Complainant

Respondent

Anonymised Parties

A Worker

Health Service Provider

Representatives

Martina Weir SIPTU-Workers Rights Centre

Paul Hume   IRO

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-00011844-001

12/06/2017

The claimant was aggrieved with the manner of implementation of a previous adjudicator recommendation concerning loss of earnings arising from the claimant’s redeployment.

The claimant commenced employment as a permanent full time Staff Nurse with the respondent in 1998.In May 2005 , he commenced a .5 WTE post as a Diabetic Retinopathy Screener (Grade VI) and covered the remainder of his job as a Staff Nurse .He was issued with 9 Fixed Term Contract posts thereafter for the retinopathy post   and it was submitted that this would have entitled him to permanency. In Feb.2014 , the post was subsumed into a national screening service arising from which the claimant was redeployed to an RGN post - .5 WTE ; he was given a commitment that he would be assigned to an ophthalmic post n a new clinic when this was established in the future. The claimant’s payslip referred to a .5WTE staff nurse post while the earnings from the RGN post was described as “ A Basic Cash Adjustment”. It was submitted that the loss incurred by the claimant when account was taken of the staff nurse post and the RGN post was almost €6.00 per hour.It was submitted that the RGN post required the claimant to work a 39 hour week as opposed to a 37 hour week associated with the ophthalmic position and the claimant is also required now to work weekends. When the matter was referred for adjudication , a recommendation emerged which provided for the claimant being assigned to a position that would attract the higher rate of pay or pay him the higher rate pending the opening of the new ophthalmic clin ic. The claimant accepted the recommendation and it was not appealed by the respondent.

It was submitted that when the respondent set out their interpretation of the recommendation , they only concentrated on monies paid over the period at issue but did not take account of either the additional hours worked by the claimant or indeed the requirement to work at weekends.

It was submitted that the Public Service Pay Agreement provided that an employee’s existing pay and terms and conditions of employment will be protected if they participate in a redeployment scheme. It was submitted that the additional disadvantages of the current role would have to be factored into the calculation of loss which was estimated at €12,000 as of March 2016 (10 months loss).

The respondent submitted that the claimant was appropriately paid and that it was proposed that the claimant would move to a community ophthalmic post when the service commenced.

It was submitted that the claimant was seconded from his hospital post on a .5WTE as a retinal photographer and paid at the first point of the Grade VI scale which was based on a national agreement. The service was outsourced to a private provider in April 2014 and while the claimant was offered full time work based in the hospital , he chose to opt for an RGN post where he remains to this day. The respondent accepted that the claimant had the skill set to work in a community ophthalmic service but the post has not been established but remains as a top priority when an appropriate location can be sourced. It was submitted that if the claimant had chosen to revert to his staff nurse post , there may have been no loss of earnings. It was further submitted that “ The ophthalmic post could potentially ensue that there may be no loss of earnings moving forward .However the employer considers this issue as academic and one that is resolvable”.

I have reviewed the evidence presented at the hearing and noted the respective position of the parties. The respondent undertook to review the calculation of loss taking account of the union’s representations regarding additional hours and the weekend work requirements within a time frame of 1 month from the date of the hearing. The respondent has since indicated that they wish the recommendation to issue.

I have reviewed the evidence presented at the hearing and noted the respective position of the parties. While I acknowledge the respondent’s arguments in relation to the choice of the claimant to opt for the RGN post, I found the contention by the union that the respondent did not appeal the previous adjudication and that they are required to observe the provisions of the Public Services Agreement on redeployment , to be most persuasive.

The provisions of Section 6.119 of the Public Service Agreement is unambiguous….” However an employee’s existing pay and terms and conditions of employment will be protected if they participate in the redeployment scheme”.I recommend that the respondent make good the entirety of the losses incurred by the claimant from the 1st.May 2015 to whatever date the claimant resumes retinopathy screening   .I recommend that the parties immediately engage with a view to agreeing a time frame for the phased payment of said losses within a maximum time frame of 3 months from the date of this recommendation.