submitted that this was an attempt by the respondent to place the complainant on short-time without having contractual authority to do so. In April 2016, the respondent stated that it wished to “confirm that our offer of the additional 19.5 hours per week remains in place. That is a 12 month temporary fixed term contract for 19.5 hours per week which commenced on 30 November 2015”.
It is argued that the complainant’s employment status has been addressed in an entirely unsatisfactory and haphazard manner by the respondent and that the situation must be rectified in the following scenarios:
The complainant has been employed in a permanent capacity since 1996 and for the vast majority of the employment has worked a 39 hour week. He now seeks a recommendation that he be furnished with a written contract that he is a full-time permanent employee
Should it be determined that the contract he received in 2008 (for 5 weeks) was a contract which changed his employment to a “fixed term” one, it is then submitted that the complainant reverted to a permanent employee at the expiry of that contract and it should be noted that he worked a 39 hour week at that time.
As a further alternative, if it was accepted that the complainant was employed in a fixed term capacity since the commencement of his employment, then he became entitled to a contract of indefinite duration in 2007, four years after the enactment of the Protection of Employees (Fixed term workers) Act 2003. In any event, whatever way the complainant’s employment history is viewed, it is submitted that he is now entitled to a contract of indefinite duration based on a 39 hour week.
It should also be noted that the complainant’s salary has been subject to constant change and it is submitted that he should be restored to his 2009 salary. It would appear that the respondent may be seeking to rely upon a 30 per cent pay cut that was introduced for newly appointed consultants after 2012. Should that be the case, any such practice is erroneous from both a factual and legal perspective. In the alternative, and in light of the complainant’s length of service, it is submitted that he should be entitled to a salary in accordance with the relevant pay scale for the position.
In relation to the claim under the Terms of Employment (Information) Act 1994, it is submitted that the complainant was never issued with a written contract / statement of terms and conditions of employment within two months of having commenced his employment. It is submitted that this is a clear breach of Section 3 of the Act. The respondent also made a number of changes to the complainant’s terms and conditions of employment such as placing him on short time and reducing his pay without notification. This is a breach of Section 5 of the Act.
Summary of Respondent’s Case:
The complainant has been employed at the hospital cited in the claim, in a temporary / locum capacity since December 2010 and was issue with a contract of indefinite duration with effect from December 2014. He also provided locum cover on an irregular basis not exceeding 46 days in total between 2007 and 2008. It is submitted that his temporary employment history from 2010 is as follows: 08/02/2010 – 12/02/2010 replacing Dr A 15/02/2010 – 19/02/2010 replacing Dr A 22/02/2010 – 05/03/2010 replacing Dr A 31/05/2010 – 13/06/2010 replacing Dr B (Locum) 14/06/2010 – 27/06/2010 replacing Dr C 3 hours daily 20/09/2010 – 24/09/2010 replacing Dr C 3 hours daily 06/12/2010 – 14/10/2011 replacing Dr D maternity leave 15/12/2011 – 15/09/2013 covering vacant post pending filling 25/11/2013 – 08/12/2013 Locum for Dr A 09/12/2013 – 02/03/2014 Consultant / General Physician 19.5 hours per fortnight 03/03/2014 – 31/03/2014 Consultant / General Physician 19.5 hours per fortnight 01/04/2014 – 06/07/2014 Consultant / General Physician (half post) 07/07/2014 – 06/11/2014 Consultant / General Physician 07/11/2014 – 04/01/2015 Consultant / General Physician (half post) 05/01/2015 – 04/04/2015 Consultant / General Physician 39 hours per week 05/04/2015 – 04/07/2015 Consultant / General Physician (half post) 05/07/2015 – 31/12/2015 Consultant / General Physician 01/01/2016 – 31/12/2016 Consultant / General Physician 30/11/2015 - offered an additional 19.5 hours per week on a temp basis to provide support for CD on national duties. The complainant is currently absent without leave from his post. It is argued that prior to 2010, the complainant was assigned to various hospitals in training posts. It should be noted that Senior House Officer posts, Registrar and Specialist Registrar posts are training posts which are either part of a structured rotation programme or are filled directly by the hospitals. There are a defined number of these posts in each speciality and as they are training posts they are filled on a six month or twelve month temporary contract basis to ensure that doctors have access to the posts for training. Permanent contracts are not issued in these posts as the issuing of this type of contract would effectively cease medical training in the speciality concerned. An example of the process is contained in the letter (submitted) from the Royal College of Surgeons, dated 4th March 2005, recommending the complainant for appointment to undergo “”Specialist Registrar Training in the Speciality of General (Internal) Medicine”. It is submitted that the complainant worked varying hours depending on the post being covered and that he was not directly employed between 8/12/2008 and 17/8/2009, 31/10/2009 and 5/2/2010, 28/6/2010 and 6/12/2010. In accordance with Section 9 (1) of the Protection of Employees (Fixed Term Workers) Act 2003, the complainant was entitled to a Contract of Indefinite Duration with effect from 6th December 2014. It is argued that the reference year in determining the contract hours being December 2013 to December 2014, this equated to 19.5 hours per week. The complainant’s hours had increased from 19.5 hours to 39 hours per week on a temporary basis from 30th November 2015 (see above) and therefore the contract consisted of 19.5 C.I.D. and 19.5 temporary hours. The complainant, through his representative, contends that his salary has “been subject to constant change in recent years, such changes were made without contractual authority on the part of the Respondent or without having received the Complainant’s written consent prior to making such changes”. It should be noted that the complainant holds a Type B Consultant contract. There have been significant reductions in the Type B Consultant salary rates, the first reduction in salary was implemented as a result of the Financial Measures in the Public Interest Act 2009. In addition to these salary reductions a new consultant salary scale was introduced on 1st October 2012 and this applied to all consultants with the exception of serving consultants appointed prior to 1st October 2012 who were moving permanent posts and were allowed retain their existing salaries. Consultant salary scales were revised in 2015 backdated to 1st September 2014 and the salary scale currently in place for Type B Consultants is €120,000 to €157,000 (9 points on the scale). The complainant in this case was given incremental credit to the 4th point on the Type B Consultant salary scale and was paid arrears backdated to 1st September 2014. In relation to the issuing of contracts the standard practice in acute hospitals is to request the Consultant to collect the contract from the Personnel Department. The Staff Officer within the Medical Manpower Department has confirmed in writing the process and the fact that she advised the complainant that the contracts were available and despite the fact that she had advised the complainant that the contracts were available and despite the fact that the complainant frequented the Medical Manpower Office on a number of occasions he failed to collect or sign the contracts. |
|
Findings and Conclusions:
CA-00004451-001 Industrial Relations Act 1969 The complainant’s initial submission of the case to be examined under the Act states that “From December 2010 my job is continuous till date”. During the hearing, arguments were put by his representative including that he was employed on a continuous basis since 1996 and he was therefore entitled to a contract of indefinite duration from 2007, by operation of law. One main issue appeared to be that the complainant believed he was promised a full time permanent contract and this did not materialise. He believed that it was blocked by colleagues. I found no evidence to support this argument of “blocking” his post. In relation to his claim that he is entitled to a contract of indefinite duration based on a 39 hour week, from 2007, I note that the claim is not submitted under the Protection of Employees (Fixed-Term Workers) Act 2003. I note that the complainant was given a contract of indefinite duration from December 2014 and therefore would not have been classified as a Fixed Term Worker at the time of receipt of his complaint, and likely found to have no “locus standi” to pursue such a complaint. However, for completeness of investigation of his dispute with the respondent employer, I have examined the evidence and submissions given and find as follows: The records show the complainant was in SHO and Registrar training posts for a substantial period during the years which he relies upon to prove his case for a C.I.D. effective from 2007. I note the respondent’s records show that he was not directly employed between 8/12/2008 and 17/8/2009, 31/10/2009 and 5/2/2010, 28/6/2010 and 6/12/2010. The complainant’s employment was deemed by the respondent to have been continuous from 6th December 2010. I therefore find that on the basis that the complainant’s employment was continuous from 6th December 2010, the respondent’s decision to place the complainant on a contract of indefinite duration from 6th December 2014 was correct and that the application of incremental credit was appropriate. In relation to the dispute regarding the hours which the complainant states should be a 39 hour week, the complainant provided cover for 19.5 hours per week between 2013 and 2015, and this is the fixed term contract which was converted to a contract of indefinite duration, based on the qualifying year and implemented from 6th December 2014. The complainant’s hours were increased by an additional 19.5 hours on a temporary basis with effect from 30th November 2015, to provide support while the Clinical Director was involved in national matters. He was offered these additional hours but has been on annual leave, special leave and unauthorised leave since then. For the reasons cited, I conclude that the respondent employer acted correctly and I cannot uphold the complainant’s claim that he should have been offered a contract of indefinite duration based on a 39 hour week.
CA-00004491-001 Terms of Employment (Information) Act 1994 |
The Staff Officer Medical Manpower provided a statement dated 8th March 2017 which is worth noting as follows:
“As is done with every temporary / locum consultant, (the complainant) was requested to collect his contracts from my office for signing. On one such occasion I sent an email to (him) regarding this to which he replied. This email was in reference to the multiple contracts which were in my office. Contracts for the periods 06.12.2010 – 14.11.2011, 15.12.2011 – 31.03.2013 and 1.4.2013 – 15.09.2013 were kept in a folder in my office prepared and ready for (him) to sign.”
She referenced emails dated 6 February 2013 between the complainant and herself in which the complainant states he will “pop in” some time, to collect the contract. It appears to me that the respondent went to considerable efforts to furnish the complainant with his written terms of employment and I do not uphold the complainant’s complaint.
Decision:
On the basis of the findings and conclusions above, the complainant’s complaints submitted under Section 13 of the Industrial Relations Act 1969 and the Terms of Employment (Information) Act 1994 are not upheld.
Dated: 27th April 2017
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Key Words:
|