ADJ-00021281

Complainant

Respondent

Anonymised Parties

Care worker

Care Provider Organisation

Representatives

MikeMcnamaraFÓRSA Trade Union

Sinead MullinsIBEC

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-00028053-001

30/04/2019

The Complainant’s representative raised the matter of the correct legal title of the Respondent and sought to amend the Complaint Form in that regard.

The Respondent also raised a preliminary matter, namely that the Complainant’s claim was precluded by Section 13 of the Industrial Relations Act [1969-2019] as it pertained to the hours or times of work of a body of workers. The Respondent maintained that the claim would have knock on consequences on the hours of work of other employees.

The Complainant outlined that she was employed by the Respondent as a Social Care Worker having commenced employment in 2001. The Complainant works in a full-time capacity on a 78/78 roster over a fortnight in her current employment base/location.  Due to issues arising from a review of the rosters in or about 2013/2014, it was agreed that the Complainant’s hours would include 9.75 administrative hours. The Complainant submits that in February 2018 due to a vacancy, the issue of Sunday premium hours came up for discussion.  In addition to her other hours, the Complainant currently works three Saturdays and one Sunday/month and she is seeking a change to two Saturdays and additional Sunday hours in her current employment base. Sunday working attracts premium pay and the Complainant submits that currently there is not a fair distribution of Sunday hours. The Complainant is willing to surrender her administrative hours to facilitate the allocation to her of additional Sunday hours which she submits is a reasonable and fair proposal.

The Complainant lodged a number of grievances with the employer in March 2018 and management arranged for another Regional Manager within the service (herein referred to as the Investigator), to investigate her grievances. On foot of this investigation a written report dated the 24^th August 2018 was produced by the Investigator which was accepted by the Complainant on the 20^th September 2018. In terms of her request for additional Sunday hours, the Investigator documented the Complainant’s grievance as follows:

“[C]… is unhappy about her allocation of Sunday hours and feels her allocation is unfair when compared to other staff. [C].. is willing to change her 6.75 administrative hours for up to 8.25 additional Sunday hours”.

In his report, the Investigator found that “There is an uneven distribution of Sunday hours…..” in the Complainant’s employment base/location. The Investigator made the following recommendations:

·         “I recommend that a review of the allocation of Sunday hours should be undertaken …..

·         [C].. should be considered for additional Sunday hours as part of this review.

·         [C’s] administrative hours should be exchanged for additional Sunday hours allocated to her”

Following the Investigator's report, there were a number of exchanges between the Complainant’s representative Fórsa and Management seeking the implementation of the recommendations. A review of rosters was conducted by management following which, Fórsa was advised on the 20^th November, 2018 that “As a result of [the] review of the rosters….., this has highlighted a number of concerns that we need to address. We need to examine the outcome of [C’s] grievance, however in order to do this we need to look at the Service as a whole and the implications of making any changes to the roster”.

The Complainant outlined that there was a meeting of the parties to discuss the matter on the 18^th January 2019 and subsequently, on the 31^st January 2019 the Human Resource Manager wrote to Fórsa advising that it was not in a position to provide the Complainant with additional Sunday hours in her current employment base. In the alternative, management proposed that it would take 10.5 hours from the Complainant’s roster in her current employment base but allocate these to her as Sunday hours in a new base at a different location. It was also clarified in the communication of the 31^st January 2019 that travel expenses to the new location would apply.

In summary, the Complainant’s dispute with the employer is that it has failed to implement the findings and recommendations of the Investigator, that it has not addressed her grievance in respect of additional Sunday hours in her current employment base and that in response to the Investigator’s report, management has incorrectly conducted a service wide review of hours as opposed to specifically addressing the Complainant’s grievance. The Complainant also submits that it is an unwritten rule, that if a person is working on a Saturday he/she ought to be rostered for the following Sunday.  The Complainant’s representative described the situation as having reached ‘stalemate’.

The Respondent outlined the career history of the Complainant, that she is graded as a Social Care Worker and works 78 hours/fortnight. The Respondent outlined that the Complainant is the only employee in her current employment base with full time hours. The Respondent submitted that because there were not enough contact hours available, the Complainant was given 10.5 administrative hours – ie non-contact hours with the service users to make up the 78 hours.

In relation to the grievances raised by the Complainant with management in March 2018, the Respondent also referred to the findings of the Investigator’s report and confirmed that as a result, management had carried out a review of the allocation of Sunday hours. The Respondent contended that following its review of the rosters, its position was that the Complainant could not be provided with the additional Sunday hours requested at her current employment base, due to:

·         The requirement to maintain a mix of roles, skills and responsibilities on a Sunday in the Complainant’s current employment base. The Respondent outlined that this was due to HIQA requirements and that it was necessary to have a person who would undertake PPIM responsibility (Person Participating in Management) on duty on Sundays. The Respondent submitted that the Complainant had consistently advised the Respondent that she will not undertake PPIM responsibility;

·         The Respondent was obliged to accommodate another employee on a Sunday due to a request for reasonable accommodation on medical grounds;

·         The financial implications of over-staffing on a Sunday which is not budgeted for and therefore not funded.

The Respondent outlined that its review was expanded to identify if additional Sunday hours could be provided within a reasonable distance and that as a result, it had identified the new base where it stated the Complainant’s request could be accommodated. Following a meeting of the parties on the 18^th January, 2019, the Respondent confirmed that it had written to the Complainant’s representative Fórsa on the 31^st January, 2019 and advised that “In light of the entitlements of staff, HIQA requirements, staff skill mix, it is not possible to provide [C] with additional hours at a Social Care Worker Grade in this location. However, we can offer her 10.5 Sunday hours in another location ……. (taking 10.5 hours from her current roster), where a new service is being established. Travel expenses to this location can be submitted.”

Finally, the Respondent maintained that its offer of Sunday hours in the new base/location was reasonable in the circumstances and was in compliance with the Complainant’s contract of employment which specifies that the Complainant “shall also undertake such other duties as the Company shall assign to you, from time to time…..”.  The Respondent contended that it was meeting the terms of the Complainant’s contract of employment and that she has no contractual right to additional Sunday hours.

In relation to the preliminary matter raised by the Complainant concerning the legal title of the Respondent, following some discussion this matter was resolved by agreement, with the inclusion of the words “Ireland CLG” in the Respondent’s title. 

In relation to the preliminary matter raised by the Respondent, I do not accept that this complaint has been brought by a body of workers. The complaint is on behalf of the Complainant and is particular to her circumstances. Therefore, it is my decision that this complaint is within the scope of Section 13 of the Industrial Relations Act [1969-2019].

In relation to this matter overall, I am satisfied that by and large there is general agreement on the facts of the dispute including the background, the Complainant’s career history, her grievance and the key issue in dispute. Having clarified at the adjudication hearing that no issue arises in relation to the potential swopping of administrative hours, I am satisfied that the key outstanding point of disagreement is the location of the additional Sunday hours – ie the Respondent has offered these in its new location whilst the Complainant is seeking these hours in her current employment base.

Management appointed another of its Regional Managers to investigate the Complainant’s grievances and in this regard, the Investigator stated in the introduction to his report of the 24^th August 2019 that he “was asked to help with finding a resolution to the issues raised”. Since that was the objective of the investigation, I consider that the Investigator’s report and findings must carry weight. I am also satisfied that the Complainant’s grievance must be read in the context of her request for additional Sunday hours in her current employment base.

At the oral hearing I was impressed by the sincerity of both parties. Accordingly, I also accept the arguments put forward by the Respondent in terms of the constraints on its allocation of Sunday hours in the Complainant’s current employment base, arising from HIQA requirements and its obligation to accommodate another employee. 

Having considered the submissions of both parties and the evidence adduced at the adjudication hearing, I am of the view that this dispute will not easily be resolved without further compromise on the part of both the Complainant and the Respondent.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to this dispute. Accordingly, I recommend as follows:

·         Both parties should engage in further discussion to resolve this matter;

·         The Complainant should reconsider accepting on an interim basis, the resolution proposal already tabled by management since in the immediate term, it provides her with additional Sunday hours – albeit at a different location to her current employment base;

·         The Respondent should reconsider the Investigator’s finding that “There is an uneven distribution of Sunday hours…..” in the Complainant’s current employment base and consequently, the Respondent should take positive steps toaddress the Complainant’s request for additional Sunday hours in her current employment base going forward from 2020.