ADJ-00004528

Complainant

Respondent

Anonymised Parties

A Nurse

A Nursing Home

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-00006544-001

19/08/2016

The Complainant a Deputy Nurse in Charge worked with the Respondent for 22 years. The Complainant maintains that she was providing an on call service outside of her normal working hours for the previous 13 years but despite making representations to be paid an allowance she never received this allowance. She advised the call out rate she should have received was €37.49 per day.

The Complainant retired in March 2016 without receiving the allowance whilst management and the Respondent had acknowledged since 2007 that she was doing this work without compensation but despite these commitments management failed to address the matter.

The Complainant was the Deputy Nurse in Charge and worked with the Respondent for 22 years. The Complainant maintained that she was rostered for call out and standby arrangements since 2007. Despite making many representations to the Respondent over the years, and understanding that she had been given commitments that she would be compensated for the work, she never received payment for the on call and standby duties before her retirement in March 2016.

The Complainant maintained that as a consequence she was due €78,000 in back pay. In an earlier submission to the Respondent on 14^th March 2016 she calculated her compensation for the on call and standby allowance amounted to €49,000 (based on €79 per week for 48 weeks a year over 13 years which). She also submitted other alternatives and allowances available to Nurses in other organisations and asked that the Respondent consider her case.

The Complainant maintained that from 2007 the Respondent was aware that she was completing the on call and stand by duties, and where she made representations to the then HR manager who advised she should be appropriately compensated. However the Chainman and Committee had indicated an unwillingness to pay the allowance. The then HR manager advised she would continue to pursue the matter but she left her post in 2010 without the matter being resolved.

Subsequently a replacement HR manager advised the Complainant that he would work on the matter and where he endeavoured to have it sorted. The Complainant submitted correspondence where arguments were made on her behalf.   In these documents her work practices were referred to as being unfair and proposals were made to have her hours reduced by appointing a Senior Nurse to work alongside her. It was also argued in 2013 by the then HR manager     that a consolidated structure needed to be put in place to address the callouts. However unfortunately he passed away in 2015 and the matter remained unresolved. 

The Complainant contended that in the intervening period an on-call allowance and standby payment was agreed for maintenance men working for the Respondent. Despite this the Complainant maintained that the Respondent continued to refuse to compensate the Complainant for her on call-call out commitment. 

The Complainant again raised her concerns the current HR manager in March 2016 before her retirement. However the HR manager did not return any of her calls before she retired. The matter was then raised by the Union who again sought to have the issues resolved in what they referred to as a decent and just way. However the Respondent would not accede to the Complainant's claim. On that basis the dispute was raised to the WRC for a recommendation. 

The complainant argued that as the HR manager from 2010 was supportive of the fact she would receive payment she therefore had and anticipation that the payment would be forthcoming. She also argued that the Respondent was aware that she was aggrieved having raised her grievance with a succession of HR managers. 

The Complaint argued that it is normal practice within the health care services she provided, and through various precedents that are in place, that she would be entitled to be compensated for her on call and standby duties. She advised that the HSE call out rate would have provided the complainant with a payment of €46,787 for the 13 years she provided the service. 

The complainant also argued that Organisation of Working Time Act 1997 states that time during which the worker is working at the employers disposal and carrying out his activities are duties and are deemed as working time. The Complaint further argued that she met this definition as would be confirmed by reference to the Tyco Case (C-266/14). 

The Complainant argued that the handling of the situation by the Respondent was disgraceful and she was seeking to be compensated for providing the service which she feels is merited under the circumstances. 

The Respondent argued that the Complainant only submitted her request for payment of an on-call service two days before her retirement. The Respondent advised that this claim was for 13 years of her employment and the submission was made by email. 

The Respondent maintained that the Complainant had previously mentioned the issue in a conversation to the current HR manager but had failed to pursue the claim at that time. The Respondent further argued that the Complainant did not avail of the Respondent’s Grievance Procedure. The Respondent also maintained that the Complainant was never instructed nor requested to provide an on-call service. It submitted that there is a Person in Charge employed by the Respondent who is responsible for providing out of hours cover, and there was also an external Doctor on call. The respondent also maintained that there is no on-call allowance provided for in the complainant's contract of employment. 

On that basis the respondent maintained there was no entitlement for the allowance and it was not in a position to accede to the Complainant’s request which it argued was not merited.

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. In accordance with Section 13 of the Industrial Relations Act 1969 I am entitled to investigate the matter and make a recommendation to the parties setting forth my opinion on the merits of the dispute.

Having considered the matters and representations made by the parties I am satisfied that the Complainant had been working in a standby and on-call capacity for some years. The matter of her compensation for this work was subject to discussion and correspondence by a number of HR managers over the years. Records submitted to the hearing by the Complainant shows that correspondence existed from at least 2013 in relation to the on call, where the practices were deemed to be unfair and needed to be consolidated.   Accordingly the Complainant had an expectation that the matter was to be addressed at some stage.

Whilst it is acknowledged that there was no formal written grievance raised by the Complainant until two days before her retirement, it is clear that she had raised the matter a number of times over the years with different HR Managers. It is also evident that the Complainant did raise the matter informally to the current Hr Manager, and subsequently in writing by an email to him on 14^th March 2016. The Respondent’s Grievance Procedures advises that as a first step a grievance should be approached in an informal manner between the parties. It also states that where a complaint is not resolved through the informal procedure route, a formal complaint should be made to the HR Manager in writing. I am therefore satisfied that contrary to the Respondent’s assertions, a grievance was raised by the Complainant, informally over the years, informally again more recently to the current HR manager who did not respond to the grievance, and then formally by email to the HR Manager just before her retirement. The claim was not responded to at the time but was subsequently rejected by the Respondent following representation made by the Complainant’s Union.

A review of the Complainant’s contract of employment, signed by the Complainant on 19^th July 2009 after she was promoted to the position of Senior Staff Nurse on 21^st January 2009, indicates an hourly rate of pay of €21 per hour, where it mentions a premium rate will be paid where appropriate, and where overtime is to be taken in the form of time in lieu. A further note on the contract dated 23^rd March 2010 records that the hours of work are 37.5 per week. Therefore the contract entitles the Complainant to compensation, either through a premium rate or by time in lieu if she worked overtime.

In the absence of actual records regarding the amount of times the Complainant was on standby, on call, or actually attended for work over her contracted 37.5 hours per week it is difficult to ascertain what balance of time she would be due. She has contended she would have possibly, on average, attended six call outs per month, not allowing for the on call time.

On the other hand the Respondent advised that a Person in Charge was appointed and a Doctor was on call and therefore it disputed the fact that the Complainant was on call.

In her submission the Complainant referred to the Tyco case which was subject to a Court of Justice of the European Union (CJEU) ruling. The Tyco decision applies to workers who do not have a fixed place of work and are required by their employers to travel to service clients. I therefore do not find the case relevant with regard to the complaint herein.

In summary I find that the contemporaneous evidence presented at the hearing supports the Complainant’s assertion that she was in fact working extra hours, she was not in receipt of compensation for these hours, she was available to take calls out of hours.   The evidence also supports that previous HR Managers had attempted to seek compensation for the Complainant where the situation was described as unfair, and where the Respondent had identified it cannot continue to depend on one person doing this service for nothing. It is therefore evident that the Complaionant was required to work hours outside her contracted hours and was not being compensated for this work.

As the complaint remains unresolved, I recommend the following:

1. That the Respondent is to conduct a review of the typical additional hours the Complainant would have attended work on call (she maintains approximately 6 hours a month) and whether she received time in lieu for these hours.   If she did not receive the overtime compensation (as per her contract), I recommend that the Complainant be paid over time for the hours she worked over her 37.5 hours each week.   In the absence of such records being available, and as the Complainant identified that she may have on average attended a six calls a month, I recommend she be compensated 1.5 hours overtime per call, where the overtime rate should be 1.5 times her normal hourly rate. For the avoidance of doubt this would amount to €47.25 per week. 
2. As the Respondent maintains it is typical for Nurses in her position who are on call to receive an on call allowance I also recommend that the Respondent be paid an on call allowance for the weeks that she was responding to calls. I recommend that weeks where she was on annual leave, sick leave or other absences should not be reckonable for the on-call allowance. The on-call allowance should be at the same percentage rates to the call out and standby agreement for maintenance staff that was made in 2013. 
3. That the calculations for recommendations 1 and 2 above are to be backdated by 36 months from the date of retirement of the Complainant. 
4. That the exercise recommended above be competed within four weeks of the date of issue of this recommendation, and that where the Complainant is due compensation that such compensation be made to the Complainant without undue delay.

Non payment of shift allowance; non payment of on call allowance