LCR21853

• “Having considered the substantial evidence provided in this claim I have reached the following conclusions;
  
  The claim, whilst taken by the Complainant on its own merits, has collective implications for the contract and terms of employment for all Consultants in the Respondents employment. However, in line with recent Labour Court decisions I will proceed to make a recommendation on the claim.
  
  The Complainant is paid for both being on call and out of call duties. The core element of this claim is that he maintained he was on a 1:1 roster and as such is entitled to significant rest periods which if not taken then he is entitled to seek compensation instead.
  
  The claim relates to a number of years and involves a substantial financial claim.
  
  In order to prove his claim the Complainant had to show that he was legally entitled to be paid the amount claimed, that he was on a 1:1 roster, that he was not obliged to provide the services provided as per his contract of employment, that the claim is not cost increasing per National Agreements and that the Complainant had exhausted the internal grievance procedure to address his claim. None of the above factors weigh for the Complainant.
  
  The Complainant has not established he was on a 1:1 roster.
  
  The Complainant has been paid for all on call hours that he submitted for payment to the Respondent.
  
  The Complainant, as a senior member of staff and as obliged under his contract and his own insurance advice, must provide reasonable cover to staff who have queries or attend a medical emergency as required in his field of expertise.
  
  The Complainant did not exhaust the internal grievance procedure.
  
  The claim is of a cost increasing nature and therefore prohibited by the National Agreements. The “duties” mentioned as additional come within the general scope of the Public Service Stability Agreements 2103-2018 I see no merit in making a recommendation of compensation for the Complainant in this case as his case could be replicated many times over in the Public Service.
  
  Specifically Section 3 of the Agreement states “efficiencies need to be maximised and productivity in the use of resources increased through revised work practices and other initiatives”. It also states in Section 3.3.2 “consolidate and reorganise work in line with organisational needs”. Therefore, I can see no way to set a precedent in this case for what is in essence a claim to be paid more for doing what he has been substantially paid in income to date in his current role and which has been covered by national agreements on flexibility and revised work practices.
  
  
  
  
  The claims were also not presented formally or in a timely manner to the Respondent as they occurred.
  
  The Complainant entered into a new agreement willingly with the Respondent on Jan 4th 2016 which clearly sets out that the current compliant is not valid, and as a minimum certainly from that date onwards.
  
  In effect, the Complainant sought and received payment for his on call and call out hours. He now is attempting to seek further compensation for being available for infrequent and medical calls when he was on vacation or unavailable.
  
  The Complainant has not established a prima facie case to be paid, due to all of the above circumstances and I see no justification in making a recommendation of compensation in favour of the Complainant, for all of the above reasons.”
  

It is the Union’s contention that the Worker should be classified as being on a 1:1 roster as he is the only specialist in his field working in the location. The fact that he has not been classified has resulted in a significant loss of income to him, in particular he has not received compensatory rest since April 2014. Prior to April 2014 the Worker was classified as being on a 1:1 roster and received the appropriate payments. It is the Union’s contention that the reconfiguration of Acute services for ENT in the area did not impact on the need for him to be available on call and that he frequently gets calls which he had to respond to outside of his normal rostered hours.

The Employer’s position is that following the re configuration in 2014 the Employer entered into a local ring-fenced agreement with the Worker to provide an on-call rota equivalent to a 1:5 rota. This was as well as a revised Policy and Procedure for the management of ENT emergencies in the region. The Employer therefore no longer requires the Worker to work a 1:1 roster. It is the Employer’s contention that the Worker is being paid for all out of hours work where applicable. The Employer does not dispute that following on from the restructuring in 2014 the Worker had a loss of €36,000 per annum.

The Court having carefully read the submissions of the parties and listened to the oral submissions on the day note that the Employer by way of update on 25^thApril 2017 advised the Union that should the Worker be eligible for compensation for the loss of earnings associated with his previous on-call arrangement the Employer would arrange for the appropriate compensation to be applied in line with the Public Service Agreements. It is not disputed that the Worker suffered a loss of €36,000 on foot of the reconfiguration in 2014. The Court recommends that he be compensated for that loss in line with the Public Service Agreement.

The Court so recommends.

Signed on behalf of the Labour Court



Louise O'Donnell
CR______________________
11 December, 2018Deputy Chairman



NOTE

Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.