ADJ-00004159

ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00004159

Parties:

Complaint(s):

Date of Adjudication Hearing: 13/02/2017

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Procedure:

In accordance with Section 41 of the Workplace Relations Act, Section 13 of the Industrial Relations Acts 1969 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).

Background

The claimant has been employed by the Southern Health Board since 2001. On its formation in 2004 the HSE became the employer. On the 1^st January 2004 the respondent became the claimant’s employer. On the 8^th June 2010 the claimant took up the position of Residential Centre Manager and since that date his working hours have been 8 am to 4 pm five days per week. In 2015 the claimant was offered, and accepted, the position with the respondent and he commenced the role in August 2015. It was submitted on his behalf that the departing centre manager, who had moved to a position as Interim Service Manager for the respondent was to become the claimant’s line manager. It was stated that in all communications concerning his transfer it was clearly under stood that the claimant’s hours would remain the same as for the previous 5 years i.e. 8 am to 4 pm. The claimant received a written contract of employment dated the 20^th October 2015.

It was submitted that in May 2016 nine months after the claimant’s commencement the manager raised an issue with the claimant in relation to his working times. Following a meeting on the 11^th May 2016 that the claimant would agree to change his working hours from 8 am to 4 pm to 9 am to 5 pm. The claimant at all times opposed the proposed change of his working hours and remains opposed to such a change. A number of meetings took place but the issue has not been resolved.

The respondent for their part submitted that what they had asked from the claimant was a reasonable request. It was submitted that it was at the claimant’s request that he was facilitated with a transfer to the respondent’s location in August 2015. The request was in line with the contract of employment signed by him on the 16^th October 2015. The respondent stated that in line where a grievance relates to an instruction issued by a supervisor/manager arising from a service imperative the employee is obliged to carry out the instruction (under protest if necessary).

It was also submitted that the claimant was afforded ample opportunity through numerous meetings and written communications process to put forward any exceptional circumstances arising for him which would justify the refusal to comply with the new work schedule.

Findings

Both parties made written and verbal submissions at the hearing

This case was scheduled for the 29^th November 2016 and it was adjourned all discussions between the parties take place to find a solution to the issue. It was referred back to the Service and heard on the 13^th February 2017 as no agreement could be reached.

I find that having examined all documentation and in particular the contract of employment where it states ”The standard weekly working hours of attendance at your grade are 37 hours per week. Your normal weekly working hours are 37 hours. Contracted hours which are less that the standard weekly working hours for your grade will be paid pro rata at the full-time equivalent. You will be required to work the agreed roster/on call arrangements advised to you by your line manager. Your normal schedule is liable to Change to meet the requirements of the service in accordance with the terms of the Public Service Agreement”

I find that the claimant took up the Centre Manager position in August 2015. I find that the claimant’s contract of employment is silent on his specific daily hours. I find that the claimant should have worked under protest if necessary in accordance with existing agreements. I find that the respondent has a necessity to have the manager available for the hours notified to the claimant for operational purposes.   I find that having carefully examined both submissions I am making the following .

Recommendation

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute. The claimant is allowed 3 months lead in period and that he complies with the request by the respondent to work 9 am to 5 pm on a daily basis

Dated: 13 June 2016

Workplace Relations Commission Adjudication Officer: Jim O'Connell