Complainant

Respondent

Anonymised Parties

Health Care Assistant

Health Care 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-00008442-001

29^th November   2016

SIPTU were in dispute with the Respondent in relation to the question of guaranteed weekly working hours for the Complainant.

SIPTU said they are seeking to have the Complainant’s weekly working hours regularised in line with the hours worked by her between 2011 and 2015, when her weekly working hours reduced from   12 – 14 to only 4.

SIPTU said that the Complainant had been employed as a Health Care Assistant (HCA) with the Respondent since 1^st April 2007 and her pay rate is €15.75c per hour – and she initially worked on a 39 hour per week basis.  

The Complainant’s weekly working hours were changed in May 2010, when upon her return to work from a period of sick leave, agreement was reached to reduce her hours to between 3 and 5 per week in an alternative role in the Out Patients Department (OPD) on a trial basis.   This continued for a short period of time, but then her weekly working hours gradually increased to between 12 and 15 per week for periods between 2011 and 2015.   The Complainant was quite happy with these additional hours and this also seemed to suit the needs of the employer.   This arrangement continued without any problem up to October 2015, when the Complainant’s weekly working hours were reduced to the 4 she currently works.   This change coincided with a change of Supervisor.

The Complainant verbally raised this issue with her Supervisor on a number of occasions but was not successful in getting a resolution.   The matter was raised by SIPTU on her behalf, but again no resolution was achieved   -   and therefore the matter was referred to the WRC.

SIPTU said that, as they always do when referring a matter to the WRC, they offered to re-engage but received no response to this offer.   Instead the Respondent wrote to WRC to say that local discussions had not been exhausted.   SIPTU said that following this they put forward a number of dates for meetings, but these were not acceptable to the Respondent. One date agreed was later withdrawn.     SIPTU said that a meeting did take place on Wednesday 15^th March 2017, and the Respondent argued that the Complainant average hours over the period from 2011 to 2015 were in and around 6 per week and not consistently 12 – 15 per week.  

SIPTU said they requested a copy of the records used to support this and these were provided.     SIPTU said that on viewing these records it can be seen that up to October 2015, the Complainant certainly worked more hours than she was contracted to do.   SIPTU said it is clear that there were additional working hours available to her over this period and in particular over the last 12 months of this period.

The Respondent told the Complainant that they cannot guarantee her additional hours for the future as there have been some changes in the area the Complainant worked in and that they say it is likely that her hours will fluctuate in the future, increasing and decreasing depending on need.

SIPTU said the Complainant needs some consistency and she believes that she should have her working hours increased to at least the 9 hours per week she was working just prior to the reduction to 4.  

SIPTU said that initially when the Complainant was moved to the OPD in 2010, she was the only one working in that area.   SIPTU said it now appears that some of her work and consequently her hours have been allocated to other staff.

SIPTU said the Complainant is of the view that her hours will most likely drop back to the minimum of 3 and if this were to happen she would find it very difficult financially.

SIPTU said they are therefore seeking a favourable recommendation that will provide that the Complainant’s contracted weekly working hours are increased in line with the number of weekly hours worked by her over the last 4 years.

SIPTU and the Complainant sought a favourable recommendation.

IBEC said that SIPTU, on behalf of the Complainant are “seeking to retain her 12 hours per week working arrangement that she feels has become her entitlement after 4 years”.

IBEC said that the Respondent disputes this claim in that the Complainant has no such entitlement to such working hours as per her terms and conditions of employment or otherwise.

IBEC said the Complainant commenced employment with the Respondent in April 2007, working as a Health Care Assistant (HCA), mainly in the Endoscopy Washing Area.   IBEC said she worked 39 hours per week.   IBEC said in June 2009 the Complainant went on an extended period of sick leave and subsequently returned to work in August 2010.   Following a number of Occupational Health (OH) Reports the Complainant was deemed not to be medically fit to return to the position that she previously held.

IBEC said that at that time the OH Reports recommended that the Complainant could only perform “appropriate work” and the management was to ascertain whether such accommodation existed or not.   The Respondent facilitated the Complainant by giving her work in the OPD.   Following a Meeting on 19^th November 2010, between the Complainant and the Respondent it was agreed that she would work between 3 and 5 hours per week, Monday to Friday, based on service needs.   A letter to that effect was issued to the Complainant on 22^nd November 2010.

IBEC said the Complainant’s terms and conditions of employment were agreed with her in November 2010, being 3-5 working hours per week or based on service needs.   IBEC said that since 2010 the Complainant’s weekly working hours have fluctuated on a weekly basis due to the fact that she is rostered for work on an “as needs basis”

IBEC said the following illustrates the average weekly hours worked by the Complainant over the period from 2010 to date:

                       Year                                             Average Weekly Hours                                                                                          .                   2010 (Aug – Dec) ………………   3 hours                                                                                             .                   2011 …………………………………. 4.5 hours                                                                                            .                   2012 …………………………………. 5.8 hours                                                                                             .                   2013 …………………………………. 6.2 hours                                                                                          .                   2014 …………………………………. 7.1 hours                                                                                         .                 2015 …………………………………. 9.7 hours                                                                                           .                   2016 …………………………………. 8.5 hours                                                                                            .                   2017 (Jan – Feb) ……………….  6.7 hours

IBEC said the very nature of the job performed by the Complainant dictates that the Respondent cannot guarantee in any given week how many hours will be available for the Complainant to work.    She is guaranteed to work the hours that are available agreed with her being 3 and 5 hours; however on occasion there may be more hours available in a given week that she can also avail of , these hours are only available at any given time based on the needs of the Respondent.

IBEC said that the nature of the employment arrangement agreed between the parties is akin to a flexible hours contract of employment in that the Complainant’s working hours in any given week are dictated by the specific needs of the Respondent Company at any given time.   IBEC said that at no point has the Respondent agreed to provide the Respondent with weekly working hours in excess of the 3 – 5 weekly hours agreed, nor will they be in any position in the foreseeable future to agree to anything more than the flexible basis upon which the employment contract operates.

The Respondent sought that the Adjudicator find and decide that the instant complaint/claim is not well founded and that they are acting in accordance with the terms and conditions as agreed with the Complainant when she returned to work following her ill-health in 2010 and also in accordance with the letter issued to her in November 2010.

The Respondent CEO gave detailed evidence into the current and ongoing position in relation to work in the OPD where the Complainant works.

I have carefully considered the evidence and submissions and I have concluded as follows;

I accept that the Complainant is entitled to some certainty in relation to the minimum number of weekly hours she can expect to work and be paid for (and indeed it is debateable if it worthwhile for any employee to only work 3 hours per week, especially if those hours are spread over 2 or more days).   I equally accept that it is not possible for the Respondent to guarantee the exact number of working hours available for the Complainant in light of the nature of work of the Out Patients Department (OPD).   However I do not accept that those positions a mutually irreconcilable or that with some flexibility on the part of both parties an arrangement cannot be made that is acceptable to both parties and that is workable in the OPD.

I have carefully examined the record of hours worked by the Complainant provided by the Respondent and contained at Page 4 of this document.   When the part years of 2010 (in which the Complainant was ‘easing’ back to wok after a long-term absence) and 2017 (where 2 months or less is included) the average weekly for the 6 full years is just under 6.5 (6.4666) per week   - and when the 4 most recent full years of 2103, 2014, 2015 and 2016 are examined the average weekly hours is just under 8 (7.875) hours per week. I believe that these figures represent a reasonable basis for calculating what hours of work are likely to be available for the Complainant in the OPD going forward.   However I accept that the Respondent is not in a position to guarantee these hours for each and every week going forward.

I now recommend the following as a full and final settlement of the matters in dispute.

The Respondent should agree that the complaint will be guaranteed an average minimum of 8 working hours per week.   This average should be based on 4 or 8 week cycles (or alternative ‘averaging’ period if agreed between the parties) i.e. the hours worked each week may be more or less than 8 on any individual week but will be no less than 8 hours per week in each ‘averaging’ period.   I further recommend that the Complainant be offered first option of all available work of the nature she performs in the OPD (obviously subject the maximum permitted by the Organisation of Working Time Act 1997).

For the avoidance of any doubt I wish to confirm that this recommendation is particular to the unique facts and circumstances of the instant case and it cannot be used or quoted by either party or any other party in any other case.