FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES: BEAUMONT HOSPITAL - AND - A WORKER (REPRESENTED BY IRISH MEDICAL ORGANISATION) DIVISION:
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s) ADJ-00032922 CA-00043577. DECISION: The Worker is employed on a Consultant Contract on a half-time basis since 2008 and was absent for a period of leave from December 2014 until June 2017. On his return to the workplace, he engaged with his employer in relation to agreeing a work practice plan, and specifically sought to be excluded from the on-call rota. There was a protracted engagement to try to find a solution acceptable to both sides that was commensurate with a half-time contract. In December 2018 an option, which excluded an on-call commitment, was put forward by the hospital. This was acceptable to the worker. Some months later the worker was placed on the on-call roster by his colleagues within the area where he worked. The hospital said that circumstances had changed which required further engagement and that it could not continue to implement the arrangement previously agreed. A revised work practice plan was subsequently proposed to the worker in June 2019. This was rejected and the worker raised a formal grievance in relation to the matter in October 2019. The hospital’s position is that the revised plan is reasonable and consistent with the worker’s contractual working hours. The worker’s position is that the proposal was negatively disproportionate to his contractual hours. The outcome of the grievance process upheld the hospital’s position. The matter was referred to the Workplace Relations Commission in April 2021 and subsequently appealed to the Labour Court in March 2023. The Court has given careful consideration to the oral and written submissions of the parties. The Worker has undertaken the on-call duties allocated to him under protest and in good faith pending the outcome of the grievance process. The Court notes that the process has been a protracted one, which has been delayed further by the significant and unprecedented impact of the Covid-19 pandemic on the health services. The Worker now seeks that the Court recommend that he be excluded from the on-call roster. The IMO, on his behalf, asserts that his contract of employment should be read in conjunction with the agreement reached in December 2018 to operate a work practice plan that excluded on-call duties. His union further asserts that the nature of the work undertaken by the worker differs from his colleagues insofar as the majority of his work is in an outpatient setting. For its part, the hospital acknowledges that it put forward an option in 2018 that excluded an on-call commitment but says that circumstances changed which meant that it could not be implemented. It submits that the worker has a contractual obligation to participate in the on-call roster, and that the worker’s current on-call allocation is not onerous. In response to questions from the Court, the IMO accepted that the worker’s terms and conditions of employment are governed by his 2008 contract of employment, which in turn is governed by national agreements. The IMO accepts that it is a party to those national agreements. It is further accepted that the worker’s contract of employment provides for on-call duties, and that he receives an on-call payment as part of his contractual entitlements. In such circumstances, the Court’s view is that the worker has a contractual obligation to participate in the on-call rota, albeit on a pro-rata basis to his half-time hours. In the view of the Court, the key issue in dispute relates to the allocation of on-call hours, and what is a ‘reasonable’ on-call commitment in the context of this worker’s contractual obligations. Both sides acknowledge that work practice plans can change from time to time, depending on changes in circumstances within the Department or the hospital. This in turn can have implications for on-call requirements in specific areas. In this case a dispute arose on foot of the Hospitals attempt to accommodate a worker’s request, in circumstances where the on-call roster is decided and agreed upon between the group of workers (consultants) that operate that roster. With hindsight better engagement by the hospital with all parties to that roster may have prevented the escalation of this protracted matter. The Court notes that where a dispute arises in relation to a particular roster or work practice plan, that matter can be escalated to the Clinical Director who has the final say on the matter. The Court notes that the on-call hours currently worked by the Consultant meets the hospitals requirements. The Court further notes that both parties expressed a willingness to engage on the operation of the current roster. Having regard to all of the circumstances, Court recommends that the worker should continue to work the current level of on-call hours required. If there are matters arising in relation to the operation the on-call roster these matters should be addressed in line with normal procedures. The Court so recommends.
NOTE Enquiries concerning this Decision should be addressed to Therese Hickey, Court Secretary. |
