Complainant

Respondent

Anonymised Parties

A nurse

A Health Care Service Provider

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-00027226-001

22/03/2019

The present appeal concerns the interpretation of the words “loss of earnings” contained in the Labour Court recommendation LCR21821, which is argued is capable of two meanings.

Facts

The Complainant was redeployed from a post he held as a diabetic retinopathy screener to a job as a community registered public health nurse in February 2014. After the redeployment his pay was less and his hours were longer. At the first adjudication, (ADJ - 00000622) Mr. Sean O’Reilly, Adjudication Officer, found that the transfer constituted a redeployment under the Public Service Agreement and awarded him compensation based on his loss of remuneration from the date of the redeployment.

The Complainant took a second adjudication complaint (ADJ – 0000 8953) when the recommendation by the previous Adjudicator was not properly implemented. He claimed that the Respondent’s interpretation of the first recommendation failed to take account of the additional hours worked or indeed the obligation upon him to work 13 weekends each year, something that he was not required to do under his former contract. Ms. O’Shea finding in favour of the Complainant in giving effect to section 6.1.19 of the Public Service Agreement recommended that “the Respondent make good the entirely of the losses” which implied that the compensation would include loss of earnings and pay for the extra weekend work.

This matter was appealed to the Labour Court which again found in favour of the Complainant in finding that the Respondent breached the provisions of the Public Service Agreement in relation to transfer rights in a redeployment. The Labour Court awarded the Complainant loss of earnings from February 2014 to the date of the issue of its recommendation, without specifying whether this phrase “loss of earnings” encompassed the extra hours of weekend work or not.

The issue to be determined at this Adjudication is whether the Labour Court intended when it used the term “loss of earnings” to mean that the Complainant should be paid for the hours worked at weekends whether it meant, as the Respondent contends, that there should be no extra payment for the weekend work.

The Complainant contends that it makes an absurdity of the Labour Court Decision LCR21821 if the Respondent is not obliged to pay to the Complainant (not just the pay differential between a Community Registered Public Health Nurse and a Diabetic Retinopathy Screener) but also for the extra hours of weekend work that he was not obliged to do as a Diabetic Retinopathy Screener.

The Respondent in interpreting of the Labour Court award of “loss of earnings” as meaning solely a comparison in salaries between a CRPHN and a Diabetic Retinopathy Screener means that the Public Service Agreement is not given effect to. The Agreement states that an “employee’s existing pay and terms and conditions of employment will be protected if they participate in the redeployment scheme” however if the Respondent’s mischievous interpretation of the Labour Court’s phrase “loss of earnings” is upheld, mean that the Complainant will not have had his conditions of employment protected. This interpretation is in breach of the Public Service Agreement because it does not take account of actual loss and the Labour Court could not have intended this.

If the extra work at weekends is not compensated, the Complainant will suffer losses due to unpaid extra working hours (from 2014 to date) of €61 000.00 which would be an absurd interpretation of section 6.1.19 of the Public Service Agreement.

The Labour Court decision and phrase “loss of earnings” took into account all aspects of the appeal including the fact that the new position of CRPHN required weekend work.

This matter is Res Judicata and an Adjudication Officer cannot be required to divine what the intention of the Labour Court might be. The decision of the Labour Court stands.

I accept that the parties have formed differing views as to what the Labour Court intended when it used the phrase “loss of earnings”.

However, it cannot be a matter for an Adjudication Officer to interpret what the Labour Court intended in any decision. Section 13 (3) (b) of the Industrial Relations Act 1969, as amended, states that an Adjudicator shall not investigate a trade dispute if the (Labour) Court has made a recommendation to the dispute, which in this case, it has. Therefore, I have no jurisdiction to consider this complaint.

It is more appropriate instead for the Complainant to return to and to seek clarification from the Labour Court on the specific question below:

Did the Court intend the phrase “loss of earnings” to be limited only to a difference in salary between a CRPHN and a Diabetic Retinopathy Screener?

Or did “loss of earnings” also include that the extra hours worked by the Complainant at weekends that were not a term of the previous post?