Complainant

Respondent

Parties

Patrick  O'Neill

Beechlawn Nursing Home

Representatives

  Self

Andrea Montanelli ,Peninsula

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00050940-001

31/05/2022

The complainant commenced employment as a maintenance operative with the respondent on 4/11/2019.  He works 18 hours per week and is paid €15.50 per hour.  The complainant believes that he should not have to do on call duties as this was not notified in writing to him.  The respondent submits that on call in an integral part of the role and that he undertook on call duties since the first date of his employment but stopped doing so when a new manager displayed a roster.

The complainant submits that he was never advised that he would have to undertake on-call duties.  There was no mention of this at his interview or in his contract of employment.  He did help out with on-call duties while the respondent was recruiting a new maintenance manager and also to assist during the pandemic.  The new manager put up a roster indicating that the complainant was to formally undertake on-call duties.  This was a new practice and one which the complainant believes is a change to his terms and conditions of employment.  He did not attend any meeting in relation to this.

The complainant also submits that he was not given a mobile phone and so was not required to be available.  He gave evidence on affirmation that he had not blocked any work-related numbers on his private phone.

The complainant also outlined that if he was advised that he had an on-call commitment he would have reservations about taking up the role of maintenance operative.  He left a stressful role to take up this role consisting of 18 hours per week.

The respondent is a small nursing home caring for approximately 57 residents.  The complainant commenced employment as a maintenance operative on 4/11/2019.  The respondent submits that there was always an on-call system in place and given the vulnerable nature of the residents this is essential.  The respondent submits that the complainant carried out on-call duties over the past three years and the relevant pay slips clearly show this to be the case.  The respondent only became aware that the complainant was refusing to be on call in April 2022 when he became unavailable.

The respondent outlined that the on-call system had to be formalised in order to remove any ambiguity in the process. The respondent acknowledges that the complainant’s contract of employment does not specifically mention on-call but as it is standard practice for the maintenance team of two people it is an implied term of this terms and conditions.

The respondent submits that it is now in a difficult situation as the maintenance operative is part of the emergency response team and is a vital link with the fire services and contractors who provide various services to the nursing home.

The respondent also submits that the on-call in not onerous and provided examples from 2022 where there were no callouts in January, March and May.  There was only one call out in February and two in April.

The respondent confirmed that the complainant continues to be rostered for on-call and that by refusing to do these he is the party to a breach of his terms and conditions.  The respondent also notes that when the complainant refuses to be on-call the maintenance manage currently has to undertake 100% of the on-call duty.

The respondent submits that there is no basis to the complainant’s claim as he understood from the commencement of employment that on-call was part of the maintenance team duties.

The respondent opened the Labour Court decision of Bidvest Noonan (ROI) v Rabonsa, PWD 218 where the Court set out that two tests should be considered in determining what constitutes an implied term of a contract.

The first test is that set out on Shirlow v Southern Foundaries Limited, 1939 2KB206 which established the “Officious Bystander” test.  This is a test whereby an officious bystander if shown a term that is self-evidently should have been written into the contract but was not to exclaim “Oh of course”.    The second test relates to what is referred to as custom and practice and the Court set out that this was set out in the case of O’Reilly v Irish Press, 1937 71ILTR194 and was identified as a term that is so notorious, so well-known and acquiesced in so that it may be taken to be a term of the contract.

Having considered the evidence adduced and the submissions received I have concluded that the on-call requirement is an implied term of the contract of employment issued to the complainant.  It is clear that the respondent is a small standalone nursing home and relies on the on-call of maintenance operatives.

The complainant works as part of two-person team in the maintenance area and I am satisfied that the respondent has provided evidence that on-call duties were always part of the arrangement and that there is conclusive evidence that the complainant did on-call duties.  I do not accept that by putting the on-call on a roster represents a change to his terms and conditions of employment.  Rather, it clarifies who is on-call and when and represents good practice.

Given the foregoing I find that this complaint is not well founded.

I have decided that the complaint by the complainant seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 is not well founded.

On-call.  Implied terms.  Terms and conditions of employment.