Complainant

Respondent

Anonymised Parties

A Worker

A Hospital

Representatives

MauraCahalanFórsa Trade Union

Aisling McDevittIBEC

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-00027539-001

05/04/2019

The worker has been employed as a Chef since 15th April 2013 on a 19.5 hour contract. During his time of employment the Worker has actually worked between 30 and 40 hours a week which is in excess of his contract. Despite having no fixed roster The Worker volunteered to work one weekend every eight weeks in November 2016 which in some cases was also exceeded. (Appendix 1)

On 24th July 2017 The Worker received a letter from Ms. Troy outlining that his role “is a flexible role to facilitate the covering of the Chefs roster which currently operates between the hours of 7am and 5pm, and includes weekend cover”.  This permanent contract offered the Worker 31 hours working week. However, an issue arose due to the fact the Worker was not been offered the same terms & conditions as pre-existing permanent employed Chefs. Continuous negotiations were undertaken between the Worker and management to try and reach agreement. These negotiations were to assist with reaching an agreement on a fixed roster and fixed shift hours.

After continuous negotiations the Worker wrote to management in September 2017 outlining his concerns over managements interpretation of his role and current working arrangement within the Catering Department while looking for clarification in relation to why he was been offered different terms & conditions  compared to the existing permanent employed Chefs.The main issues been;

- All current employed permanent Chefs have a fixed roster and fixed shift hours on a monthly rollover.

-  All current permanent Chefs work exclusively in either the main or diet Kitchen.   

The Worker was informed he would not receive a fixed roster/fixed shift hours or be assigned to only one kitchen but would have to rotate between both kitchens. 

The Worker did not receive a written response or acknowledgement of this email until 27th April 2018 where management wrote stating “no obligation to offer you any contract other than what you were previously employed on“ and that for all intents and purposes all other arrangements as previously worked should remain.

The workers union engaged with management to seek agreement of rostered  arrangements and assignment to either main or diet kitchen without success.

The workers Union position is that the Worker receives the same parity as other permanent Chefs within the service which are;

–             A fixed roster and set shift times on a monthly rollover.

–             That he is exclusively assigned to either the main or diet kitchen.

The Worker initial appointment was more than just to facilitate cover due to absences in the Department. That he actually facilitated the necessary additional resource to operate the required service. The union states this as The Worker never worked the .5 wte hours he was hired for and became an integral part of the work force to ensure the service was fully delivered.   The worker believes that he never worked only his contract hours and received no contract stating he was relief. He was hired as a Grade II Chef. That his actual working week varied between 30 and 40 hours. That management cannot state this is only for the cover of leave. The Worker’s position was actually a required position, outside of leave, for management to deliver the service which was needed.

There is a precedent already set with the current customary practice were all permanent Chefs work a fixed roster, fixed shift hours on a monthly rollover and are assigned to either the main kitchen or the diet kitchen. The Worker is entitled to parity and we question whether or not it is the fact he is the only male chef within the service.

Management contradict their own argument that they have no obligation to offer the Worker any contract other than what he was previously employed on by offering him a contract for 31 hours instead of 19.5 hours. They are fully aware the Worker’s position is integral to the providing of the service and on that ground he should receive the same terms & conditions as any other permanent chef working within the service. They need the Worker to actually agree to a 31 hour contract as on the 21st December 2018 the Worker received a phone call from Catering Management, that afternoon, informing him that HR considers him to be compelled to work 31 hours a week and that any failure on his behalf to do so will be considered as unauthorised absence.

The Respondent organisation is a paediatric hospital based in Dublin, which provides health services for children. The hospital employs a number of employees on permanent, fixed term and relief contracts of employment. 

The Claimant is employed as a Chef Grade 2 in the Respondent’s Catering Department. In 2013 a need was identified to employ an additional Chef in order to address any shortfall in available employees due to annual leave, illness etc. The Claimant was employed on this basis on a 19.5 hour contract of employment, on the basis that he would receive a minimum of 19.5 hours, but the precise hours would be assigned weekly on a relief basis . The Claimant received a number of successive fixed term contracts until September 2017 at which point he was issued with a Contract of Indefinite Duration. At this juncture he was offered a 39 hour contract but refused same and so the Respondent offered him 31 hours per week. The Claimant continues to work under this contract. 

Background to the Issue

1. The Claimant has highlighted four key areas of dispute in relation to this claim; namely:

a. Issue on agreement over offered Contract of indefinite duration

b. Contracted hours

c. Fixed Roster

d. Parity with other Chefs – split working area.  

These issues are all interlinked and refer to the nature of the Claimant’s work pattern.  

The Claimant was, as aforementioned, hired to provide flexible, relief cover where needed depending on the needs of the business. The purpose of creating this role, was to reduce the hospital’s spend on agency workers and ensure that direct employment was created where possible. This is in line with the spirit of the Public Service Stability Agreements.  

While the Claimant had contracted hours of work, specific to the catering department, he was liable to work in either the “main” kitchen or the “diet” kitchen (which services patients with allergies and other dietary requirements), and while he was guaranteed a minimum of 19.5 hours, these hours were liable to fall on different days depending on organisational needs. Work was assigned to the Claimant in a manner akin to a relief worker depending on the needs of the department and he was not historically assigned specific days of work or a specific kitchen. The Claimant receives his roster on a Thursday for the following week. 

The Claimant worked on this basis for a number of years and it is true to say that he often worked above his contracted working hours.  

In September 2017 there were discussions with the Claimant around the terms of his contract. In order to provide the Claimant with greater stability the Respondent offered him a full-time contract of indefinite duration. The Claimant refused a full time contract, but did accept an offer of 31 hours per week. The offer letter attached to the contracted highlighted the flexible nature of the role. While the company still had a requirement to reduce agency work and is therefore not in a position to offer the Claimant a “fixed” roster with set days/ a set location, the company did at this point offer to assign the Claimant a fixed day off per week (Wednesdays) to provide him with greater structure. Resultantly, the Claimant now works four days per week; Monday, Tuesday, Thursday and Friday, and one weekend in eight. 

The Claimant’s 31 hours are therefore divided among 4 days and shifts may run from either 7am – 3pm or from 8am – 5pm on these days. Therefore, while they continue to be assigned on a Thursday for the following week, there is a degree of predictability in relation to same, and the variation in start times between the two shift options is only one hour. This arrangement has been in place since September 2017. 

Around that time, the Claimant queried whether it was fair that he did not have set start and finish times and a set roster, that he, unlike other staff members, worked in both the main and the diet kitchen and that the new contract and attached offer letter provided for the Claimant to work a weekend out of four. Some correspondence was exchanged between the claimant and the Respondent on this point, and the Respondent’s position was clarified in a letter dated 27th April 2018, which stated;

“..you were initially employed as a temporary relief 0.5 WTE Chef in the Catering Department. The purpose of this role was to facilitate cover due to absences in the Department. As you correctly pointed out, you regularly worked extra hours to facilitate adequate cover in the Catering Department in order for the service to operate. You have continued to be employed in this regard since.”

In relation to the Claimant’s working arrangement, it was clarified that, his new permanent contract “is merely a change of status from temporary to permanent. You had successive temporary contracts as a 0.5WTE Chef, and for all intents and purposes all other arrangements as previously worked should remain. However, you were issued with a permanent contract for 0.8 WTE or 31 hours per week”. i.e. the change in status from fixed term to permanent did not trigger a change in the flexible/ relief nature of his working hours. 

In addition to this, and further to the Claimant’s continued dissatisfaction, a meeting was convened between the Claimant and his line Manager to discuss same in December 2018. 

 At this meeting, the Claimant accepted that he was initially hired as an additional resource to provide cover where needed and reduce the number of agency hours required in the catering department. This requirement still exists notwithstanding that that the Claimant has since been made permanent and therefore while the respondent has made certain concessions to provide greater structure to the Claimant’s working week, it must retain a degree of flexibility.  

Another correspondence was issued to the Claimant in January of this year, again clarifying that the Claimant’ contract “is for 31 hours per week which you have been working since 2017, you are required to continue to fulfil the contract hours as allocated. Mr. Cruite reviewed the Chef’s rosters and you were allocated a fixed days roster of Monday Tuesday, Thursday and Friday with flexibility of 1 hour starting time, which was a requirement for the role. I note that where you participate in the Weekend cover roster, fixed days pertain to this also...As outlined in previous correspondence...you were initially employed as a temporary relief 0.5 WTE Chef. The purpose of this role was to facilitate flexible cover due to absences within the catering department and you continued to be employed in this regard. However, as stated to you in previous correspondence, the hospital acknowledged your length of service and your skill set and furnished you with a permanent contract in 2017”

1. The Claimant lists 4 areas in which he states he is in dispute with the hospital

a. Issue on agreement over offered Contract of indefinite duration

b. Contracted hours

c. Fixed Roster

a. Parity with other Chefs – split working area. 

 While the Claimant has not raised these issues formally under the company grievance procedure, the hospital understands that he wishes to have set start and finish times on each of the days that he works, a fixed roster, and that his dispute regarding the “split working area” refers to the fact that he, unlike some of the other Chefs, works in both the main and the diet kitchen.  

The Claimant’s role was created as a flexible resource to provide the hospital with the means to cover its Catering departments using direct labour, in line with the spirit of the Public Sector Agreements. While there may well be other historic contractual arrangements that apply to other Chefs employed by the hospital, these are distinct to the individual employees to whom they apply. The Hospital would like to point out that the Claimant is not the only employee who works on a weekly roster. One of his colleagues also provides flexible relief cover as assigned on a weekly basis.  

 The hospital has been reasonable in taking measures to provide the Claimant with as much consistency as is possible in relation to his working hours, by providing him with a set day off each week, and a variation of only one hour in relation to his start time (7-3 or 8-5 shifts). However, the requirement for flexible cover within those parameters remains. 

Were a permanent role to arise in either the main kitchen or the diet kitchen, the Claimant would be more than welcome to apply for same. However, when the Claimant was offered his permanent contract, which he has now been working under for a number of years, it was on the basis of continued flexibility in covering both kitchens, as needed on the basis of a weekly roster. There is no business need for a new Chef role, specific to either kitchen, and if the Adjudication Officer were to recommend that the hospital assign the Claimant to a set roster pattern or a specific kitchen, such a recommendation would be surplus to organisational requirements in those locations and would likely have the effect of increased agency spending once again.

The worker was offered a 39 hours contract in September, 2017. He declined the offer. He was then offered a 31 hour contract. That offer was accepted. Had he accepted the 39 hours contract the hospital would have been able to facilitate his request for fixed shift hours. Unfortunately, because he does not work 39 hours it is not possible to facilitate his request. However, I do note that there is only a one hour variable in his start/finish times. His days of work are fixed, his weekend shifts are fixed and is day off is fixed.

In all of the circumstances, I recommend that the worker sign his August, 2017 contract of employment as is and accept that because he refused the 39 hours contract the respondent cannot accede to his request.

 I recommend that the worker sign his August, 2017 contract of employment as is and accept that because he refused the 39 hours contract the respondent cannot accede to his request.