ADJ-00006981

Complainant

Respondent

Parties

A Pharmacist

A Health Service Provider

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-00009455-001

01/02/2017

The complainant was employed initially as a pharmacy technician since 2004 and since then as a pharmacist since becoming fully qualified in November 2008.

He is employed on the basis of a contract of indefinite duration, and is a member of the respondent’s superannuation scheme.

A number of his colleagues undertaking the same work are engaged on a ‘sessional’ basis and enjoy a higher hourly rate of remuneration. In recent times some have gained access to the superannuation scheme.

The complainant wishes to have his status altered to that of his ‘sessional’ colleagues to avail of the higher rate of remuneration.

The difference between the two is approximately €17,000 per annum.

The complainant has been seeking a change in his status since 2008 and has been given various different reasons why his request would not be granted.

Throughout this period new entrants were recruited as ‘sessional’ employees and enjoyed a higher rate of remuneration than the complainant.

His complaint is that he wishes to be placed on a sessional contract so that he can enjoy the higher rate of remuneration associated with that form of contract.

The respondent does not dispute that the complainant has been seeking a change in his status as claimed, both in the course of his employment as a technician and since he became a pharmacist.

However, he accepted a signed a contract as a permanent and pensionable employee which still governs his terms of employment.

Sessional employees initially enjoyed a higher rate of remuneration because they did not enjoy the range of employment benefits available to ‘permanent’ employees, such as annual leave, sick leave and pensions and were generally   contracted for short periods.

No further sessional pharmacists will be engaged and there are ‘legacy’ issues which are currently the subject of national negotiations aimed at reconciling the current anomalous position.

In addition to relying on the current contract with the complainant the respondent says that it would not have authority from its parent Department of Health and Children to deviate from the existing pay scale.

This is a somewhat unusual case.

Normally, the achievement of a permanent, pensionable contract would be the aspiration of most employees who did not have one.

That a complainant with such a contract would seek to have set it aside in favour of one that might be a good deal less secure may seem odd.

Of course, the very significant disparity in the earnings of the two categories is an understandable factor and source of grievance.

Also, the traditional differences between who might be treated as contractors for service in the past have been narrowed by the effect of legislation such as the Protection of Employees (Fixed-Term Work) Act 2003 and it appears that sessional employees may gain access to the superannuation scheme should they wish to do so, and some greater security of tenure.

Nonetheless, and notwithstanding the salary variation it is almost counter intuitive to recommend in the complainant’s favour and cast him into the, at best, uncertainty of the sessional role.

It would require him to resign his current position and require the respondent to agree to engage him on the sessional basis.

In the absence of some certainty about the latter it would be pointless, and indeed hazardous to recommend the former.

Indeed, there are no circumstances one can imagine where an advisor, and therefore much less an Adjudicator would incur the very substantial risk (for the complainant) of being associated with such a suggestion or recommendation (to resign), notwithstanding the financial attractions to the complainant.

Having regard to the harsh realities and all the known circumstances these financial attractions will not be achieved through the medium of this case, as the respondent made clear in its submissions and perhaps collective bargaining represents the only serious opportunity to achieve a resolution of the anomalies.

It would also compound the difficulty the respondent is engaged in attempting to resolve by adding the complainant to the problem.

In the event, these considerations are all rendered irrelevant by the terms of the complainant’s contract which he freely entered into.

The complainant is bound by the terms of that contract.

In the absence of consent on the part of the respondent to vary it, (and there is no prospect of this) he is bound by its terms, unless he resigns (which he should certainly not be tempted to do in pursuit of his current objective).

Accordingly, for all these reasons, but in particular on account of his contractual position, I cannot recommend in his favour.

For the reasons set out above I do not uphold CA-00009455 and it is dismissed.

Contract of indefinite duration, request to vary.