Complainant

Respondent

Anonymised Parties

Complainant 

Respondent 

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-00008717-001

12/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00008722-001

12/12/2016

Mr. A McK is employed with the Respondent since 19th March 1999 as a Porter.

Mr. DL is employed with the Respondent since 1st March 2000 as a Porter.

Both Complainants allege that the Respondent commenced a “separation of roles” process under which the Respondent reassigned the role of Porter and duties fulfilled by the Complainants to other employees and the Respondent reassigned the Complainants to alternative roles without their consent. They filed a complaint with the WRC under section 13 of the Industrial Relations Act 1969 on the 12th September 2016.  

Reference Number: CA00008717-001 (Complaint in relation to A McK)

TheComplainant is an employee of the Respondent. He entered into a contract of employment in or about March 2000. He has been in continuous employment with the Respondent since that date.

The Complainant has at all times been employed as a Porter in LC Hospital.   His job title, since 2012 has been “Multi-Task Attendant”. The reason why that specific job title was given to the Complainant is not entirely clear, but it is common case that the Complainant has always carried out portering duties in LC Hospital. The Complainant is one of four staff described as a “Multi-task Attendant” in their contracts of employment. (Prior to the change of title in 2012, the Complainant had been described as an “Attendant” in his contract of employment).

Four other staff employed in LC Hospital are described in their contract of employment as a “Porter”. These staff, however, have only ever performed portering duties as relief to the four “Multi-task Attendants”. The job titles as they appear in the respective contracts of employment are misleading and inaccurate. The Respondent understands that this is so.

A recent re-organisation of LC Hospital has caused theComplainant the loss of his role as “Porter” and the Respondent has purported to assign him to other duties. The Complainant contends that his removal from the role of Porter is unlawful and in breach of contract.

The Respondent disputes that it has acted unlawfully and purports to rely upon a Collective Agreement signed off with management and unions in LC Hospital.

The parties have agreed to refer the matter to the WRC and by letter dated 7th March 2017 the Respondent has agreed to honour the outcome of the Commission’s Adjudication.

It is a matter of considerable concern to the Complainant that the Respondent has proceeded with the re-organisation of portering duties in the hospital in advance of an adjudication by the WRC. By letter dated the 24th January 2017 the Respondent’s representative, (Ms. MK Mc), advised that she was hopeful that the WRC hearing would be held before the introduction of the separation of roles but, if not, the Respondent would review matters. The promised review did not take place and the purported re-allocation of portering duties has taken place.

Background

There are a number of dates which are significant in terms of the chronology of this dispute.

In 2003, pursuant to Labour Court Recommendation LCR17632, an Agreement for Support Staff in the organisation was agreed. The agreement was entitled “Recognising and Respecting the Role”. The agreement was aimed at contributing to the ongoing development of support staff and the services they are responsible for providing. The agreement provided, inter alla, for pay scales and pay grades.

Four bands or ranks of staff were provided for by the agreement:

·         Band 1: Supervisors (Catering, household and portering supervisors)

·         Band 2: Specialists 1 (Lab Aides/CSSD/Family Support Workers)

·         Band 3: Specialists 2 (Care/Specialist Staff/Security)

·         Band 4: Specialists 3 (Catering Assistants/Porters/Household/Home Help/Others)

The Complainant was initially assessed within Band 4. This became a matter of dispute. The dispute arose because the Complainant (and other affected staff) argued that there was an element of patient care to the Complainant’s duties. The point made was that this element of patient care was such as to warrant that the Complainant should be assessed as a Band 3 employee.

In or about April 2010 application was made to the Labour Court on behalf of the Complainant and the other affected workers. Following upon that application, with effect from the 24th day of January 2012, there was a change to the Complainant’s Terms and Conditions. The Complainant was moved from Band 4 to Band 3.

Of significance to this application is that at the time the Complainant moved from Band 4 to Band 3 that his duties did not change (at all).   The change of band was instead an acknowledgment that the Complainant’s job of “Porter” included a patient care element which warranted banding at Band 3, instead of Band 4.   The review of the Complainant’s duties was conducted within the framework of the “Recognising and Respecting the Role” agreement.

The Respondent contends that it reviewed contracts of employment some time in 2016. It contends that the “Recognising and Respecting the Role” process was ongoing at that time. It is submitted that this is patently untrue and that the “Recognising and Respecting the Role” process had been completed back in 2012.

It is notable that as part of the “Recognising and Respecting the Role” process staff were assigned a “correct grade description”. The Complainant and his co-complainant were assigned a grade – specifically “portering services”. It is not known hat grade description was given to the four members of staff described on their contract as “Porters”.

What is of critical significance to this application is that at the time the Complainant moved from Band 4 to Band 3 his job title was changed to “Multi-task Attendant”.

As set out earlier, it is not clear why this job title was chosen but it is clear that the Complainant was a porter when he was assessed at Band 4 and still a porter when he moved to Band 3.

At a later date in 2012, the status of the LC Hospital was downgraded.   Following that downgrading of the hospital there was a reconfiguration of staff in the hospital. Until that point seven people had carried out portering duties in the hospital.   Following reconfiguration there was a need for only five porters.

At the time of the reconfiguration, the Complainant (and his Co-Complainant) were assigned one each of those five porters’ jobs. They were assigned the job on the basis of seniority. Two staff who had worked as porters in LC Hospital ceased to perform porter’s duties at the hospital.

What the Commission is asked to pay specific regard to is that each of the four people who in 2017 were assigned portering duties in LC Hospital (at the expense of the Complainant) were at the relevant time employed in the LC Hospital. At that time, each of those four people was described as a “Porter” on their contract of employment and yet none of those four people were each deemed eligible for one of the five porter’s jobs. The reason why they were ineligible is that none of those four people did portering work, save as relief to the actual porters in the hospital. In terms of seniority each of the four staff members ranked behind those assigned portering duties in the LC Hospital and behind those who were stripped of portering duties at that time.

The Respondent is asked to provide some explanation as to why being described as a “Porter” on one’s contract of employment was irrelevant in 2012, but was the primary consideration in 2016/2017.

In or about May 2016 a process known as “Separation of Roles” was introduced by the Respondent in LC Hospital. Pursuant to that process it was identified that the LC Hospital had a need for six porters - “5 in the house and 1.25 for relief”.

Prior to May 2016 the Complainant and three other men performed porter’s duties in LC Hospital. The four men in question are BM, SD, AMcK and the Complainant. Each of these four men were described as a “Multi-task Attendant” on their contract of employment. However, notwithstanding that job description, each of the men were assigned portering duties in the LC Hospital. These four men were the same men who had been assigned porter’s duties at the time of the reconfiguration of LC Hospital in 2012.

The four other staff members described as a “Porter” in their contracts of employment are KC, PK, SC and BG. None of these four men have, prior to the “Separation of Roles”, ever worked as porters in LC Hospital, save on a relief basis. It is also to be noted that each of these four name individuals are employed as Band 4 staff.

SC was the UNITE representative and PK was the SIPTU representative in talks about the “Separation of Roles”. The Complainant has concerns about what appears to be a clear conflict of interest.

In the context of the Separation of Roles” the Respondent asserts that it is obliged to assign portering duties to employees described as “Porters” in their contract of employment, ahead of those people who actually did portering work in LC Hospital. The rationale for this decision is not obvious. Indeed, it is submitted that the decision is not rational.

The Respondent contends that classification as a “Porter” depends not on one’s actual role but rather on one’s job title. It need hardly be highlighted that the 2003 agreement was not entitled “Recognising and Respecting the Job Title” nor was the 2016 process known as “Separation of Job Titles”. The point is made again that the description of “Porter” in a contract of employment was deemed irrelevant in 2012 when the number of porters in LC Hospital was reduced.

It is submitted as unarguable that the substance, not the description, of one’s employment is what is important. Indeed the 2003 process of “Recognising and Respecting the Role” was in large part aimed at identifying exactly what roles staff within the organisation carried out and recognising the importance of the work done. Placing primacy on a job title flies in the face of that aim.

There is indeed an essential contradiction in the Respondent’s position.   It denies that the Complainant is entitled to a porter’s job on the basis of his seniority (he was employed before any of the four people described as “Porter” in their contract of employment) but has in fact allocated the porters’ jobs in the hospital on the basis of seniority.

The logic in that position is difficult to understand but I shall try and explain. The Respondent has compiled a list of six people to be allocated the porter’s jobs in the LC Hospital. The four people described as “Porter” on their contracts of employment were deemed to have “first refusal” on those jobs. The remaining two positions on the list of six went to the most senior of the “Multi-task Attendants”. However, after that list of six porters had been compiled the actual allocation of the porters jobs was done on the basis of seniority. As a consequence, the two people who were the fifth and sixth people entitled to apply for the job of porter, became numbers one and two on the actual list of porters in the hospital.

It is submitted that the Respondent’s reliance on a “Collective Agreement” is fundamentally flawed. It was specifically contended by MK Mc (when the case was part heard by the Commission on the 15 June 2017) that there was agreement in place that the first allocation of porters jobs would go to those with “Porter” on their contract of employment. As one understood Ms K Mc’s evidence, it was contended that the Complainant was a party to that agreement. This is not correct.

Three points are worth highlighting in the context of Ms K Mc contention that a binding agreement is in place. Firstly, neither the Complainant’s manager, M Mc, nor two of the union representatives involved in negotiations, BM and SC were prepared to sign off on the purported agreement.

Secondly, by letters dated the 24th October 2016 M K Mc stated that if resolution was not reached through the consultative process under the Consultation and Information Agreement that she would refer to WRC.   Clearly, she did not refer the matter to the WRC and has left that duty to these Complainants.

Thirdly, documentation furnished to the Commission by Ms K MC on the 15th June specifically gainsays that contention that staff are bound by collective agreements and there is a right reserved to them to have the matter determined through appropriate industrial relations channels.

The Complainant has had sight of the minutes of relevant meetings with staff. The first is dated 17th June 2016. At that meeting, Ms. K Mc advised staff that “if they have multi-task attendant/porter on their contract and there isn’t enough portering work they can be assigned to another area”. She later said that she could not “guarantee all… porters will remain in portering unless they have a contract with porter on it”.

In a minute of a meeting on the 30th September 2016, Ms. K Mc told staff that “if somebody has porter on their contract, they will have a portering role”.

In a minute of a meeting on the 22nd November 2016, Ms. K Mc advised those present that “staff who are not in unions are bound by a collective agreement”.

The Respondent may have minutes of other meetings which pre-date those of 17th June and 30th September 2016, but what is clear is that a decision to give porters’ jobs to those with “Porter” on their contracts had been made before staff were consulted. This decision was from the outset presented as a fait accompli to the Complainant and other staff.

The Commission should be aware of the financial implications for the Complainant if this removal from the porter’s roster in LC Hospital is permitted to stand. Whilst there is provision by the Respondent for 1 ½ years compensation for any loss of remuneration caused by the “Separation of Roles”, the Complainant has much longer than 1 ½ years to work before retirement. DL will be caused a loss of 12 years and A Mc a loss of 15 years night allowance/weekend allowances/unsocial hours allowance/bank holiday allowances etc. The Complainant does not believe any such loss would have caused the four “Porters” had they continued to perform the roles they had performed and not been re-assigned to porters’ duties.

Summary of Complainant’s Case

Reference Number CA-00008722-001 (Complaint in relation to DL)

TheComplainant is an employee of the Respondent. He entered into a contract of employment in or about March 1999. He has been in continuous employment with the Respondent since that date.

The submission outlined in relation to the complaint by A McK, reference number: CA00008717-001 (above), is identical to the submission outlined in relation to DL.

The following is a submission outlined by the Respondent’s Representative:

The implementation of change within the Health Sector is governed by:

·         Health Services Partnership Agreement the Protocol on Handling Significant Change through Partnership

·         The Health Services Information and Consultation Agreement 2006

·         Together with the current National Social Partnership Agreements

·         Haddington Road Agreement May 2013

·         Landsdowne Road June 2015

It was against this background that the implementation of the “Separation of Roles” for Support Staff in LC Hospital was undertaken. Separation of Roles for Support Services is governed by a National Agreement Recognising and Respecting the Roles of Support Staff 2003. Within the context of the LC Hospital the number of staff involved in the process was 49.

Separation of Roles

Most staff were employed in LC Hospital as attendants. This enable the local managers to assign staff to where the greatest needs existed. Staff could find themselves on any given day completing many tasks i.e. care, cleaning, catering and portering. The care role was removed and a separate stream was created that of Health Care Attendants. This separation took place in 2005 in LC Hospital. What remained was a cohort of staff employed as attendants, assigned by the local manager into different roles. Some staff were fortunate enough to be assigned into a role i.e. Portering, Cleaning and Catering and be left in those roles, whilst other staff were moved constantly at the discretion of the manager. The Separation of Roles Agreement sought to address this.

In 2016, it transpired that the Separation of Roles had not been implemented fully in LC Hospital and there was a need to address this. The unions were notified of this at the regular Joint Union Management Forum in LC Hospital on the 13th May 2016. Over the next 18 months a series of meetings took place with Managers, Union Officials and Local Union Representatives to agree a mechanism for the Separation of Roles.

Within the LC Hospital this change was resisted to the extent that rumours abounded as to what would/could happen to staff. Following a request from a SIPTU Official, the Change Manager had to issue an email to staff to reassure them of concerns that were emerging that were factually incorrect.

The Change Manager outlined to the Joint Union Management Forum at a meeting the process that had been successfully utilised in other locations to introduce Separation of Roles (Castleblaney, Monaghan, Trim, Navan) and it was agreed to follow the same process the only difference in this change was Portering was included. The Separation of Roles Agreement had the support and agreement of the representative Trade Unions and it had the endorsement of the Labour Court in its recommendations LRC 17632. A meeting was held with staff to outline the process.

Management outlined at a meeting on the 22nd November 2016 the number of staff that would be required in each role.   It was agreed within the process separate meetings would be held with the Porters due to the unique situation that emerged for this group of staff.

Management identified they required 6.25 porters for LC Hospital, excluding theatre because this post had already been filled as Band 3. It was agreed that the Porters with “Porter only” on their contracts would be given a porter role and the porters with “Porter/Multi-task attendant” on this contract would be re-assigned.

It transpired during the process that there was a vacancy for Porters positions in a hospital in Drogheda, which is part of the Hospital Group. It was agreed that all staff with “Porter” or “Porter/MTA” on their contract would be given an opportunity to transfer on the clear understanding should a vacancy emerge they would have first choice to return to LC Hospital. No porter expressed an interest.

The unions sought to increase the number of porters required in LC Hospital and made requests for an increase in the numbers – this was declined by Management.

The number agreed for portering positions was 6.25. It was agreed at a meeting of the Joint Union Management Forum on the 22nd November 2016 that a preference form would be circulated to all staff covered by this change. The staff that were excluded were those staff who already had been re-graded into Specialist Roles and the 4 Porters with “portering only” on their contracts.

It was agreed allocation of positions into roles would be on seniority and that a panel would be formed where future vacancies could be filled from.

During the course of this process communication was received from solicitors on behalf of the 4 individual staff with “Porters/MTA”, Mr. AMcK, Mr. DL, Mr BM and MR. SD.

These correspondence were responded to advising the solicitor of the process that was being carried out and requesting that she advise her clients to engage in the process. She was further advised in the communication of 24th October 2016 that failure to reach agreement would be dealt with in the appropriate forums.

The Change Manager was surprised to receive a letter from the solicitor referencing Mr. BM, as he held the role of UNITE Union Representative and had attended meetings in this capacity.  

The Joint Union Management Forum was advised of this communication at the meeting of 22nd November 2016.

The allocation of posts for the porters was agreed over a number of meetings:

6.25 porters

4 porters with Porter Contracts                          Would be assigned to Portering.

2 porters with Porter /MTA

2 remaining Porters / MTA

1 would have .25 cover role for porters

1 would be assigned where service required the staff member – this resulted as DL declined to sign preference sheet.

Allocation of Porters onto Rosters

Once agreement was reached on the 6.25 porter positions, an agreement had to be sought on how these porters would be allocated onto rosters. Management proposed that once they were clear on the individual staff that were not being allocated into the Porter role the fairest way to do this was by seniority within this group. The two individuals with “porter/MTA” up to this point were very happy. They now, on seniority, would have a set roster as Porters. One of the Porters with “Porter only” on their contract clarified this but the Change Manager explained this was the fairest distribution on the roster as now all 6 staff were equal in relation to their role. The unions accepted this. A roster was agreed with the Porters and the implementation day agreed for 3rd April 2017.

In parallel while dealing with the Porters the other staff had to be dealt with. The outcome of the preference was notified to the remaining staff and those staff were advised of the implementation date of the 6th February 2017.   However, at the meeting of the 6th February 2017, it was agreed that the implementation date would be the 3rd April 2017 to coincide with the annual leave year would be best.

Of this cohort of staff 1 staff member was not happy with the outcome of the preference. She contacted her union SIPTU and outlined her concerns. A petition was signed by a group of staff to try and stop the transfer of the staff member to another location. However, after discussions with the Union Official the staff member accepted the outcome of the collective agreement.

At the meeting of the 28th February 2017, the “Separation of Roles” document was signed off and the implementation date agreed. However, clarity was sought from SC, UNITE Representative in relation to the matter of referral to the WRC. His query centred around if both staff members are left in situ - what would happen?

Mr. WQ, UNITE Official responded by saying where staff are part of a collective agreement, that agreement would have to be honoured.   The Respondent advised that she had contacted the WRC again with regards to a hearing date, but was informed it was in the system but could not be given a date. The Respondent advised at the meeting that she would contact HR for advice on this matter. Advice was received from HR on how to deal with this matter.

A number of letters were received and responded to from the solicitor on behalf of the Complainants, requesting that the implementation would not go ahead. The solicitor was advised by HR that a collective agreement was signed off with Management and Unions in LC Hospital in relation to the introduction of the Separation of Roles and she was advised that the implementation date is the 3rd April 2017.

The solicitor was further advised that management will progress with the implementation of the Separation of Roles in line with the collective agreement. If adjudication had not taken place, they will be requesting the two staff to “work under protest” in the rosters assigned pending the outcome of the adjudication.

There was no further communication from the solicitor in relation to Mr. BM and Mr. SD. The assumption one can make in relation to this matter is that both these staff were happy with what transpired within the collective process.

Collective Agreement

The Collective Agreement was signed off at a meeting on the 28th February 2017. At a meeting of the 19th January 2017 issues were brought up in relation to aspects of rosters etc. At this meeting, Mr. SC advised that Union Representatives are receiving a lot of grief from staff about rosters. PK also advised at this meeting he was under pressure not to sign the document due to the abuse he received over issues in the hospital. The Respondent advised at this meeting she was disappointed the unions would not sign the documents and clarified that her understanding was the Collective Agreement is agreed but the Unions declined to sign the document at present. Mr. Q, UNITE Union Official advised that the Collective Agreement is agreed “but he will not sign due to the flack/abuse that union representatives are getting from staff over rosters”.

Mr. BM further asked why if 10 days previously you were happy for the Union Official to sign the documents, why now do you want the representatives to sign it as well. The Respondent replied to BM and asked him would he be happy for the Officials to sign off on the Agreement.   BM replied that he would. PK advised that he was not happy for the Union Officials to sign off on the Agreement.

Mr. BM, UNITE representative declined to sign the agreement, but he was happy for the full time official to sign it.

Mr. PK SIPTU representative stated that he was getting hassle in relation to the process.

However, after consultation with his union official, Mr. PK signed the agreement on the 28th February 2017.

At the meeting of the 28th February 2017, the agreement was signed by Unions and Management. Whilst two UNITE representatives declined to sign the agreement it is accepted once the fulltime officials sign the agreement it is accepted. However, reasons given for not signing the agreement by Mr. SC, UNITE was due to the pressure from staff members.

Conclusion

The Separation of Roles for Support Staff in LC Hospital involved 49 staff. Of the 49 staff involved, the majority of staff were happy with the outcome of the separation of roles. However, with any change process you will not achieve 100% satisfaction in this process – 3 staff brought concerns.

As stated early, 1 female staff that worked in a specialist area for 7 years lost this position due to the preference on seniority.   This staff member was very unhappy and indeed petitions were signed by other colleagues not to move her from her location. However, this staff member, when met with her SIPTU Union Official and the process was explained to her, she accepted the Collective Agreement.

The information and consultation agreement outline the accepted recognised process of engagement in relation to change within the Public Services. Resulting from engagement with Management and Unions at LC Hospital a local Collective Agreement was signed off in relation to the introduction/completion of Separation of Roles. The Separation of Roles is now up and running in LC Hospital.

Both Complainants have worked as porters in the LC hospital since the commencement of their employment. The Respondent accepts this as a fact. The Respondent has re-assigned the Complainants to alternative roles as a result of the Collective Agreement.

The Complainants’ role as porters have been changed, solely on the basis of the job title (Multi-task Attendant) as outlined in their contracts of employment. Other personnel have been appointed to the role of Porter solely on the basis of the job title (Porter) outlined in their contracts of employment.

No account was taken of the significant service that both Complainants had in their role of Porter since the commencement of their employment. They were replaced by two personnel who had less service and had only worked as relief porters when their services were required.

The Collective Agreement was put in place by the Organisation without taking into account these important factors. This was unfair and unjust to the Complainants.

Based on the evidence presented at the hearing by both parties, I find that this complaint is well-founded. I recommend that both Complainants be re-assigned to their previous position as Porters in LC Hospital within six weeks of the date of this recommendation.