Complainant

Respondent

Anonymised Parties

An Employee

A Health Service Group

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-00017992-001

16/03/2018

The Complainant is employed as a porter one of the Respondent’s hospitals. He commenced employment in February 2016, initially under an intern scheme which existed at the time and which would see his employment subsequently becoming permanent.

The complaint relates to a dispute over rostering arrangements and the Complainant’s assimilation onto the roster.

Background:

According to his Trade Union representative, the Complainant received a letter dated 9 November 2017, from the hospital's Human Resources Manager. According to the Complainant, this letter purported to offer him a permanent appointment, conditional on his acceptance of particular hours of work (i.e. 12 pm to 9:00 pm – Monday to Friday).

As this was a new roster and the Complainant was being treated differently to his colleagues, his Trade Union raised the matter on his behalf with management. Following a meeting, held on 29 January 2018, the Complainant received a letter, dated 12 February 2018, from the Respondent, which stated, inter alia, that:

Ø  if the Complainant intended to work the roster assigned to him under protest, he should inform his line manager formally in writing and the matter will be followed up within one week.

Ø  the integration of this new roster into the current Portering Department roster will require negotiation through the normal industrial relations process, as a number of porters had objected to having the current roster changed.

Ø  Management would engage with the Trade Union in relation to reviewing the roster for all porters and that once discussions began, they would work towards a target of six weeks to conclusion.

The Complainant's Trade Union representative submitted that he had, in fact, informed his line manager that he was working under protest and that he wished to have his grievance heard under the Respondent's Grievance Procedures.

However, notwithstanding this and the Respondent's assurances in relation to having the grievance addressed, no meeting in this regard had been convened by 9 March 2018 and, moreover, no proposal had been received by the Trade Union with regard to the overall review of rosters.

Consequently, the Complainant’s Trade Union warned the Respondent, by letter dated 9 March 2018, that a referral to the Workplace Relations Commission (WRC) will follow on 20 March 2018 if no confirmation was received that the Complainant’s grievance would be heard. The Trade Union were informed by the Respondent that they would not be in a position to revert until 21 March 2018 and, as a result, the Complainant's complaint to the WRC was submitted on 16 March 2018.

It was submitted that the Respondent informed the Complainant's Trade Union, by way of letter dated 28 May 2018 that they were prepared to issue a revised contract to the Complainant. However, it was further stated that this letter also confirmed the Respondent's position that the Complainant would continue to work the roster he had been working hitherto and that no revised roster proposal had yet been prepared, despite four months having passed since the meeting of 29th of February 2018.

Substantive Issues:

It was stated on behalf of the Complainant that the first cause of this dispute was a decision of the then HR Manager, for which, it is alleged, she had no authority, to offer permanent employment to the Complainant conditional on specific working hours and the failure of more senior managers to countermand this situation until 28 May 2018.

It was further stated on behalf of the Complainant that it appeared the Respondent's managers involved felt themselves entitled to ignore the nationally agreed grievance procedure, despite having invited the Complainant to use it.

The second cause of dispute put forward on behalf of the Complainant related to the alleged failure of the Respondent's management to make a roster change proposal within a reasonable period. It was pointed out that both parties remain bound by the terms of the Public Service Agreement of 2010, which provides for reviews by management of rostering arrangements. It was stated that the agreed consultation and adjudication process for proposals arising from such reviews provides:

Ø  that either side may seek the intervention of a Joint Review Group (JRG) if no local agreement has been reached after seven days;

Ø  for the JRC to assist within a further seven days;

Ø  and, finally for the matter to be referred to a third-party adjudicator who will "issue binding proposals to both sides within 21 days of the referral. Implementation of the adjudicator's findings will commence immediately"

The Complainant's Trade Union representative stated that, even allowing for some slippage of the timetable, there has clearly been more than adequate time for the proposed changes to be formulated, discussed with staff, jointly reviewed and adjudicated upon. It was submitted on behalf of the Complainant that it is quite unconscionable that management did not present a roster change proposal until 30 August 2018.

In conclusion, The Complainant's Trade Union submitted, on his behalf, that it was no longer acceptable for him to be permanently working an unsocial shift and to be expected to wait indefinitely for the outcome of collective processes which have been the subject of management procrastination. It was further stated that this is especially unacceptable in a context where management have refused to hear his grievance.

Therefore, the Complainant’s Trade Union are seeking a recommendation that (a) he would have access to the internal grievance procedure and that this should be confirmed to him in writing; (b) that he should be issued a permanent contract in line with collective agreements and national HR circulars and (c) that he should be assimilated with immediate effect onto the Portering Department roster.

Background:

The Respondent stated that the post which had been allocated to the Complainant had originally been approved to extend the working hours in the Emergency Department (ED) following a WRC conciliation conference in July 2015 with the nursing unions. It was stated that the Complainant is now working the hours (12 pm – 9:00 pm - Monday to Friday) for which approval had originally been provided. However, it was further stated that the Complainant initially was placed on the normal work roster, filling in for staff on a variety of absences.

Following the introduction of circular 25/2015, the Complainant was written to by the HR Manager in August 2017 and on 9 November 2017 offering him a permanent position. The Respondent stated that, following the letter of 9 November 2017, the Complainant’s Trade Union representative registered an objection to him being placed on this specific roster.

The Respondent referred to correspondence between the parties and representations which took place between 12 January 2018 and 7 June 2018 with regard to the Complainant's specific situation.

According to the Respondent, the Complainant has been offered a permanent contract in line with the relevant circular. However, it is stated that the Complainant has not signed the contract as it initially was a contract with specific hours.

The Respondent further stated that in May 2018 management wrote offering a generic contract to the Complainant. However, it was stated that a response from the Complainant’s Trade Union, dated 7 June 2018, indicated that this contract would not be considered until the date of alignment with the general roster was received.

With regard to the issue of the general roster, the Respondent stated that management had met portering staff at the hospital and had further meetings arranged to try to introduce changes to rostering arrangements to facilitate the Complainant being integrated into the general portering roster. In this regard, a roster has recently been provided to portering staff and a definitive acceptance or rejection is awaited.

The Respondent stated that if the proposed roster is accepted then it is their understanding that the rostering issues would be resolved for the Complainant. However, if the proposal is rejected then a referral to a JRG under the Public Service Agreement (PSA) would be required.

Respondent’s Position:

In setting out their position, the Respondent stated that the Complainant came into the service under the intern scheme but was utilised mainly in the backfilling of other absences, rather than filling the hours originally approved/intended (i.e. 12 pm to 9:00 pm - Monday to Friday).

Consequently, in making the Complainant permanent he was put into the area from which the post had been approved and for the hours where the service need existed. The Respondent further stated that the general portering roster did not and does not need additional resources and the current resources need to be realigned to meet service needs.

According to the Respondent, the Complainant had been offered a permanent contract in line with the national agreement but has refused to sign the contract.

It was further stated that management have engaged with staff to bring about a change in the roster so that the hours covered by the Complainant are not covered by him alone. The Respondent stated that, to date, agreement has not been reached. However, a further roster change has been worked on by management and has been presented to the staff involved. It was stated that if these discussions are not successful then it is the position of management that the full mechanism of the PSA be applied.

Finally, in relation to the issue of the Complainant been denied access to the Grievance Procedures, the Respondent submitted that, while a meeting was convened to address the Complainant's grievance, it was not clearly indicated to him that the meeting was taking place under the Grievance Procedures.

Consequently, the Respondent stated that Management acknowledged the Complainant’s right to access the grievance procedures and confirmed that, in future, they will ensure that meetings convened are clearly indicated as being convened under the Grievance Procedure.

Having carefully considered all of the submissions made and the discussions which took place at the Hearing, it appears that the two issues at the core of this dispute are: (1) the issuing of a permanent contract of employment to the Complainant which was, in its initial presentation, conditional on him accepting a specific roster which had not previously existed and which he had not worked during his 18 month intern period of employment and (2) the delay in arriving at a point where the Complainant can be assimilated into the portering roster in such a way that he is not required to carry out the new roster (12 pm to 9:00 pm - Monday to Friday) in isolation from his colleagues.

With regard to the first matter, I am satisfied that management were clearly of the view that, in appointing the Complainant on a permanent basis into the new roster, they were doing so in line with the various circulars and the approval they have received for the new position. It is also clear that, when the matter was raised on the Complainant's behalf by his Trade Union, management were and are willing to assimilate the Complainant into the permanent roster.

However, this assimilation appears to have been initially delayed due to objections raised by some of the Complainant's colleagues. This, in turn, necessitated a review of the general portering roster and the acceptance by the collective group of a proposal from management which would allow the necessary changes, required to assimilate the Complainant into the roster, to be implemented.

With regard to the second matter, pertaining to the delay in the completion of the negotiations around the implementation of a new roster, I can fully understand the Complainant's frustration at what appears, to him, to be interminable delays. However, having listened to the submissions of the Respondent, I have some sympathy for the member of management who was tasked with conducting negotiations. In particular, I note that her involvement, to the level at which she has been involved, was primarily due to vacancies in the HR Manager and Head Porter roles.

Consequently, having carefully considered all the submissions made, I am strongly of the view that the resolution of this dispute lies in the speedy conclusion of the negotiations pertaining to the proposed new portering roster and the timely implementation of a structure which will allow the assimilation of the Complainant into the new roster.

Having carefully considered all of the submissions made and based on the considerations as detailed above, I make the following recommendations in an effort to address the various aspects of the dispute as presented by and on behalf of the Complainant:

Access to Grievance Procedures:

I recommend that the Respondent should confirm, in writing, with immediate effect, to the Complainant that he has and will continue to have full access to the agreed internal Grievance Procedures.

Assimilation onto the Portering Roster:

I recommend that, in order to conclude the current negotiations with regard to the implementation of a new Portering Roster, in a timely manner, the following should apply:

a)       The Respondent shall, not later than close of business on Wednesday, 26 September 2018, provide the portering staff and their Trade Union representatives with the final proposal for the new Portering Roster.

b)      The Trade Union undertake that a formal, definitive response will be provided to the Respondent not later than close of business on Wednesday, 3 October 2018.

c)       In the event that the proposals are accepted, the Complainant will be assimilated onto the new Portering Roster in line with its implementation.

d)      In the event that the proposals are rejected, the Respondent will immediately trigger the provisions of the Public Service Agreement (2010) and instigate the adjudication process which includes referral to the Joint Review Group and, if necessary, further referral for third-party adjudication.

e)      If, in the event of (d) above arising, the Respondent is to ensure that the adjudication process, which has its own internal timeframes, is set in train not later than 17 October 2018 and that the Complainant's assimilation into the Portering Roster, that emerges from that process, will follow accordingly.

f)        Finally, in the event of (d) above arising and the Respondent failing to set the JRG/adjudication process in train by 17 October 2018, as set out in (e) above, the Complainant will be immediately assimilated onto the existing general rotating roster.

Industrial Relations Act

Access to Grievance Procedures

Rostering