Investigation Recommendation Reference: ADJ-00039360
Parties:
| Worker | Employer |
Anonymised Parties | A Worker | A Hospital Group |
Representatives | Victoria Stephens SIPTU Trade Union | Imelda Cassidy HR Business Partner |
Dispute(s):
Act | Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | IR - SC - 00000310 | 27/05/2022 |
Workplace Relations Commission Adjudication Officer: Moya de Paor
Date of Hearing: 14/03/2023
Procedure:
In accordance with Section 13 of the Industrial Relations Act 1969 (as amended) following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute.
Background:
The Worker commenced employment with the Employer in 1991 as a Medical Laboratory Aide (MLA) with the Transfusion Laboratory with a hospital group. The Worker was offered an additional role which she commenced in October 2012 for which she worked approximately 29 additional hours per fortnight. By letter dated 8/7/2021 the Point of Care Co-ordinator acting on behalf of the Employer informed the Worker that she would not be required to work the additional hours from the 27/8/2021. The Worker contends that the procedures adopted by the Employer which culminated in the loss of her additional role were not fair and reasonable and the conduct of the Employer was unreasonable. The Employer refutes the allegations and submits that the dispute is misconceived. Both Parties were represented at the hearing and submitted comprehensive written submissions. The Worker was represented by her Trade Union, SIPTU and the Employer by the HR Business Partner. |
Summary of Workers Case:
The Worker commenced her employment in 1979. The Employer took over from the previous employer by way of a transfer of undertaking in 1991. The Employer provided the Worker with a contract of employment in 1991 as a permanent MLA on 35 hours with a particular laboratory with a hospital group. The Worker was offered an additional role as a Maintenance Gas Analysers (GA’s) in particular wards which she commenced in October 2012. The Worker refers to minutes of a meeting dated 5/11/2012 of a named Committee meeting as evidence of her recruitment and selection for this role. The minutes state “After advertising and selecting a suitable candidate the Worker (MLA) underwent the necessary training and now provides the cover necessary for the maintenance of the blood gas analysers in the………since 1st October 2012”. The Worker referred in her submission to the Expression of Interest which advertised the post by the Point in Care Co-ordinator. It is submitted that on the 8/1/2014 the Worker completed relevant training. By letter dated 1/2/2019 the Employer wrote to the Worker advising that her employment is confirmed at 35 hours a week and “red circled” and will be paid at a weekly rate in line with colleagues who work a 39 hour a week. It is submitted that the extra 29 hours biweekly worked in her additional role was not noted in the letter. Furthermore, the letter was sent while the Worker was on annual leave, and she was not invited to discuss the contents of same. The Worker was subsequently cc’d on letters relating to her additional role from the Point of Care Co-ordinator dated 6/10/2019 which was queried by the Worker. This query triggered several emails between the Worker and the Point of Care Co-ordinator regarding clarification of her role. By way of letter dated 27/5/2021 the Worker wrote to the Employer setting out in detail how she was appointed to the role and the duties of the role. By way of letter dated 8/7/2021 the Employer wrote to the Worker to inform her that HR have confirmed the following; - · There was no evidence of a campaign arranged by HR for the post of Medical Laboratory Aide (MLA) Point of Care in 2012. · There was no evidence in the Worker’s HR file of having competed for an alleged competition, .i.e. Application form, marking sheet, interview results etc. · There was no evidence in the Worker’s HR file of an offer for an additional role within Point of Care being made and/or accepted. · There was no evidence in the Worker’s HR file of any contract being issued for an additional role or … · There was evidence in the Worker’s HR file that correspondence issued on 1st February 2018 confirming her contracted hours of employment at 35 per week. This correspondence was not queried or challenged by the Worker at that time. · That the Point of Care Coordinator and the Laboratory Manger do not have oversight of the hours spent, duties undertaken or requirement to travel offsite for Point of Care. The letter further stated, “Despite your assertion that you hold a contract of employment for the post of MLA in Point of Care on addition to your pre-existing contract of employment for the post of MLA in…………. there is no evidence to support this”. The Employer outlined various changes to the Point of Care services across the hospital in the delivery of the service, in the above letter. Accordingly, the Employer stated that “due to the changes made within the Point of Care service delivery additional duties that you have outlined in your correspondence of 27th May 2021 are no longer necessary and therefore you will not be required to work additional hours from 27th August 2021.” It is further submitted that the Worker was approached by a Manger acting on behalf of the Employer who suggested an offer of additional hours in a named location however when the Worker enquired about the offer no hours were provided. The Worker contends that the Employer failed to follow fair and just procedures in determining the Worker’s employment to include her contract of indefinite duration in her additional role. Furthermore, the Employer failed to outline to the Worker at any time why she was no longer suitable to carry out these duties, that in fact she was asked to prove she was capable and the process in which the matter was handled was degrading to the Worker. In addition, the conduct of the Employer was characterised by a level of unreasonableness manifested in their actions throughout the process. The Worker contends that the “Haddington Road Agreement” provides an outline for changes in pay and productivity measures and additional working hours. It is contended by the Worker that paragraph 2.7 provides for “detailed consultation” at workplace level for the actual implementation of the proposals. It is submitted that no detailed consultation occurred regarding the decision to withdraw the additional hours from the Worker. It was submitted by the Worker’s Trade Union rep that when management first queried her additional role, it was as if no one was fulling the role and the Worker sought a meeting with management to clarify her role. At a meeting on the 28/4/21 with the head of the Point of Care the Worker’s Trade Union rep submitted that there was no recognition by management of the additional role that she was preforming. Furthermore, at the hearing it was submitted on behalf of the Worker that her sense of duty was being called into question by management due to their failure to locate paperwork to support the creation of the role. It was further submitted at the hearing that the inference from the Employer’s submission in regard to the fact that the Point of Care service is regulated under relevant ISO exhibited at the adjudication hearing, was that the Worker was not suitably qualified, yet this was never flagged to the Worker. The Worker confirmed that her pay for the additional hours was stopped on the 27/8/2021. The Worker confirmed at the hearing that she is seeking compensation as a remedy for the lack of fair procedures by the Employer throughout the process which culminated in the loss of her additional role. It was stated at the hearing that there was no offer made to upskill the Worker. The Worker confirmed that she was not advised through her line manager of additional hours, she was advised of a vacancy in reception which was at a different rate of pay and was not advised of the correct process to apply for the position. The Worker stated that there are limited opportunities for an MLA in terms of career progression as it is a highly regulated area. At the hearing the Worker stated that she will not be able to retire at 65 due to financial pressures and will be required to keep working. |
Summary of Employer’s Case:
It is submitted on behalf of the Employer in respect to the background to this dispute that the national standard hours of work for the Worker’s grade are 39 hours per week. However, following an agreement negotiated locally by SIPTU in 2019 the Worker works 35 hours per week on a “red-circled basis” and continues to be paid for 39 hours each week. It is further submitted that the Worker has always worked these contracted hours in the named location, as this is and always has been her normal place of work. It is submitted that the Point of Care service (POCT) also sits within a particular department within the hospital group and is established and regulated under the relevant ISO. It is set out that overall responsibility for the provision of POCT for the hospital is delegated to a specialist medical scientist. In 2019 a Point of Care Coordinator was appointed with the specific remit of supporting the entire hospital group and to bring the service in line with the Department’s Strategy. It was outlined that per the Public Service Stability Agreement 2018-2020 and the need to deliver greater productivity changes were introduced to the POCT and these were advised to the Worker at different stages throughout the process. It is submitted on behalf of the Employer that in 2012, following recommendations by HIQA changes were introduced to POCT provided within the hospital group and in particular at the hospital in question. This resulted in additional hours being approved to provide an out of hour’s service at the hospital. It is submitted that at that time, the Worker elected to work these hours, in addition to her contracted hours of employment within a particular Laboratory. It is stated that the Worker worked, and was remunerated for, an average of 14.5 hours each week in addition to her contracted hours of employment. In the Worker’s correspondence of the 27/5/2021, the Worker suggests that she was offered an additional post in Point of Care to maintain analysers. It is submitted that “despite a thorough search of all HR records there is no evidence that a recruitment competition took place in 2012 to fill this post. During the search of recruitment records, a draft undated Expression of Interest (EOI) was discovered. There is no evidence that the EOI was progressed and no contract in respect of this post was issued”. It is further submitted that on the appointment of the POCT Coordinator in 2019, changes and enhancements were routinely rolled out to the operational process to ensure compliance with the relevant ISO, the international standard for point of care testing. When the Worker raised queries in relation to the changes in an email of 7/10/2019 the POCT Coordinator did offer to meet with her to discuss same, but the Worker declined the offer. It is submitted that the Employer’s records show that the Worker continued to be paid in respect of additional hours until 2021. A virtual meeting took place with the Worker and her representative on 28/4/2021 in relation to the additional duties. At that meeting it was agreed that the Worker would submit details of the duties undertaken and how the role had changed since the appointment of the POCT Coordinator. A response was issued by the Worker on 27/5/2021 where it is claimed by the Worker that by removing the additional hours assigned to POCT the named health care service has breached the ‘Recognising and Respecting the Role, Support Staff’ agreement. It is also claimed that the particular service failed to outline to the Worker at any time why she was no longer suitable to carry out these duties. It is submitted that correspondence issued dated 8/7/2021 from the POCT Coordinator to the Worker, which stated the rationale for the changes. The following changes were cited in the letter among others: - · Documented weekly review of Point of care instrument consumables by Point of Care Co-ordinator and/or the Biochemist assigned to Point of Care this eliminates the requirement for out of hours’ intervention. · Ongoing efforts by the Point of Care Co-Ordinator to consolidate the duties to deliver the service within the working day between the hours of 08.00 to 17.00 Monday and Friday for the hospital group in line with the strategy for the development of a consistent service across the group within INAB standards. · External quality assurance remains within the scope of practice of CORU registered medical scientist/biochemist only as specified by the relevant ISO of 2012 and 2016. It is stated by the Employer “While there was no longer a requirement to provide an out of hour’s service for the POCT from August 2021 there was still a requirement to cover additional hours within the ………… Department”. It is submitted that throughout 2021 there was approval in place for 80 additional hours each month and these additional hours were available to all staff, irrespective of grade, on a voluntary basis. It is stated that the Worker was made aware of these hours but there is no record that she availed of this as an option to supplement any potential loss of earnings. In conclusion it is submitted by the Employer that managing medical laboratories is a very complex and challenging field with high volume testing in each speciality on a daily basis. Accordingly, it is argued that it is inconceivable that anybody could be expected to manage 4 labs in addition to their normal days’ work. It is further submitted that “the Worker has consistently indicated that she was offered an additional post in POCT in 2012, however, there is no record that a recruitment competition for the post took place or that the post was offered to any candidate. The draft EOI clearly states that the post would be encompassed into the successful candidates existing terms and conditions”. It is further outlined by the Employer that “the nationally agreed hours of work for an MLA is 39 hours per week and an additional 14.5 hours would have meant a total working week of 53.5 hours which would have breached the Organisation of Working Time Act (1997). In addition, under the Safety Health and Welfare at Work Act (2005) there is a responsibility on the Respondent to take reasonable care to protect the health and safety of employees which would include having reasonable and regular rest periods.” In conclusion it is submitted by the Employer that it was not the case that the Worker was no longer suitable to carry out the duties but rather that the duties changed and were consolidated and coordinated so that they could be completed during core hours in line with service demands. Furthermore, as the Worker was already undertaking her duties as a MLA in a particular laboratory during this time she was no longer available to support the POCT service. In addition, it is submitted by the Employer that the Worker is a respected and valued employee but, regrettably, the Employer takes the view that her complaint is misconceived. It is further submitted that the Worker undertook the delivery of the service on a voluntary basis and, as the service was modernised and enhanced, the service was no longer required outside of core hours. These changes and the importance of adhering to the ISO and INAB standards were regularly communicated to the Worker. It is submitted that the Employer strongly denies the claim and it cannot reasonably maintain that the Worker felt degraded by the way the issue was handled as she was communicated with on a regular basis. It was submitted on behalf of the Employer at the hearing that it could not find any documents to show that there was a recruitment process in respect of the original role. It was submitted that in 2019 changes were required by HIQA and INAB and, in order to meet the demand for their services, software processes were introduced to oversee remotely the operation of the relevant machinery. In this regard it was stated that the Employer was trying to deliver the Point of Care service within office hours from Monday to Friday. The Employer stated that it invited the Worker to a meeting in 2019 to discuss the changes but she did agree to attend. It was highlighted that a Point of Care Co-Ordinator was appointed in 2019 whose task was to consolidate the service and ensure that it could be delivered within the core hours of 9am-5pm. It was further stated that additional hours in the hospital were available as there was an acute staff shortage. |
Conclusions:
In conducting my investigation, I have listened to and considered all relevant submissions both written and oral presented to me by the parties.
This dispute arose as the requirement to carry out a particular service in particular wards which the Worker commenced in October 2012 changed. For various reasons including the fact that the Employer wanted to consolidate the duties to deliver the service within the working day Monday to Friday, the need for an out of hours service was no longer required. The Employer informed the Worker by way of letter dated 8/7/2021 that she would “not be required to work additional hours from 27th August 2021.” The Worker stated that her pay for this role stopped on the 27/8/2021. The Worker’s Trade union representative submitted that the Employer failed to follow fair and just procedures in determining the Worker’s additional role. The Employer strongly denies the claim for the reasons outline above.
My role here is to examine the procedures that the Employer utilised and to determine whether they meet the standard of fairness and reasonableness. I am mindful that both parties are in a live working relationship, therefore, my role here is to try and assist the parties reach a resolution of the dispute. It is my view that the Employer is entitled to restructure the delivery of its service in Point of Care in respect of the particular service for various reasons including to ensure compliance with regulatory requirements and the Employer has relied upon the relevant ISO of 2016, the international standard in Point-of-Care testing in this regard. Furthermore, the Employer wanted to change the way the service was delivered from an out of hours service to enable its delivery within the core working hours of Monday to Friday, which it is entitled to do. However, the Employer is also obliged to ensure that a transparent, fair and reasonable consultation process is set out and implemented which allows the Worker to provide input into the process, challenge the proposed restructure and put forward alternatives in this regard. Having considered the parties submissions in relation to the facts of this dispute, I find that the Employer, while entitled to restructure its service for the reasons outlined above, did not follow a fair and reasonable consultation process. I find merit in the Worker’s submission that the Employer failed to employ fair and just procedures in determining the Worker’s employment regarding her additional role. I am of the view that the approach adopted by the Employer regarding this matter was unhelpful and unreasonable. It appeared at the hearing that this approach had a significant impact upon the Worker who is a long-standing employee with 44 years’ service, whose representative submitted that the Worker felt that her sense of duty was being called into question. The Employer set out its position in correspondence resting with its letter dated 8/7/2021, in regard to the recruitment, selection and appointment of the Worker highlighting that there was no evidence of a recruitment process arranged by HR, of an alleged competition i.e. application form, interview results, of an offer being made for the post or its acceptance, or of a contract being issued for the additional role. It is well established that the obligation to ensure a fair, transparent, and non-discriminatory recruitment process is adhered to, rests with an employer, stemming from various employment rights statutes. Furthermore, in line with best practice an employer should retain records of the process for various reasons including as proof that a fair and transparent process was adhered to. I note that the Worker was furnished with a contract of employment in 1991 for her role as a permanent MLA but that no changes to the contract were issued to her on foot of her additional role as required by employment legislation. The Code of Practice for Appointment to Positions in the Civil Service and Public Service 2017 published by the Commission for Public Service Appointments pursuant to the provisions of the Public Service Management (Recruitment and Appointments) Act 2004, is instructive as it sets out the principles to be observed in respect of both external and internal appointments to positions in the civil and public service including the Health Service Executive. In this case I note that the Employer seeks to rely upon a defence which highlights gaps in their own recruitment and employment practices. It is my view that the inference from the Employer’s correspondence and submission at the hearing was to try to shift the onus for carrying out such a process and for keeping records onto the Worker by inferring that in the absence of documents on their behalf, the Worker needed to produce documentary proof to demonstrate that a recruitment and selection process occurred in 2012. The Worker’s trade union representative made a request in December 2022 to the Employer through the Freedom of Information Act 2014 seeking relevant documents including the Expression of Interest for the Point of Care position in 2012. This request was firstly refused by the Employer by way of letter dated 13/1/2023. However, by way of a second letter dated 7/2/2023 the Employer found the relevant document, Expression of Interest for Point of Care (0.5WTE) which was released and exhibited by the Worker, the Employer apologised for their previous oversight in this regard. However, despite the fact that this document existed and was furnished by the Employer to the Worker’s representative, the Employer still argued in their submission that “There is no evidence that the EOI was progressed “ and reemphasised this position at the hearing when it’s representative stated “ no documents were available to show that there was a recruitment process”. The Worker’s Trade union representative also highlighted minutes from a meeting dated 5/11/2012 of a named Committee confirming the recruitment and selection of the Worker for the additional hours which were released to the Worker pursuant to a data access request. I note that these minutes were within the Employer’s remit which in my view confirm the recruitment and selection of the Worker for the role 2012. I agree with the Worker’s representative who submitted that the conduct of the Employer was characterised by a level of unreasonableness for the reasons outlined above. I am of the view that there was a lack of clarity regarding the Worker’s appointment to the role in 2012 because she was not provided with a statement of her terms and conditions regarding that role, and that the consultation process does not meet the standard of fairness and reasonableness. I am also of the view that the Employer could have adopted a more constructive approach to this matter in view of the live working relationship in line with best practice in industrial relations matters. The Worker’s Trade Union representative submitted that the employer was in breach of the Haddington Road Agreement on the basis that this agreement at paragraph 2.7 requires “detailed consultation at workplace level” regarding the implementation of proposals regarding productivity measures and additional working hours. It is my view that the Agreement is not applicable to this dispute because the Worker applied for the additional hours and was paid for all additional hours worked. I note from the Worker’s submission that the loss of pay for the additional hours has impacted her financially and she stated that she will not be in a position to retire at 65. I also note her comments that she did seek out other options in respect of working additional hours, but no offer was forthcoming in this regard. I note that the loss of additional hours has impacted the Worker’s weekly pay by way of reduction of the pay for 14.5 hours per week which will also impact upon the Worker’s pension entitlement. I note the Employer’s comments that the Worker is considered a valued and respected employee, and I found the Employer at the hearing to be open and willing to assist the Worker in her efforts to upskill herself. It was agreed at the hearing between the parties that the Employer would assist the Worker if she wished to apply for recognition to CORU for an assessment of professional competence. It was also agreed regarding other opportunities that in the interests of clear communication that the Worker’s line manager will inform her of any opportunities that may arise. Accordingly, I find merit in the Worker’s claim, and I recommend in her favour. I recommend that the Employer; - · Considers an application from the Worker to apply for recognition to CORU for an assessment of professional competence to enable the Worker to upskill herself to the required standard. The Employer agrees to make every effort to support and assist that application. The Worker’s line manager is to be the nominated point of contact for the Worker to progress the application, if study leave is required, same will be provided in line with the Employer’s policy in this regard. · In the interests of clear communication, the Worker’s line manager will inform the Worker of any opportunities that arise. · Reviews and updates its policies and procedures on recruitment and appointment of staff and regarding record keeping in line with best practice. · Pays the Worker compensation of €10,000. |
Recommendation:
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.
For the reasons set out above, I recommend in favour of the Worker. I recommend that the Employer; -
- Considers an application from the Worker to apply for recognition to CORU for an assessment of professional competence to enable the Worker to upskill herself to the required standard. The Employer agrees to make every effort to support and assist any application. The Worker’s line manager is to be the nominated point of contact for the Worker to progress the application, if study leave is required, same will be provided in line with the Employer’s policy in this regard.
- In the interests of clear communication, the Worker’s line manager will inform the Worker of any opportunities that arise.
- Reviews and updates its policies and procedures on recruitment and appointment of staff and regarding record keeping in line with best practice.
- Pays the Worker compensation of €10,000.
Dated: 18/08/2023
Workplace Relations Commission Adjudication Officer: Moya de Paor
Key Words:
Fair and reasonable consultation process- restructure- |