Complainant

Respondent

Parties

Marco  Di Marzio

Health Service Executive

Complainant

Respondent

Anonymised Parties

Representatives

 In person.

Sharon Deighan HSE

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00039955-001

21/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00039955-002

21/09/2020

The Complainant is employed as a Senior Session Pharmacist in the Health Service Executive on a sessional basis.

Employment commenced in March 2002 and the Complainant remains in employment.

This complaint was received by the Workplace Relations Commission on 21st September 2020.

The Complainant is a senior sessional pharmacist working in the addiction service HSE since March 2002. The Complainant worked in three different locations: City clinic, Clonskeagh Hospital and Baggot Street Hospital. For the past 16 years his established and agreed working arrangements for Baggot St Clinic was 30-36 hours per week. This was subsequently reduced by agreement to 20 hours per week (4 hours Saturday, 8 hours Sundays and 8 hours Bank Holidays) to facilitate the Complainant’s return to college studies.

 The Complainant was also sometimes able to work some more hours on an ad hoc basis

when requested. While he was away on holidays last August, Baggot St Clinic was shut down by management which he found out about on his return on 20th August 2019. Although this shutdown had been the subject of rumour for years, the action was taken without any prior notification or consultation with staff – the notice given, shutdown and moving of staff and patients was carried out over the course of one week.

HSE management never contacted the Complainant to discuss future arrangements for his working hours and numerous attempts by him to engage with Management were ignored or he was passed from department to department and eventually dismissed from any engagement altogether. He feels that he was treated appallingly for months regarding a workable arrangement and finally, in order to get a resolution, he had to make a complaint to the WRC.

The details of working arrangement for sessional pharmacists are complicated and normally cause confusion. At the hearing of the complaint the Adjudication Officer made a great effort to examine and understand the complexities and made recommendations in this case: Adjudication Reference: ADJ-00026135:

 “Based on my findings above I make the following recommendations:

 • That the employee’s loss of earnings be calculated on the basis of earnings from August 2018 to July 2019 vs earnings from August 2019 to July 2020 adjusted to negate the impact of any pay increase in the second year.

•That the employee receive compensation of €2000 for the failure of the employer to consult and engage with him in relation to the change and its impact on him and for the failure of the employer to have appropriate arrangements in place to allow the employee address his grievance internally in a timely manner”.

The Complainant gave this recommendation to his line manager so she would have a clear guideline in how to calculate his loss of earnings when requested to do so. She did just that and on 23rd July 2020, she provided the Complainant with his calculations as per the WRC recommendation – she counted the difference in paid hours between both years which yielded the following compensation payment due:

337.5 (hours) x 1.5 x €43.40 p/hr = €21,971.25. These figures include week-end hours, bank holidays and all the hours the Complainant worked between Baggot Street Hospital and Clonskeagh hospital. These hours (which were previously consistent and regular rostered hours for the Complainant) now are gone because of the new arrangements in place since the closure of Baggot St Clinic. These figures were sent to HR by the Complainant’s line manager. On the 27th August 2020 the general manager sent an email to the line manager who subsequently forwarded to the Complainant. This email has provided the Complainant with an altered calculation which is not based on the national agreement and the previous adjudication recommendation.

The Complainant feels that Management have cherry picked the hours they want to include in their calculations which is resulting in a compensation payment of €5,949.68.

The Complainant feels that Management’s calculation is in direct conflict with all the input from the relevant authorities so far, despite them being made fully aware of all these requirements. Their calculations are based only on the loss of week end hours (doesn’t include bank holidays) and the hourly rate applied is an old hourly rate that has been superseded. The Complainant explained to them that he lost other hours during the week too, and that the recommendation issued was based on the national agreement and taking in to consideration the irregular nature of our sessional contract and hours. A workable replacement plan for both parties (management and the Complainant) was not possible as previously discussed and the Complainant has been left with less regular rostered working hours than he had before.

This has obvious implications for the Complainant in managing his financial obligations with the associated challenges and worries therein. The 1.5yr compensation payment national agreement in place, while it is not a lifelong replacement of the loss does serve to take the short-term pressure off an employee when they are subject to a loss in salary in these circumstances. HR paid the award of €2000 but is refusing to adhere to this national agreement and WRC recommendation and have indicated it is not open to any discussion.

The Complainant feels that previous engagements with them on this and other matters has proven to be a complete run around he therefore request assistance from the WRC on this matter.

The Complainant is employed as a Senior Session Pharmacist in the Health Service Executive on a sessional basis. Sessional Pharmacists were initially engaged to fill a particular need at a particular time. These sessional pharmacists were initially employed by the former area health boards.

The Sessional Pharmacists were originally engaged on a contract for service and were deemed as independent self-employed contractors.

During the years 2007 /2008 the trade union, IMPACT, representing the group of staff pharmacists entered into discussions with management of the Addiction Services with a view to agreeing and issuing agreed Terms and Conditions of employment. However, these discussions failed to reach an agreement and remain to be addressed.

In 2004 a service level agreement was reached between CHO 9 and CHO 6 for the Complainant to provide part-time sessional work in Baggot Street Hospital, CHO 9 would continue to be the area the Complainant was assigned to for payment purposes and CHO 6 would re-imburse the hours worked by the Complainant to CHO9.

In 2011 the HSE East Coast Addiction Services (CHO6) and HSE South Western Area Addiction Service (CHO7) were amalgamated resulting in CHO7 regional governance of provision of service and the agreement continued with CHO9 in respect of sessional work provided by the Complainant in Baggot Street Hospital.

On the 18th July 2019 the Complainant’s Line Manager advised her team that the Area Operations Manager was advised by HSE Estate Management that Baggot Street will be closed from 1st October 2019 to be discussed further at management meeting and advised that there may not be a replacement dispensing clinic.

On 14th August 2019 local management were advised of the imminent closure of Baggot Street Hospital decision made by Public Health and the management team of CHO 6 due to the highest ever recording of most serious type of legionnaires disease. An emergency meeting was convened, and Baggot Street Hospital closed on 20th August 2019.

The Complainant who was on annual leave at the time resumed duty on 27th August 2019 and was advised by his line manager on 27th August of the closure and outlined alternative sessions in lieu of Baggot Street closure and associated lost hours.

Correspondence issued between the line manager and the Complainant in respect of alternative sessions. In correspondence dated 25th September 2019 the Complainant issued correspondence to his line manager outlining the alternative sessions worked in Castle Street which states “This according to the Haddington Road agreement, is a valid alternative to my previous location and fulfil the HSE obligations in giving me a location that I can get to and that has equal pay as my previous Baggot Street sessions ……”

The Castle Street sessions were not guaranteed as a regular rostered session as a replacement for Baggot Street as the service requirements dictate were the sessional pharmacist is required to provide the service.

The Complainant did not agree with providing a sessional service in alternative clinics and was seeking a fixed location due to the possible undue expense and disruption and as management could not sort a reasonable acceptable work arrangement as a result of the Baggot Street closure he will be seeking compensation to the amount of €9,212.40.

Further correspondence issued identifying a risk to safe performance in rostering a pharmacist working on their own in a clinic location they are not familiar with and management put measures in place to alleviate that risk however due to other commitments the Complainant could not comply with the measures put forward and sought to progress compensation.

On the 8th January 2020 local management received correspondence from the WRC in relation to the Complainant, he had submitted a complaint under the Industrial Relations Acts. This was subsequently forwarded to the Employee Relations Manager for CHO7 and the Addiction Services who subsequently issued the WRC notification to the Employee Relations Manager for CHO9. Following engagement, it was decided that the Respondent was the Employee Relations Manager CHO7.

On 11th February 2020 the Employee Relations Manager CHO7 advised the Complainant that she was the Respondent and requested to meet to exhaust the internal mechanisms, the Complainant declined this invitation.

On 14th February 2020 the Complainant was informed that in line with National Agreements, any compensation for loss of earnings can only be calculated after a 12-month period of the change of roster in order to calculate the actual loss. On 20th February 2020 the Complainant outlined his loss and compensation was calculated by the complainant at a figure of €10,936.80.

This complaint was originally submitted under the Industrial Relations Acts, a hearing was held on 26/02/ 2020 and a recommendation issued on 14th May 2020.

Regarding the recommendation I note that it was not appealed by either the employee or the employer.

The complaint was then submitted under section 6 of the Payment of Wages Act, 1994 on 21st September 2020. A complaint under section 13 of the Industrial Relations Act, 1969 was also submitted at this time.

In relation to the subject of compensation due to the Complainant for a loss of earnings incurred by  him due to the closure of Baggot Street Hospital there is no dispute between the parties. The dispute relates to how much compensation is due to the Complainant.

The initial figure of €5,949.68 offered by the Respondent was rejected by the Complainant who felt that following the recommendation from the WRC issued on 14th May 2020 he was due a compensation of €21,971.25.

Prior to this hearing the Respondent reviewed the calculation and a figure of €9,468.30 was calculated.

Compensation for loss of earnings in the Public Sector was the subject of a Labour Court recommendation in 2011 (LCR 19995). Following this recommendation from the Court, Ms Oonagh Buckley, the then secretary of the Implementation Body wrote to Mr Tom Geraghty, the then Secretary of the Public Services Committee of the Irish Congress of Trade Unions, this letter reads as follows:

“I am writing to advise that the members of the Implementation Body noted at their recent meeting of 3 March 2011 the recent recommendation of the Labour Court (LCR 19995) in relation to compensation for loss of earnings under the Public Service Agreement (in a context other than redeployment).  The Court recommended that the compensation for actual loss of earnings arising from the new arrangements be calculated on the basis of 1.5 times the actual loss.  The level of loss should be established in each case by comparing earnings in a full twelve month period in which the new arrangements has been in operation with a corresponding period in which the current system operated.  On phasing, it was recommended that 50% of the compensation due should be paid 12 months after the new arrangement became operational, with the remaining 50% of the amount due paid six months thereafter.

The members of the Body agreed to endorse this recommendation of the Court as the formula to be applied in cases of actual loss of earnings (in a context other than redeployment) under the Agreement to the Public Service Executive of the ICTU and to public service management in each sector”.  

Utilising this formula in the instant case it would not have been possible to calculate the actual (emphasis added) loss until July of 2020.

I have looked at the calculation completed just prior to this hearing and believe that the method of calculation is in accordance with the Labour Court Recommendation (LCR 19995) and endorsed by the Implementation Body.

The Complainant is due a compensation payment of €9,468.30 gross and this payment should be made to him within 42 days from the date of this decision.

The complaint under section 13 of the Industrial Relations Act, 1969 will be the subject of a separate recommendation.

As outlined above.

Payment of Wages Act, 1994. Compensation for loss of earnings.