ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003558

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 11/10/2016

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

The claimant has been employed as a Social Care Worker with the respondent since July 2004.Initially she was employed to provide locum relief from July 2004- Sept.2005 but worked full time hours and continued to work full time until January 2007 while based in South Tipperary. Since that time the claimant has been working 39 hours a fortnight in Waterford .On the retirement of her colleague (Social Care Leader) in March 2016 , the claimant sought to increase her hours to full time – HR responded to the effect that the post would be advertised and that sleep over hours were being reviewed. The union invoked the Code of Practise for Part Time Workers and submitted the claimant should have been able to avail of the additional hours on their becoming available – it was submitted that this would be the practise in the HSE. Management rejected the union’s submission and contended that the claimant could not apply for the other half of the post as sleeping hours now constituted work hours. The ensuing correspondence between the parties was submitted in evidence.

The union submitted that the claimant should have been accommodated, that facilitating her would have been a cost effective measure , that her request was in accordance with the provisions of the Code of Practise on Part Time work ,that the respondent was in breach of standard procedures within the Health Sector employments by requiring existing staff to compete for such hours and that the claimant should not have been singled out on foot of the sleep over review. It was submitted that it was incomprehensible that such a large employer could not facilitate the claimant’s request for additional hours.

Respondent’s Submission and Presentation:

The respondent set out a chronological account of the claimant’s employment profile with the company – it was submitted that the claimant’s application presented a number of difficulties – the claimant wished to be appointed as social care worker to a regraded position of care assistant ; it was further contended that by complying with the claimant’s request the employer would be placing the claimant in breach of the Organisation of Working Time Act 1997.It was submitted that the Code of Practise did not confer rights on the claimant and that consideration of each case must take into account operational exigencies, employee relations framework as well as individual circumstances of each case. It was advanced that this was recognised by the Code in Sections 2,4and 13.It was strongly argued that there was no automatic right to transfer within the employment and that for the reasons set out the company could not accede to the claimant’s request.

Recommendation

At the request of the WRC the respondent furnished a copy of the company’s Staff Recruitment and Selection Policy and Procedure. While I acknowledge that compelling arguments have been advanced by the union with respect to the Code of Practise and the custom and practise prevailing within other health sector employments, I am obliged to accept the contention of the respondent that existing recruitment practises require that candidates submit for competition in all circumstances. This is definitively captured in the company’s procedure referred to above and consequently has collective application. Accordingly; concession of the claimant’s request would unilaterally change an existing practise that has collective application. In those circumstances I have no jurisdiction to uphold the complaint. I note that the procedure is due for review in 2018 and recommend that the union be invited to express their views and engage with the respondent on any

amendments they consider appropriate to effect a change in current practises

Dated:   09/01/2017