Complainant

Respondent

Anonymised Parties

A Worker

A Hospital

Representatives

Martina Weir Siptu - Works Rights Centre

 Paul Hume HR Manager Saolta

Act

Complaint/Dispute Reference No.

Date of Receipt

Industrial Relations Acts

CA-00057018

7.06.2023

In his complaint form the complainant stated that he was seeking a resolution to an impasse which had resulted in his being denied the opportunity to return to his normal role as Theatre Operative in Orthopaedics at his hospital. The claimant is of the view that this has arisen as a result of a separate dispute regarding equipment that had been introduced into the theatre The claimant contended that he was now suffering an ongoing loss of earnings and was concerned that his line is being permanently removed from him. He is seeking to have his financial losses addressed retrospectively and going forward. The respondent denied that the claimant was being treated any less favourably  than his colleagues. The respondent acknowledged that the claimant should not have suffered any loss of earnings from March 2022 when his status was changed to being on protective placement.

Introduction:

1.       This case is taken by SIPTU on behalf of our member Mr.M.

2.       Mr M is seeking a resolution to an impasse which has arisen through no fault of his, but which has resulted in him being denied the opportunity to return to his normal role as Theatre Operative in Orthopaedics at the Hospital where he is based

3.       He is seeking to have the resultant financial losses reimbursed and going forward that he either be returned to his normal area of work or his financial losses met, on a permanent basis.

4.       The latter would be in line with arrangements put in place for his work colleagues who found themselves in a not too dissimilar situation, having been placed on Protective Leave.

General Background:

5.       The complainant commenced employment as a Theatre Operative in Orthopaedics at his base  Hospital on 8/08/2005.

6.       Over the following 16 years he worked a set line in Orthopaedics, on a 39 hours per week basis, and in addition was rostered to work 2 weekends in five.

7.       He was paid fortnightly at a basic rate of €838gross per week.

8.       He would also have access to any overtime lists which were issued and would have mostly used this as Time off in Lieu.

9.       He reported to the Theatre CNM3 or their replacement cover.

10.   He has been part of the SIPTU Shop Steward Committee at the hospital for many years and has worked with management in successfully resolving many Industrial Relations issues over that time.

Case History:

11.   In April 2020, at the onset of the Covid 19 pandemic, Mr M -following assessment by Occupation Health, -was moved out of Orthopaedics due to an underlying medical condition.

12.   He transferred at this time to General Theatre duties which resulted in a change to his roster, in that he no longer worked week ends and overtime opportunities were far reduced.

13.   His normal pay was substantially reduced as a result of this move, as he no longer had opportunity to work the more beneficial conditions associated with his normal roster [Line] in Orthopaedic Theatre.

14.   In March 2022 the overall Covid 19 restrictions, which resulted in Mr M’s transfer, were lifted and gradually those who were subject to protective measures were returned to their normal rosters and areas of work, bar a small number who had specific needs.

15.   Mr M had believed that he would likewise be returning to normal working and normal earnings, but when he asked about this, he was told that he could not be returned to Orthopaedics, while an Industrial Dispute, between Orthopaedic Theatre Operatives and Management was ongoing.

16.   Mr M was one of the SIPTU Shop Stewards involved in the dispute negotiations around Health&Safety  best practice for Theatre Operatives, and who represented union members at the Workplace Relations Commission.

17.   He recalls being concerned when, at one of these early inhouse off-shoot meetings {29/03/2021} he vocalised his views on the subject matter of the dispute, and this was met with pronouncements that neither he nor his colleagues involved in the dispute would be returning to their roles in Orthopaedic Theatre.

18.   Mr.M specifically asked that these comments from across the table would be recorded in the Minutes of the meeting.

19.   However, when he later sought a copy, he was told by management that they had been misplaced, they have never since been provided.

20.   He has however been told this informally on numerous occasions over the following months.

21.   Mr.M was at that time absent for Covid related reasons, but other colleagues who were involved in the dispute were soon after sent home by management.

22.   While these colleagues are now back at work, they have not been returned to their Orthopaedic Theatre Lines but placed in other areas, on what SUH is calling “protective leave”, however, unlike Mr M, they are being treated as if they are still working in Orthopaedic Theatre and can be seen on the roster.

23.   Therefore, their financial losses are being met without the requirement for them to fulfil the requirement to work weekends.

24.   This does show that the intent behind the comments made at the 29/03/2021 meeting was followed through.

25.   Since 1st March 2022, there has been no Covid related [or any other] impediment to Mr M’s return to Orthopaedics and to the level of earnings he had enjoyed prior to this temporary transfer.

26.   Since April 2022 Mr.M has made numerous verbal requests to various Nurse Managers to return to normal working, given that the reason for his initial move, no longer existed.

27.   Unfortunately, he made no headway, so Mr.M started to email Mr Paul Hume Employee Relations Manager for the  Group.

28.   In emails that were exchanged between Mr.M and Mr Hume in May of 2023, it seems clear that the  respondents were of the view that Mr.M was already being paid the loss of earnings associated with the move from Orthopaedics.

29.   However, despite establishing that he was not being paid this, nothing was done to rectify the matter.

30.   Mr.M became aware that had been replaced, on the Orthopaedics Theatre Roster but received no response to his concerns around the loss of the “Line” he held in Orthopaedics, for over 16 years. [p12]

31.   If this is the case, then this is a serious breach of Mr M’s terms and conditions.

! There is an agreed rostering system for Orthopaedic Theatre Operatives in place. [p14-19] “Lines” i.e., permanent roster and set hours, are very much sought after. They provide stability and the ability to plan ahead, for many who would have precarious arrangements around their hours and areas of work. Any vacancies arising would result from a staff member retiring or leaving the job. However, this would be known to operatives and those interested would be given the opportunity to express an interest and would be filled on seniority of service basis.

Case:

32.   Mr.M firmly believes that the refusal [by inaction] of the Hospital Management to return him to the Orthopaedics Theatre roster, is being driven by the underlying issue of the Industrial Dispute.

33.   He has been told this, but no formal response has issued to his written complaints.

34.   This dispute which was/is collective is not the subject matter of today’s hearing, but is linked to the situation Mr.M finds himself in.

35.   The ending of this dispute took some time to achieve and is still a work in progress, but the Orthopaedic Theatre Operatives who took this initial stand remain banished from their normal “Lines”, but their associated financial losses are being made up by the hospital.

36.   Mr.M remains banished but, in his case, the associated losses are not being met by the respondent .

37.   Of about 5 involved, this will be the third case to come before the WRC for Adjudication

38.    The other two complainants having been successful, receiving both operational and financial settlements as compensation for losses, and for the unfair treatment which resulted in these losses.

39.   As of today, Mr.M has received no outcome to his request to be moved back to his normal job in Orthopaedic Theatre.

40.   His efforts to receive an explanation for the refusal to allow him to return, have been frustrated.

41.   The consequence of all of this is that Mr.M has a financial loss of earnings based on the loss of opportunity to work one weekend in 5 and which was available to him for his16 years on a set “Line” in Orthopaedic Theatre.

42.   Further he has lost out on opportunities for overtime earnings which would have been available to him.

43.   There is currently no Covid restriction that would prevent his working in Orthopaedics, and he has requested a return to his normal role there.

44.   While Mr.M is now suffering an ongoing loss of earnings, he is also concerned that his ‘line’ is being permanently taken from him.

45.   Previous similar cases brought forward for Adjudication have resulted in compensation for the complainant and this case should be treated similarly.

Conclusion:

46.   Chair, by failing to give a formal response to Mr M’s requests to return to his position, while they have told him verbally that he will never return and preferring to have the matter addressed by the Workplace Relations Commission rather than inhouse. Management have failed to adhere to and exhaust their own internal procedures,

47.   If Mr.M is medically fit to return to the role, he had temporarily vacated due to Covid, then he should have been returned to it in March 2022.

48.   This must be rectified as a matter of urgency and he must now be allowed to return and his financial losses from March 2022 to date, made up by the respondent .

49.   Alternatively, he must be treated like his colleagues who are working in other areas but suffer no financial loss.

50.   If the latter, then he must also be deemed part of any future beneficial overall agreement achieved, around the Orthopaedic Operatives dispute in the future. 

51.   We respectively request a favourable recommendation which will provide Mr.M with:

·       A compensation amount which will take account of the imposed financial losses suffered from 1st March 2022 to date.

·       Ongoing financial losses addressed comparative to colleagues who held similar roster and who were also moved from Orthopaedic Theatre, until such time as an overall resolution is achieved.

·       A compensation amount for the failings by the respondent  in addressing the issue when raised by Mr M.

·       Cover under any future beneficial deal achieved on an overall solution to the Orthopaedic Theatre dispute.

Background

Mr.M is a theatre operative employed in the theatre department of his base  Hospital since 2005.

At the onset of Covid in 2020 Mr.M was moved from orthopaedic theatre, on the advice of Occupational health, to another department due to an underlying health condition that he had. He  was one of many  employees who were moved at the time following the onset of Covid. These moves were all carried out on OH advice and to protect employees who had underlying health conditions and who could potentially become very ill if they contracted covid.

Mr.M was moved to general theatre at this time which meant that he would no longer work weekends and would have less opportunities for overtime. This was the case with many employees at that time and Mr. M was being treated no less favourably than any other similar  employee.

Specific Case

During the Covid pandemic an industrial relations dispute arose in Orthopaedic theatre of the hospital . A number of theatre operatives were involved in a dispute over a limb lifter and were put on protective placement whilst a resolution was sought to this matter. The complainant , as a SIPTU shop steward, played a very positive role in trying to resolve this matter.

This dispute has stretched on for a significant period of time and as of today 21st August 2023 a full and final settlement has still not been reached. A number of the theatre operatives remain on protective placement at this point whilst management seek a full and final settlement to this dispute.

Whilst Mr.M  may be medically fit to return to his substantive post he is one of the theatre operatives involved in the dispute and like the others he cannot work in orthopaedic theatre at this time until a full and final resolution is found. This is an agreed position between SIPTU and management and not in dispute.

Management must refute any suggestion that Mr.M  is being treated less favourably than his colleagues or that his role as a shop steward is disadvantaging him in any way. This is simply not true. Management  have a long and positive relationship with all health service trade unions and actively promote a partnership approach at local level.

Current position

There are 2 distinct parts to Mr.M’s case.

One is the fact that he was moved at his request from orthopaedic theatre in 2020 at the start of Covid. His roster changed at this time so that he didn’t have access to weekend work. This was a voluntary and agreed move therefore there would be no weekend pay payable at this time. One simply can’t be paid for weekends or unsocial hour not worked as a result of a voluntary transfer.

However, in March 2022 when Mr.M was deemed medically fit to return to his substantive role in orthopaedic theatre, this reinstatement was deemed not possible at this time as he was one of the operatives in dispute with local management on the use of the limb lifter. He was then essentially changed to being on protective placement and essentially should have suffered no loss of earnings from March 2022. It is managements view that this is the case and that weekends that he was due to work should have been paid.

No employee should be financially disadvantaged whilst being on protective placement.

Conclusion

Chairperson,

Mr.M  is part of a collective dispute in Orthopaedic theatre and this matter is being worked through under the auspices of the WRC. Whether or not he  will return to orthopaedic theatre will be determined through this WRC process. Management are happy to apply the principles of the Public Service Agreement scheme 2010 in this case if agreement is reached.  However, in the meantime and from March 2022 Mr.M  should be paid for weekends that he was due to work in line with his other colleague. This is not in dispute and the employer is happy to facilitate this.

Mr.M  should not be financially disadvantaged since March 2022 but this can be reviewed immediately and on confirmation can be rectified in the next 2 pay runs.

I have reviewed the submissions and presentations from the parties and make the following recommendation in full and final settlement of this dispute :

The respondent pay for all outstanding weekend payments with effect from the 22nd.March 2022.

Comparative hours accumulated by virtue of the relativity of the rosters to be compensated to the claimant through TOIL – time off in lieu. Any dispute arising about the amount of hours, will be verified independently by a manager from outside the claimant’s work location.

TOIL will be taken by agreement with the claimant’s line manager.

The claimant will remain on his current assignment until such time as the collective dispute – of which he is part – is finally resolved. Going forward the claimant will be treated in all respects as if he were on his normal line in   the Theatre, while remaining on his current assignment, until the overarching issues in dispute are settled.

The respondent pay the claimant a compensatory sum of €5,000 compensation for the distress arising from the delay in responding to his complaints. All monies owed will be paid to the claimant within 4 weeks of the date of this recommendation.

This recommendation is issued in response to the unique circumstances pertaining in this dispute and cannot be relied upon or invoked at any other forum.