ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001610

Dispute for Resolution:

Date of Adjudication Hearing: 09/02/2017

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 13 of the Industrial Relations Act, 1969, 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.

Attendance at Hearing:

A Healthcare Assistant V A Public Body

Complainant’s Submission and Presentation:

The claimant commenced work as a relief Health Care Assistant in January 2005 becoming permanent in 2009 .She completed her qualification in Healthcare Support in 2012.

The respondent operated a “fixed roster –line” system populated on a seniority basis. The claimants Union entered into a collective agreement with the respondent in 2007 governing this practice. The claimant was keen to avail of this “fixed line roster “which ensured greater foreseeability of rostering .The claimant deputised on this roster on two occasions until she was accepted on the “fixed roster –line” in February 2013 on return from her training period .She mentioned that she had also been accepted previously onto the line but reverted to the variable roster when she discovered that she was covering for a lot of general operative work which was arduous.

In the interim, the arrangements surrounding the operation of the workplace roster became the subject of a collective agreement with the assistance of the Labour Relations Commission in March 2015. The allocated number of staff to the “fixed roster line “were reduced from 14 (2007 Agreement) to 11, who would effectively be red circled .The remaining 3 positions would be shared amongst   the remaining staff.

The claimant contended that she had been disadvantaged by the 2015 agreement as it failed to take account of her sustained placement amongst the 14 staff on the fixed line roster at the conclusion of the 2015 agreement and she was forced to revert to the “ unstructured roster “ which was variable and less predictable .

The claimant disputed the position from the outset. She challenged the contention that her sustained placement amongst the 14 staff on the fixed roster line was of insufficient length to protect her from internal redeployment from the roster. The claimant confirmed that she had worked the new roster from March 2015 and the hospital was currently trialling a 14 week rostered period.

The claimant sought compensation for her removal from the “ fixed roster line “ in March 2015 .She submitted that she had lost €14,000 in earnings based on the loss of earnings formula of the Public Service Agreement .The claimant submitted that her line manager at the time had incorporated a summary of her situation to the Occupational Health Physician on 13 March 2015 which referenced that she would be compensated for loss of earnings for her participation in the 2015 agreement of roster reversal .

Respondent’s Submission and Presentation:

The respondent disputed the claim and submitted that the Adjudicator should not investigate the claim as it comprehended a group of employees and was not an individual issue .They referenced S.13 (2) of the Industrial Relations Act 1969-2001.

The respondent submitted that it was fully within the remit of the employer to identify the appropriate work rosters that are fair, equitable and compatible with the service requirements at the Hospital.

The respondent outlined the background to the case .The respondent employed the claimant on a 39 hour week ,rostered over 7 days .The Hospital provides respite and palliative care for 40 patients.

The respondent submitted that the agreements reached with the Union comprehended the claimant based on a contractual clause of

“Your terms and conditions may be revised in accordance with agreements reached between the union representing your grade and the respondent.”

The respondent entered into a collective agreement with the Union in 2007. This outlined the basis of how access to night duty would work at the hospital through a fixed roster line and deputations. The claimant was not one of the named 14 staff members comprehended by the 2007 agreement.

The respondent entered into a subsequent collective agreement with the Union in March 2015 whereby the 11 remaining from the 14 named staff would remain in place. The three remaining positions would enter an equal access pool for all staff .The Hospital had just commenced a trial roster period from January 2017, the claimant was participating in this trial.

On March 12,2015 the respondent received an email from the claimant outlining a number of issues arising from the LRC talks of 10 March, 2015. Local engagement followed and information was provided in clarification for the claimant.

The Hospital became the site of a NERA inspection during 2015 and 2016 and rest periods were incorporated into rosters .This exercise has now concluded.

The respondent expressed a considerable unease at the path that this case has taken. The Union did not seek to reconvene the 2015 LRC forum. On 31 January 2017, the Union recorded agreement on a revised roster for support staff at the hospital ,there is some provision for a transfer of Sunday hours from rostered to non rostered staff .The agreed roster is applicable to support services staff whether such staff are members or otherwise of a Trade Union .

The respondent contended that it was not in a position to re-enter negotiations with individual staff members. The changes were requested by the staff themselves and agreement reached with the Union was conducted in a fair and transparent manner and in accordance with the nationally agreed Disputes Resolution Framework.

The respondent challenged the claim for compensation given that the Public Service Agreement loss of earnings referred to permanent loss and the claimant was in the process of building an increase into her premium earnings year on year .

Recommendation:

Section 13 of the Industrial Relations Act 1969 requires me to investigate the dispute and make recommendations to the parties.

.

Firstly, I need to explore my jurisdiction in this case. The Industrial Relations Act 1990 redefined “trade disputes” as:

Any dispute between employers and workers which is connected with the employment or non-employment, or the terms or conditions of, or affecting the employment of any person.

I find that the circumstances of the case allow me to investigate this claim.

This is an extremely sensitive case, on one hand there is a respondent keen to protect and build on the 2015 Collective Agreement, which to date has involved significant time, engagement and preparation to address the service needs of the Hospital through a modern and equitable roster.

On the claimants side, I am struck equally by her description of waiting patiently for 8 years before her name came up for consideration for a fixed roster line and the benefits that flowed from that in her working life , financial and social and predictability of both . We have here a real time consideration of individual v collective rights in a small employment location.

I was particularly keen to examine the circumstances on how the dilution of 14 to 11 staff on night duty actually occurred in March 2015 and just why it did not form the order of business before the ink dried on the agreement ?.

I am satisfied that the sustained service of the claimant placed her in a special category that warranted individual attention in the collective bargaining setting and that this individual attention has now found its way through to adjudication . I note that the agreement was not defined by a Public Service Agreement imperative and as such did not make its way to the adjudication service aligned to the PSA.

I have carefully considered the parties oral and written submissions. I find that I have no authority to interfere with a or vary a Collective Agreement which is bound by honour at such a sensitive time at the hospital. I found a clear energy from the respondent to move towards increased equitable access to premia at the hospital .That is in everyone’s interests.

I have been asked to explore the merits of the case and make a recommendation.

I investigated the dispute and I find that the profile of the three staff members who were placed on the fixed roster line and then removed had three different profiles. I am satisfied that due to her sustained service, additional time spent training and her ongoing commitment to the hospital that the claimant has a unique case amongst the profile of three . It is regrettable that the expectation of compensation as referenced by the then line manager in 2015 was not actioned.

I find that there are some merits to the claimants unique case ,she was in essence an established member of the 14 staff on nights which was amended by collective agreement aimed at maximising enhanced access to premia earnings for her colleagues . The explanation that her removal was precipitated by a two year rule was unfounded and anecdotal.

I find that she was in some way momentarily eclipsed by the 2015 agreement as I understand that the respondent is working with the Union towards increasing access to premia for all, in the short to medium term from which the claimant will benefit.

However, I find that the claimant is visibly demoralised by her experience of 2015 and her trust and confidence has clearly eroded. In an effort to recommend closure on the effect of the events of 2015, and restore respectful working relations, I recommend the following course of action to the parties.

1 That the claimant engages fully in the trial roster agreed in January 2017.

2 That as an exceptional measure and without precedential value, I recommend that the respondent pays the claimant a 9 month period of loss of earnings based on the differential in

A   9 months immediately   prior to the changeover and 9 months immediately post the changeover payable within 6 weeks of the date of this recommendation.

Or

B   An additional 39 hr leave week in each year of 2016, 2017 and 2018.

The choice to be at the behest of the claimant .This concludes my recommendation.

Patsy Doyle, Adjudicator.

Dated:   9^th May 2017