Complainant

Respondent

Parties

Nigel  McCoy

St. James's Hospital

Representatives

IBEC

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00054314-001

29/12/2022

The complainant successfully applied for a position with the respondent and the start date was set for January 9th, 2023. 

After a successful interview, he was told that he would be asked to work regular pre-planned shifts of 16 and 24 hours in duration.   These would be intense clinical on-site shifts.

In his view they are unsafe for doctors and for patients.

Under the Organisation of Working TimeActtheyarenotpermittedas he wouldnotbegettinga dailyrestperiod.

ThereissomeprovisioninS.I.No. 494/2004 for compensatory rest in exchange for a lack of rest period in "exceptional circumstances or an emergency".

Thisprovisionclearlydoesnotapplytoasituationwheresuchshiftsarepre-plannedandscheduled inadvance.

He informed the employer that due to their stance he was refusing to agree to these conditions and said he was willing to work an average forty-eight hour week and would exceed those hours in any week at times when the service requires this.

He was also willing to work nights, weekends and bank holidays as required and of course would be happy to forego a rest period in the event of truly exceptional circumstances or emergencies.

He says that he isnotwillingtoworkunsafe,unethical,andillegalshifts.

The employer has informed him that they will not offer any other arrangements.

He said that he was aware of the derogation under the organisation of Working Time Act, but he believed that this was being wrongly interpreted by the respondent. The criteria required for the derogation were not being met.

The WRC does not have jurisdiction to hear this complaint as the complainant is not, and has never been, an employee of the respondent. Therefore, no breach of the legislation could have occurred.

In the WRC claim form the complainant submits that that he has been employed by the respondent since December 29th, 2022 and alleges that he did not get a daily rest period.

This is not correct and he has never been employed under a “contract of employment” and therefore no jurisdiction exists under the Act for the complaint to be heard by the WRC.

The complainant has never been included on any of the company’s HR systems including company payroll or the clocking system utilised to record hours and generate payroll, nor has he ever worked any hours with the Respondent.

Therespondentsubmitsthatthesemattersbeaddressedasapreliminaryissue toberesolvedattheoutsetofthishearingandrelianceisplacedonthedecision of the High Courtin The MinisterforFinance v. The Civil andPublic Service Union[2006]IEHC14

In that case Ms JusticeLaffoyclearlystatedthatitisreasonable to assume that the Oireachtas envisaged that the Labour Court would manage itscaseloadinasensiblemannerandthatwhereadecisiononanetissuemight resolve a dispute that it would deal with that net issue as a preliminary point.

It is submitted that this is the position here and the adjudication officer should address these preliminary matters at the outset of this hearing and without the need for submission of the substantive claim.

The position regarding the complainant’s employment status, and therefore his legal standing to pursue this complaint is as set out by the respondent above and was not disputed by the complainant during the hearing.

He did select a date of commencement on the complaint form (December 29th, 2012) even though he never took up the offer of employment. Also, on the section of the form requiring further information he selected the option indicating that he ‘did not get a daily rest period’.

But in the information submitted on the form in the ‘Specific Details of the complaint” he does not actually suggest that he commenced employment.

Quite why he submitted the misleading information referred to is not clear. Indeed, why the complainant persisted with the complaint to a hearing is a mystery.

He is a consultant physician and must surely have understood the simple requirements of making a complaint in circumstances where he never actually took up the employment under which he alleges a detriment. If he wished to make a protest about working conditions of hospital doctors this is not the way to do it.

In any event, I find that the complainant was never an employee of the respondent, and therefore could never have been denied daily rest periods as alleged.

The complaint is entirely without merit but, for the avoidance of any doubt I find as a preliminary matter that it is not within jurisdiction, and it is not well founded.

For the reasons set out above complaint CA-00054314-001 is not well founded.

Key Words: Jurisdiction, Not an employee.