ADJ-00003739

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003739

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

Date of Adjudication Hearing: 13/10/2016

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and or Section 13 of the Industrial Relations Act, 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).

Attendance at Hearing:

Complainant’s Submission and Presentation:

Summary of Respondent’s Submission and Presentation:

The Complainant was on permanent Night Duty from August 2004 until April 2016 when he transferred to an alternative work location and commenced a new position that required a day work element in his roster.

In his previous location three staff members had agreed to a permanent arrangement that they would swap their night duty with him. These three staff members were transferred/promoted and the swaps were no longer available. In addition, due to service provisions/needs the Complainant was transferred to another unit and put on a normal roster pattern.

The grade of Permanent Night Duty Nurse does not exist and the offers to the complaint in the local negotiations went a very long way to facilitating his requirements. Any loss of earnings will be compensated by the standard formula.

The Complainant has utilised all three levels of the internal grievance procedure. The final appeal hearing did not find in his favour. The Appeal process considered all the relevant provision of the Public Service Agreements and the Haddington Road Agreement. Accordingly, the claim should be dismissed.

Decision:

Section 41(4) of the Workplace Relations Act 2015 and or Section 13 of the Industrial Relations Act, 1969 require that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Issues for Decision:

Has the Complainant a legitimate expectation to remain on a permanent Night Duty work

arrangement?

Legislation involved and requirements of legislation:

Industrial Relations Act, 1969

Decision:

The facts of the case are that the Complainant has been on permanent night duty for some 12 years, that a colleague a Ms G had her Appeal upheld (to remain on permanent nights) in June 2016 (after 15 and a half years on nights) and that extensive local discussions to seek to facilitate the Complainant have taken place.

The final Stage Three appeal hearing finding (1^st June 2016) focused on the move to the new Unit and the roster in operation there. It was noted that the new Unit would have swap arrangements /opportunities to facilitate night work for the Complainant “in so far as is reasonably practicable”.

In relation to the physical transfer I agree with the Appeal Finding.

In relation to the night Duty issue I recognise that after 12 years of permanent nights the Complainant has built his life and domestic arrangements around this. It was explained that the night duty roster allows him to provide care for his elderly mother.

The proposal put forward by letter from the PNA on the 20^th January 2016 could form the basis of an agreement between the parties.

This provided that the Complainant would be marked for nights for 12/14 weeks of the year which together with his annual leave and the weeks he is required to return to day duty for training would only leave 7 weeks where he would be reliant on “Swaps”.

The PNA suggested that if the Complainant was given a “letter of comfort” in regard to night duty the Complainant would increase his day commitments to four weeks, two weeks for training and two weeks for ordinary work.

It is unrealistic to ask any the Respondent’s Operational Manager for a letter of comfort in relation to a permanent Night Duty arrangement. The Respondent’s Operational climate simply does not allow for this in a very fluid changing Operational and Fiscal environment. In addition, the operational need is to have a rotating roster days and nights for all staff. However, this can be adjusted in exceptional circumstances for specific local needs and by agreement with the relevant trade Union.

I recommend as follows in relation to Night Duty.

By Custom and Practice the Complainant has established a legitimate expectation to a roster pattern that maximised his night duty.

This should be continued (but subject to the Complainant agreeing to two weeks’ day work and two weeks’ day work training as part of the roster).

If the necessary “swaps” are not forthcoming from colleagues the local management in agreement with the PNA should take what ever steps are necessary to ensure that the Complainant is not disadvantaged in his access to Night Duty.

This Recommendation is also subject to the proviso that the PNA (on behalf of the Complainant) and local Management review the arrangement on an annual basis.

Should the Complainant’s underlying domestic rational (care of his mother) for extensive Night Duty change the Complainant should revert to a normal rotating Day/night Roster.

The PNA and the Local Management to accept that the night duty arrangement is personal to the Complainant in this case (in effect a historical legacy) and that the concept of a permanent duty pattern be it days or nights is not appropriate for the operation of the services being provided in the Hospital Units under consideration in this case.

Dated:   1^st February 2017