Employee

Employer

Anonymised Parties

A Director of Nursing

A Health Service Provider

Representatives

Dave Curran, SIPTU

 Not represented

Act

Dispute Reference No.

Date of Receipt

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

CA-00041947-001

12/01/2021

DN has worked for this employer since 1984 and is currently a Director of Nursing in a health speciality in Dublin.  In 2011, an agreement was reached on changes to rosters and the introduction of an on-call service from 8.00pm to 8.00am to be provided by Senior Nurse Managers, Assistant Directors and Directors of Nursing.  The objective of the changes was to ensure that appropriate cover was available across the service on a 24 hour / seven day basis.  This dispute concerns the withdrawal of approval in July 2016 for DN for one hour of time off in lieu for each night that she is rostered on-call. 

In Mr Curran’s submission, he outlined the background to the practice of approving one hour of time in lieu for each night on-call.  He said that this practice was approved by a Director of Nursing for her group of managers, going back to 2003.  A letter dated June 13th 2003 submitted at the hearing shows that an annual on-call allowance of IR£3,000 was introduced in 2000, which, with the application of increases since then, is now around €6,000. 

A document submitted by Mr Curran shows that, in February 2011, in the context of the reconfiguration of the service where DM works, agreement was reached between management, Directors and Assistant Directors of Nursing and Senior Nurse Managers, to provide on-call cover between 8.00pm and 8.00am for one night out of six.

In 2011, when DN was appointed as an interim Director of Nursing, she reported to the Area Manager, who approved her claim for an hour in lieu for each night she was on call.  This continued when a new Area Manager was appointed in July 2014.  However, a document produced for the hearing shows that, on October 1st 2015, the Area Manager informed DN that she would no longer approve the time off in lieu for any staff in DN’s area, saying that it was not provided for in any national agreement.  DN then stopped approving the leave for the five Assistant Directors of Nursing who reported to her.

On October 8th 2015, an Assistant Director of Nursing wrote to DN to ask for a meeting to discuss the time off in lieu, which he said, was “custom and practice over the last four years.”  In December that year, the same Assistant Director of Nursing wrote to the Area Manager and informed her that he and his colleagues had sought advice from their union, the Psychiatric Nurses Association (PNA), and that they intended to continue to claim the time off in lieu, as proper procedure had not been followed regarding the withdrawal of the benefit.  This resulted in a meeting on January 25th 2016, between the PNA and management.  ER also attended this meeting at which it was agreed that the time off in lieu would be reinstated until a solution was agreed nationally.

Following this meeting, the Area Manager continued to approve the time off in lieu for DN and DN continued to approve the leave for her team.  However, when a new Area Manager came into the role in July 2016, she refused to approve the time off in lieu for DN, although DN approved the leave for her own team, and it was approved for other Directors of Nursing around the country.

DN has continued to provide on-call cover since July 2016, without compensation of time off in lieu.  At the hearing, she said that she has covered the on-call commitment of a member of her team who has been absent due to illness for more than a year, and she has covered for colleagues on other types of leave.

While there have been local discussions about the failure to reinstate this benefit for DN, no resolution has been reached.

Management will not approve the time off in lieu for DN because it is not provided for in a national agreement, but Mr Curran said that agreement was reached on the issue in February 2011 with the nurse managers in DN’s area.  It seems that she is the only Director of Nursing in her geographical area who does not receive this benefit.  Also, she approves the time off for the five staff who report to her, but she does not receive the benefit herself.  While Mr Curran said that different local arrangements apply across the country, it appears to be the norm that Directors of Nursing receive one hour of time off in lieu for each night of on-call.

No explanation has been provided regarding why DN is not approved for this benefit.  She has provided extensive on-call cover since 2016, without the benefit the time off in lieu, a benefit which is enjoyed by 14 of her colleagues, including the five managers who report to her.  In discussions in January 2016, with the PNA, it was agreed that the current arrangement would prevail, and this is the case for everyone but DN.

On the basis of the roster of one day in every six on-call, the time off in lieu works out at eight days of additional annual leave every year.  In January 2021, DN had accrued 48 days of leave in respect of the on-call cover she provided from 2016.  She will have accrued additional days up to the date of this recommendation.  In the interest of fairness, Mr Curran requested that DN be approved for this leave, to be taken in consultation with her manager over a reasonable period of time.

At the hearing, ER said that there is no dispute about the facts regarding this grievance.  DN is paid an on-call allowance for providing out of hours and weekend cover.  He said that the on-call payment (now €6,000 per annum) was formalised in a letter of June 13th 2003 which he provided in advance of the hearing.  There is no mention in this letter of time off in lieu.

At the hearing, ER said that this allowance is not paid nationally, and has been contingent on the availability of budgets in each healthcare region.

Following the recent settlement of a dispute with the Area Directors of Nursing, on-call is now the subject of national negotiations.  ER said that it is uncertain when these negotiations will be finalised.  HE agreed that the outcome of the January 2016 meeting, which he attended was that the “status quo” was to prevail until the issue was dealt with nationally.  He said that it is now on the national agenda.

Concluding the employer’s position, ER said that the payment of time off in lieu for being on-call is not supported by any national agreement.  He said however, that there is an anomaly in the fact that DN is doing the on-call duty and not getting time off in lieu in the same way as her colleagues and the staff who report to her. 

At the hearing, DN said that she has no idea why the Area Manager decided to stop approving the time off in lieu in October 2015.  She said she also doesn’t know why the benefit was continued until May or June 2016.  The new Area Manager then refused to approve the benefit, explaining that the previous Area Manager said that there was no provision for the payment in any agreement.

After the meeting in January 2016 with the members of the PNA, DN was instructed to approve the allowance for her staff.  However, when she applied for the time off in lieu herself, it was refused.  At the hearing, both sides acknowledged that members of the PNA have benefited from the maintenance of the “status quo” position, whereas, DN, as a member of SIPTU, has not been treated in the same way.

I agree with ER, that, in the agreement of February 2011 (signed in June 2011), there is no specific provision for time off in lieu of one hour for every night of on-call.  Neither does the letter of June 2003 refer to time off in lieu.  However, a close reading of the February 2011 agreement assumes that time off in lieu is a feature of working on-call, while not specifically provided for.  It is referred to as if the parties to the document understand that it is a benefit provided on top of the monetary allowance.  From our discussions at the hearing, it is clear that all the employees who consider themselves to have an entitlement to time off in lieu, are approved for time off in lieu, apart from DN.

At the conclusion of the hearing on January 19th 2022, it was apparent that DN, as a member of SIPTU, has, since 2016, been treated differently to her colleagues in the PNA.  As the only factor that differentiates her from her colleagues who are approved for the benefit, this seems to be inherently unfair.

I understand that, following the settlement arrived at in the Labour Court regarding a dispute between the Directors of Nursing and the employer, talks will now commence to address the manner in which the on-call service is remunerated.  It seems to me that, pending the conclusion of those talks, approval for one hour of time off in lieu for every night on-call should be reinstated for DN.

I recommend that the employer reinstate the employee’s entitlement to one hour of time off in lieu for every night of on-call service.  I further recommend that the employer consider that the employee has been approved for the taking of one hour of time off for every night of on-call service she has worked from July 2016 until the date of this decision.  Finally, I recommend that arrangements are put in place for DN to take the accrued leave over a period of up to four years from the date of this decision.

Grievance, on-call, time off in lieu