Worker

Employer

Anonymised Parties

A Hospital Porter

A Hospital

Representatives

Vivian Cullen SIPTU-Trade Union

Cait Lynch IBEC

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 - 00000946

19/12/2022

The Worker raised an internal grievance regarding his terms and conditions of employment. This grievance was pursued at all internal levels and ultimately was not upheld. The Worker referred the present dispute for investigation. A hearing took place at the Offices of the Workplace Relations Commission at 11 am on the 10th of May 2023. The Worker was represented by SIPTU. The Hospital was represented by IBEC and representatives of senior management were also in attendance.  

The worker making this referral (“the Worker”) is employed by the Hospital as a Theatre Porter. He commenced employment with this Hospital in March 2017 initially as a Relief Porter.  In April 2021 he took up his current role as a Theatre Porter. In November 2021 the Worker’s overtime declined but he was not compensated for this in the same way as other porters. He raised an internal grievance regarding his terms and conditions of employment which he contended, were less beneficial than those of an identified comparator doing the same job. This comparator was included in a management-union agreement made with a group of porters and because of the comparator’s inclusion in that agreement, that comparator who did exactly the same work, received more beneficial terms and conditions of employment. The Worker initiated and fully pursued an internal grievance between April and June of 2022 in relation to the issue, but the grievance was not upheld.

The Worker contended that there was no reasonable basis to exclude him from the more beneficial terms enjoyed by his identified comparator and he sought by way of desired outcome:

1. A payment representing past losses arising from a differential as between what he earned and what he should have earned had he been afforded the benefit of the agreement in the same way as the identified comparator.
2. A recommendation that his pay rates be adjusted into the future to afford him the benefit of the agreement in the same manner as the comparator.

It was agreed that the Worker has in excess of 16 years’ service arising from the carrying over and aggregation of previous similar service with other hospitals.

The Hospital is a “Section 38 Organisation” and for this reason is constrained by National Pay Scales negotiated with the H.S.E. which is the main source of the Hospital’s funding.

The Hospital referred to an agreement (hereafter referred to as “the Agreement”) which was dated the 30th of July 2021 and took effect on the 1st of September 2021. The Agreement was the outcome of management-union negotiations in relation to certain workers whose work needed to be brought into line with the requirements of the Organisation of Working Time Act. When the negotiations commenced, all relevant workers within the undertaking of the Hospital, whose terms and conditions of work required amendment, were identified. At this time the Worker referring the present dispute held a position which was not the subject matter of the negotiations. However, after the negotiations commenced and before they concluded, the Worker took up a position which was covered by the Agreement but as he was not part of the original ‘red circled’ group of workers identified at the commencement of the negotiations, the Agreement did not include him as a red circled worker. It was also contended that the Worker had accepted his present terms of employment when he accepted the offer of the position from the Hospital.

The parties and their representatives engaged in a professional and courteous manner with each other and with me during the hearing. The Hospital very properly took the opportunity at the hearing to acknowledge the important contribution which the Worker makes to its work.

It is fully understood that this Hospital, being a “Section 38 Organisation” is constrained by National Pay Scales negotiated with the H.S.E. which is the main source of the Hospital’s funding. However, this dispute relates to a specific agreement regarding workers at a specific grade in respect of whom a management-union agreement (“the Agreement”) was finalised on the 30th of July 2021 and took effect on the 1st of September 2021. The Agreement, I was informed, was approved by the H.S.E. The present dispute relates solely to the issue as to whether the Worker who has initiated this referral should have been included as one of the workers receiving the benefit of the terms set out in the Agreement. It does not involve the setting of different pay rates for all workers but only those who are or should be covered by the agreement and where a worker is covered by the Agreement his terms of employment should be in accordance with that agreement. 

In this particular case, the Worker was not a Theatre Porter when the management-union negotiations (which led to the conclusion of the Agreement) began. However, he did become a Theatre Porter in April 2021 and the Agreement was concluded in July 2021. It appears that his exclusion during the negotiations was an oversight, it would seem, on the part of both parties to the union-management negotiations, and it was not contended that there was any other specific reason why the Worker was not identified as one to whom the Agreement should have related. Insofar as the Hospital relies on the fact that the original workers were red circled and the Worker was not, I do not accept this logic since any red circling could only have applied at the time of conclusion of the agreement and it is clear that when that occurred in July 2021,  the Worker had become a Theatre Porter to whom the Agreement should logically have applied as it did to the identified comparator who it was accepted, was doing identical work to the Worker.  I take the view that when the Worker agreed to the terms of his appointment in April 2021, he was unaware of the anomaly arising from the difference between his terms and conditions and those of the comparator and when he did become aware of the issue, he raised his grievance. In such circumstances the Worker cannot reasonably be deemed to have accepted the situation by agreeing to the terms in July 2021.  

The result of the foregoing anomaly for the Worker is that his terms and conditions have been and continue to be less beneficial than those enjoyed by an identified comparator doing the same work which is unfair and inequitable - albeit that this outcome was clearly unintended. 

Details of the calculations of the Worker’s losses were discussed and agreed at the hearing and are reflected in the recommendation below.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties and my recommendation for the resolution of this dispute is as follows:

(a)    That the Hospital acknowledge that the Worker’ terms and conditions of employment should have been and now are covered by the Agreement,

(b)    That the Hospital make a lump-sum payment to the Worker of €14,000 within 28 days of this recommendation by way of back-pay (and thus subject to tax) representing losses sustained as a result of the anomaly,

(c)     That arrangements be made by the Hospital within 28 days of this recommendation to amend the Worker’ s pay and conditions insofar as possible, to bring the same into line with the Agreement.

(d)    That the Hospital would engage with the Worker and/or his Trade Union or other advisors if and to the extent necessary, to ensure that all payments made on foot of this recommendation are tax-efficient and in compliance with all existing Hospital payroll regulations.

Section 13 of the Industrial Relations Act, 1969 – Pay anomaly arising from exclusion of worker from union management agreement – back pay