LCR21821

SUBJECT:
1. An appeal of an Adjudication Officer's Recommendation no: ADJ-00008953.


BACKGROUND:

2. This case concerns a claim by the Union on behalf of the Claimant for loss of earnings. This case was the subject of a previous Adjudicator’s Recommendation ADJ-0000622.

The Union said that the Worker was a full time Staff Nurse. In May 2005 he commenced a .5 WTE post as a Diabetic Retinopathy Screener and covered the remainder of his job as a Staff Nurse. The Union is seeking arrears to be paid to the Worker for the loss suffered based on the salaries of each post.

• 
  The Employer said that under the Public Service Agreement nursing staff who participated in roster changes that resulted in any loss of earnings were compensated on 1.5 times the loss on a once off basis. If any losses of earnings were incurred, this is the method of compensation that should be used.

• This matter was referred to an Adjudication Officer for investigation and Recommendation. On the 12 July 2018 the Adjudication Officer issued the following Recommendation:-
  • “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 argument in relation to the choice of the claimant to opt for the RGN post, I found that the contention by the union that the respondent did not appeal the previous adjudication and that they were required to observe the provisions of the Public Service 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 1^stMay 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.”.

The Employer appealed the Adjudication Officer’s Recommendation to the Labour Court on the 22 June 2018 in accordance with Section 13(9) of the Industrial Relations Act, 1969.

A Labour Court hearing took place on the 4 October 2018.

DECISION:

Background to the Appeal

This matter came before the Court by way of an appeal brought by the HSE against a Recommendation of an Adjudication Officer bearing reference number ADJ-00008953 and dated 23 May 2018.

Between May 2005 and February 2014, the Worker was employed as a Staff Nurse .5 WTE at Sligo University Hospital and he concurrently held a .5 WTE post as a screener with the Diabetic Retinopathy Screening Services (DRSS). The latter is a Grade 6 clerical post with a 7-point incremental scale. In February 2014 the DRSS was absorbed into the National Cancer Screening Service and the Worker was redeployed on a .5 WTE basis to the position of Community Registered General Nurse (CRGN). The Worker is remunerated at a lower hourly rate in the CRGN position than he was in the DRSS post and is required to work 19.5 hours a week although he worked 18.5 hours a week in his DRSS role.

It was understood jointly by the Parties that the Worker’s transfer in 2014 was to be a temporary one pending the establishment of a new Ophthalmic Clinic in the North West. For a number of reasons, that Clinic has not yet been established. However, the HSE Representative assured the Court that the establishment of an Ophthalmic Clinic in the North West remains on its service plan and is one of its top priorities.

Recommendation

Undoubtedly, the Worker has suffered a loss in earnings as a result of his transfer from his .5 WTE DRSS post to the .5 WTE CRGN post in 2014. He has a legitimate expectation of being reappointed to a DRSS post once the HSE’s plans to establish a new Ophthalmic Clinic come to fruition. The Court, therefore, recommends that the Worker should be compensated for his loss of earnings from February 2014 to the date of this Recommendation using the PSA formula of 1.5 times the loss on a once-off basis.

The Court so recommends.

Signed on behalf of the Labour Court



Alan Haugh
CR______________________
12 November, 2018Deputy Chairman



NOTE

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