ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00014269

Parties:

Complaint(s):

Date of Adjudication Hearing: 12/07/2018

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015and Section 13 of the Industrial Relations Acts 1969] following the referral of the disputes to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the disputes).

CA-0001`8619-001

Industrial Relations Act 1969-1990

Background

The claimant commenced employment with the respondent in 2012 as an RGN. In September 2013 she was promoted to a CNM2. In that position, the claimant worked as a member of the Cork team, as with most all other mobile clinic teams throughout the country, the Cork Mobile clinic team works 4 days per week

In April 2016, through open competition, the claimant successfully applied for a CNM3 based in Cork. This role is not within the clinic team and is based in a fixed centre. The claimant’s contract of employment as a CNM3 states that her normal working hours are 5 days per week.

Union Arguments

It was stated on behalf of the claimant that she had an agreement with the respondent regarding her four-day rostering arrangement since 2012. This agreement was confirmed in 2016 when the claimant was promoted by the service. The services run smoothly and appropriately in Cork throughout that time, as confirmed by the respondent at a meeting with the Union.

The criteria for recognizing the claimant’s rostering arrangement as a custom and practice are fully met. It was stated that it was well known by all relevant parties, including her line managers, it had no detriment to the service and it was a complaint with her contracted hours of work. It was submitted that it had been in place for 4 years before it was questioned by her newly –appointed director, who sought to take issue with it at that point. It was further submitted that the claimant’s line manager at the time in April 2016 agreed that she remains on a 4-day week, as established attendance pattern.

It was stated that if the respondent had legitimate grounds for seeking a prospective change to an employee’s attendance pattern, the sole provision for this was through the context of the Public Service Agreement, which governed the process for introducing such changes. The union submitted the additional argument to support their case along with the impact of this has had on the claimant. It was stated that the claimant has been obliged to undertake the five-day roster under protest, she has accrued considerable cost in additional travel time mileage and care cost because of unreasonable actions by the respondent. It is only fair and reasonable that she is compensated for these costs.

The Respondent submitted

Due to circumstances outside her control, the claimant was not performing the full range of CNM3 role from an appointment in April 2016 to September 2017. During this time, she provided some cover for a CNM2. On occasion, the nature of this work made it possible to work her full hours over 4 days. This situation for the CNM2 cover ceased in September 2017. It was also submitted that some services and employees that then claimant manages work on Fridays. Thus, it is essential that she be present when these staffs are at work. The claimant is employed as a CNM3. The terms of the contract cannot be changed without the agreement of both parties. The respondent is not agreeable to amending the contract or to permit the claimant to work her hours over 4 days each week. No CNM3 has ever operated in the role on a 4-day week. A flexibility working arrangement had also been formally applied for by the CNM3 based in Dublin and was also refused by the respondent due to the nature of the role.

The respondent is requesting that the Adjudicator reject this complaint.

Findings

Both parties made extensive written and verbal submission at the hearing.

I find that the claimant commenced employment in 2012 as an RGN. I find there is no dispute between the parties that the claimant was employed as a CNM2 and that her working week was done over 4 days up to April 2016.

I find that the claimant applied for and was successful in getting a CNM3 position I find that having examined the contract of employment which states in;

2.0 Contracted Hours

“The appointment is full time, 39 hours per week. Your hours will be appointed by your Head of Department (or his/her nominee) and may vary from week to week. You will be required to work the agreed roster/on-call arrangements advised to you by your line manager. This roster will be aggregated/accumulated over a 4-week period. While hours will be normally rostered on a 5 over 5-day basis we reserve the right to roster hours on a 5 over 7-day basis to meet the need of the service”

I find that this contract of employment was signed by the claimant on the 1st April 2016

I find that the custom and practice that existed from 2012 ceased when the claimant signed her new contract of employment.

I find that the claimant was aware of what the new position required. I find that no custom and practice existed after the date of the new contract while various work patterns were operated these were done for the needs of the business and the claimant being in a senior role. I find that the approach by the respondent on how the issue was handled leaves a lot to be desired. I find it doesn’t foster good industrial relations. I find based on the evidence at the hearing the claimant had given the opportunity of reverting back to her role as a CNM2 which was not acceptable. I find in the overall context the respondent based on the contract of employment and subject to mutual respect have a right to seek the implementation of the terms of the contract.

I finds that when the claimant took the new position that she knew that additional travelling would be required however I find that this was offset by the increase in her salary

Recommendation

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

I find the respondent in accordance with the claimant’s contract of employment has the right to implement the hours associated with the position however this should be done with respect and dignity.

I find I cannot support the claimant/s claim for custom and practice and compensation.

Dated:   09/10/18

Workplace Relations Commission Adjudication Officer: Jim O'Connell

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