ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00007116
Parties:
| Complainant | Respondent |
Anonymised Parties | A Clinical Nurse Manager | A Hospital |
Complaint:
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-00009670-001 | 13/02/2017 |
Date of Adjudication Hearing: 05/07/2017
Workplace Relations Commission Adjudication Officer: Pat Brady
Procedure:
In accordance with Section 13 of the Industrial Relations Acts 1969 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint
Background:
This is a claim for loss of earnings following changes to the roster in the hospital. The changes resulted in a reduction in the number of Sundays required to be worked and, as a consequence, the opportunity for premium earnings. |
Summary of Complainant’s Case:
The respondent hospital reduced its admissions activity on Sundays as a result which the requirement for staff cover on a Sunday was reduced. This led in 2013 to changes in the rostering arrangement resulting in a reduction in the number of hours worked which attract premium payments. The hours previously worked in the premium periods were rostered at other times. The respondent has a collective agreement with its unions on foot of public service pay agreements, specifically the ‘Croke Park’ Agreement (CPA) and the Haddington Road Agreement (HRA). that compensation arises and is payable for such losses. The situation is complicated by a dispute over representation rights which contributed to a delay in processing of the matter. It has also been delayed as a result of the complainant’s absence on maternity leave. The complainant has declined the opportunity to access premium working elsewhere in the hospital as her skills would have required updating in order to enable her to practise safely and in line with her professional obligations. The union estimates the complainant as being at a loss of just under one hundred and fifty two hours (151.85) ad the CPA/HRA provide for compensation at the rate of one and a half times the loss. The union also submits that the respondent has never before contested the application of the CPA formula and has applied it as appropriate on previous occasions. |
Summary of Respondent’s Case:
Respondent The respondent submits that there is a generalised right to deploy its employees in accordance with their contract of employment which specified that ‘staff are not appointed to any particular area, or shift, within there department on a permanent basis. You will be required to be completely flexible in your position and be available and agreeable to do work in other locations within you department or elsewhere when required by the employer. There is no contractual entitlement to any premium hours and at all times the overriding consideration is the needs of patients and their care. The respondent has facilitated the complainant with an element of premium hours working and she was offered the opportunity to work premium earning shifts elsewhere in the hospital. In addition opportunities are also made available for enhanced earnings which the complainant has refused to avail of. The respondent draws attention to a decision of the Labour Court (LCR 13853) which provides that, in respect of claims for loss of earnings; ‘All available opportunities to offset or mitigate potential loss should be fully availed of and taken into account.’ The respondent also questions the delay in taking the complaint; noting that the matter was not raised with the respondent until April 2015. The respondent’s position is that no compensation is due but in any event disputes the complainant’s calculation of the losses which it puts at 85.75 hours based on the actual reduction in the twelve months preceding the change as has been decided by the Labour Court in decisions LCR 19995 and 20046. |
Findings and Conclusions:
The net point here is the applicability to the current claim of established public service compensation principles which have been endorsed and approved by the Labour Court.
The respondent raised two issues; one, the delay in processing the claim, and secondly the failure by the complainant to avail of opportunities to undertake premium earning opportunities elsewhere in the hospital.
In respect of the former, while the delay has been unusual, it has not been untoward having regard to the circumstances, including the complainant’s absence on maternity leave.
In respect of the latter, the complainant has argued that her unwillingness to accept the offer of alternative working was based on considerations related to safe professional practise, for which she has an independent professional responsibility to the regulatory body.
Likewise the Labour Court authority referred to above was very much plucked from context.
The Court was recommending to the parties in that case that they should undertake an exercise to actually establish what the losses might be into a future period, and after twelve months to review the losses on the basis of the then available information.
The Court followed that recommendation with the quotation above relating to availing of all opportunities to offset or mitigate loss, and it seems from the context, on a collective basis. The parties to the claim being addressed by the Court were three trade unions and the HSE.
By no means did this establish a generalised pre-condition to mitigate loss for such individual claims as the current one, and in any event, even if that were a good rule of thumb I consider that no fault attaches to the current complainant for any failure to do so.
As is ever the way, such cases turn on their particular facts.
For those two reasons I can find no reason to deny the complainant the benefits of the relevant public service agreements and I so recommend on the basis as calculated by the respondent.
Recommendation:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.]
I uphold complaint CA-0009670-001 and recommend that the complainant be compensated for her losses as calculated by the respondent at 88.5 hours on the basis of one and a half times those losses in line with the public service agreement. |
Dated: 11/09/17
Workplace Relations Commission Adjudication Officer: Pat Brady
Key Words:
Public Service agreement, loss of earnings |