ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00011032

Parties:

Complaint(s):

Date of Adjudication Hearing: 31/01/2018

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 13 of the Industrial Relations Acts 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).

Background:

Summary of Complainant’s Case:

On behalf of our member, a Clinical Nurse Specialist at the X Hospital, the INMO requires that the employer upholds the contract of employment and adheres to the rules on the application of travel expenses within the National Financial Regulations (NFR 05).

NFR 05 clearly state in section 5.10.9 that;

The premises where the employee is based will be regarded as the official place of work for the employee where travel is an integral part of the job.

The Complainant worked as a Clinical Nurse Specialist in Diabetes at a Dublin Hospital when in January/February 2016 the Respondent advertised nationally for the position of a Clinical Nurse Specialist in Diabetes in X Region based at a specific Hospital location. This acute hospitals group encompasses 6 separate sites …three in the city of the Base location and three within variable distances up to approximately 30 miles further away from the Base location

The job advert identified that the successful post holder would deliver a service across the all of the sites but stated clearly that the post holder base is a specific Hospital.

The job specification similarly identified that the location of the post would be to deliver a service across all of the hospitals however it also clearly stated that the post holder base is in a specific Hospital.

The Complainant was the successful candidate in the recruitment process was issued with a contract of employment. The contract was signed by the parties in September 2016, within it in point number 4 it is stated that the initial assignment will be to X Hospital and that you may be required to work in any service area as the need arises.

The Complainant commenced her employment at X (the Base Hospital) on Nov 2016 and shortly afterwards was required to travel from her base to Y Hospital 2 to 3 days per week to deliver a clinical service. This resulted in her travelling from her base hospital to another service a greater distance away from the base hospital and her home. The Complainant in line with NFR 05 claimed mileage for same which were paid.

In May/June 2017 however the Respondent without notice ceased the payment of travel expenses. The Complainant raised the matter with local management who on enquiring with the Director of HR for the hospital group received instruction that as this is a group appointment that travel can only be paid outside of the rostered days in Y . It was further stated that, on a day when rostered in Y but have to travel to (the Base Hospital) for a meeting that travel may be claimed for that journey.

The INMO on behalf of the Complainant lodged a claim in June 2017 seeking that the hospital comply with the terms of the appointment process, the contract of employment and National Financial Regulations. The referral of the claim concluded under stage 2 of the Grievance Procedure where the Respondent allowed payment of travel expenses only up to 23rd August 2017. The basis for this decision as detailed in the Respondents correspondence is that the contract of employment states your initial assignment will be to University of (the Base Hospital) Hospital. You may be required to work in any service area as the need arises. The claim was therefore referred to Adjudication. There can be no ambiguity in respect of the requirements of the Respondent to comply with the job advert, job specification and in particular the contract of employment and that is to pay the Complainant for any travel expenses incurred when she has to work on official business away from the expressed base. The contract of employment stipulates the base/location for the position is the X Hospital (the Base Hospital), the Respondent cannot unilaterally alter or amend this term of the contract without the consent of The Complainant. It is required of the employer to comply with the agreed contract of employment.

The nature of the appointment was that the Complainant will deliver a service across all sites, as and when requested by the employer. This appointment was clear in stating that travel away from the base hospital is an integral part of the role and this is incorporated in the necessary travel from a (the Base Hospital) base to Y to deliver that service. The Respondent argument that the initial assignment was to (the Base Hospital) and that you may be required to work in any service area as the need arises does not convey any right for the Respondent withhold payment of legitimate travel expenses.

The NFR 05 details that the premises where the employee is based will be regarded at the official place of work for the employee where travel is an integral part of the job to see clients, etc. The National Financial Regulations must be complied with and The Complainant must be properly reimbursed for the additional travel to Y Hospital from the agreed normal place of work.

The contract of employment must be upheld, legitimate travel expenses must be paid when the Complainant travels from her base location in (the Base Hospital) to Y on official company business.

Summary of Respondent’s Case:

This Submission is in response to the complaint/dispute referral to the WRC under the above mentioned case reference.

The Complainant was employed as a “X” by the Respondent and commenced employment in November 2016. A copy of the Complainant’s signed contract was provided.    

The Complainant asserts that she was refused travel expenses in respect of the travel distance between (the Base Hospital) site, which she claims as her base place of employment and Y Hospital.

The Complainant asserts that according to her contract of employment that her base place of work was at the (the Base Hospital). Paragraph No. 4 of her contract sets out her “Location” which also includes provision for a requirement to “work in any service area as the need arises”.

In this case, the post of “X ” was for the Group with assignments covering both (the Base Hospital) and Y. Initially the Complainant was based in (the Base Hospital) to allow her to develop the role, but there was always a requirement to cover both Y and (the Base Hospital).   The Complainant subsequently invoked the Respondents Grievance Procedure regarding the refusal by them to reimburse for journeys from (the Base Hospital)to Y Hospital. The complaint was formally raised by way of letter dated 23rd June 2017 from her representative union the INMO. The Respondent issued a letter dated 10th July 2017 to the INMO advising the appropriate route under the Grievance Procedure (i.e. that the next stage should be heard the next Line Manager under Stage 2. The complaint was heard under Stage 2 on the 22nd August 2017.

The outcome/decision of the Stage 2 Grievance (referred to in further detail below) set out what the Respondent offered to the Complainant, which was payment of expenses up until the 23rd August 2017 as it was acknowledged that the Complainant’s initial assignment was (the Base Hospital) but that thereafter she would be based in Y for 5 days every fortnight, and University Hospital (the Base Hospital) for 5 days every fortnight. Any additional work attendances (outside of the scheduled 5 days) in Y would be reimbursed in regard to travel expenses.

A Grievance hearing was held on 22nd August 2017. This was a meeting under Stage 2 of the Grievance procedure. A letter of decision dated 23rd August 2017 issue to the Complainant setting out the position. In essence it referred to Section 4 of her contract which stated that “your initial assignment will be to (the Base Hospital) Hospital. You will be required to work in any service area as the need arises.” The Decision also agreed to facilitate the Complainant by paying travel expenses up to 23rd August 2017. The written Decision also made provision for an appeal i.e. she could appeal within 7 days.

The letter of Decision issued by email dated 24th August. The INMO subsequently reverted to the Respondent by a subsequent email dated 24th August 2017 referring the appeal to her.

The INMO issued a further email on the afternoon of the 11th September advising that as they had not heard back from her office, they had decided to refer the matter herein to the WRC on the basis that the timelines had been exhausted. The Respondent reverted to the INMO by email also dated 11th September to clarify that she had already responded to the Complainant directly by letter dated 11th Sept to confirm that an appeal had been set for 19th September which letter was addressed to the Complainant directly. Apparently the Complainant did not receive a copy of the Respondents letter dated the 11th September however and this was subsequently confirmed to the INMO by email following notification that the matter was referred to a WRC.

On receipt of the INMO email containing notice of referral to the WRC, the Respondent advised that that they would arrange to cancel the 19th September meeting. The Respondent submits that is premature to refer this case to the WRC at this early stage and that the matter should have proceeded up through the stages of the Grievance Procedure rather than a referral to the WRC in September 2017

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The Respondent asserts that the Complainant has not utilised the correct procedure by failing to exhaust the Grievance procured.

Furthermore and in the event that the WRC do not accept this argument, the Respondent submits that there is no basis to the complaint made against it.

Recommendation:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

It was accepted that the Appeal letter was not responded to within the timeframe allowed in the Respondents grievance procedure so the claim can proceed to recommendation.

The key facts in this case are as follows;

The Complainant applied for a job advert which stated a base location, X Hospital.

The Complainant was offered the job with the following relevant terms “The post holder will be based in X Hospital” and the group comprises a number of named hospitals.

The contract was silent as to travel expenses. The Complainant was paid travel expenses for about 11 months after her initial employment when the Respondent stopped paying mileage beyond the base location.

The Complainant now alternates between two locations on a two week roster. The extra distance for the non base location is approximately 30 miles more from her home.

The job advert and contract of employment gave the impression of a base and the need to go to other locations. The situation regarding expenses beyond the base was not clarified in the contract of employment. That was the responsibility of the Respondent to make that clear in both the advert and the contract of employment if it was their intention not to pay expenses to the various locations. It did not and therefore it left the situation ambiguous and further contributed the that ambiguity by paying the Complainant the extra mileage for about 11 months.

Having considered NFR -05 I am not sure the Complainants situation is actually covered specifically in those regulations.

I recommend the following, strictly on a red circled basis to the Complainant due to the unique circumstances of her advert and contractual situation, and if accepted by both parties, this specific outcome is not to be used as a precedent in any way in any other claims or forums by the Complainants Representative and forms no precedent for any other member of the Respondents staff.

The Complainants Base is to be defined for each six month period as the place she spends the majority of her time (on a look back basis) commencing January 1st 2018. Expenses beyond that determined base to locations that involve greater travel mileage than that base should be paid. No mileage for any travel to be paid for locations in the same City as the Base location. If the time in two locations is equal during the six month period, then the Complainant should receive mileage to and return to the location furthest from the Base specified in the contract.

If the Complainant has to travel to a meeting/work in another hospital from the determined base which involves additional mileage than returning directly home from the determined base, then that additional mileage should be paid but only the additional mileage incurred compared to had she gone directly home from the determined base.

All expense for visits to locations beyond her designated base in the contract of employment should be paid (on a direct additional mileage basis and not using the above formula) and backdated since the expenses stopped up to December 31st 2017.

Dated:   14th February 2018

Workplace Relations Commission Adjudication Officer: Peter O'Brien

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