Complainant

Respondent

Parties

Sarah  Glynn

Health Service Executive

Representatives

Marie O'Connor SIPTU

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00053180-001

10/10/2022

Submissions were filed on behalf of the Complainant. In addition the evidence adduced can be summaries as follows:

The Complainant commenced working for the Respondent in May 2008. She is a EMT /Paramedic. She was a student paramedic at the time. She went on sick leave in early 2020. She returned back on 15 May 2020. When she came back she was doing different duties. She was part of the covid swabbing team.  She has continued to do those duties to date. Her duties include vaccinations, swabbing, sample transfers and administrative duties. She was also doing her paramedic duties.  She had a meeting with her manager prior to recommencement to discuss her roster.

The Complainant was informed in writing that as of the 11th April 2022 she would no longer be paid her shift allowance. It had been paid for almost two years prior to that but the Respondent states that that was in error.

She raised a grievance 28 April 2022 in relation to the removal of her shift allowance. Mr Gill from SIPTU on behalf of the Complainant referred to the 1978 and then the 1998 shift allowance agreements outlining that the word “and” was stated in the agreement and not “or” as per HR circular and that this wording allowed for the shift payment to be paid to the employee.

Mr. Mc Shane, in his outcome letter dated 20th May stated “for ambulance grades, a shift week is defined as a week in which two or more duty periods commence earlier than 8:00 a.m. or later than 12:00 noon? Where a week comprises only duty periods between 8am and 12 noon forms part of a recurring cycle of weeks, the remainder of which consists of shift weeks it should be regarded as a shift week. As your current pattern of work does not meet these requirements, you are not entitled to be paid a shift allowance”

 It was not upheld mainly due to the fact that she did not meet the criteria. That however was based on the fact, that no roster was submitted. However, Mr. Mc Shane, who heard the grievance, is the person who signs off on the Complainant’s roster, so he would have been fully aware that the Complainant does work two shifts that commence prior to 8a.m.  The Complainant works two shifts on a Saturday and a Sunday and both shifts start at 7.30a.m. There are two others working this roster. One is in receipt of the allowance and the other is not.

The Complainant appealed the outcome to Mr. White. It wasn’t actually dealt with due to the fact that the Respondent is waiting for WRC decision in relation to another matter. On the 26th September the Complainant received an email from the Respondent stating that they were still waiting for a WRC decision in relation to shift work.  As the matter was not progressing the Complainant referred the matter to the WRC.

The Complainant relies on the Ambulance Agreement 1978 where at 6 (x) it states:  “a shift week is defined as a week where two or more shifts started earlier that 8am or after 12 noon”.  The Complainant clearly meets the criteria for eligibility for a shift allowance.

Submissions were filed on behalf of the Respondent. Mr Matthew Mc Shane following the affirmation gave evidence as follows:

He was asked to hear the Complainant’s grievance. That is when he first became aware of the shift allowance issue.

There is a HR memo in relation to shift allowance. It was sent out to all staff on the 27 December 2020. Shifts would have to be carried out before 8am after and after 12 noon on a rotational basis to be entitled to the allowance.  That was relied on when hearing the grievance. The Complainant didn’t submit any roster so there was nothing to rely on. The Complainant stated that Mr. Mc Shane signed off on her rosters but that is not correct.

The Complainant relies on the 1978 agreement at 6 (x)  “a shift week is defined as a week where two or more shifts started earlier that 8am or after 12 noon”.  However, the memo sent to staff by the Respondent uses the word “and “ and not “or”. The criteria is clearly set out in the Labour Court decision LCR 7001 therein it stated “The Court recommends that those workers covered by the claim who have a starting time variation of at least four hours and a difference of at least 12 hours between the earlies and the latest finish should be paid a shift allowance of one sixth with effect from 1st May 1981” The Complainant alleges that that decision is not relevant to ambulance staff. It is about catering staff. The Respondent argues that that the decision is relevant and appliable.    

She worked an operational roster prior to 2020. That meant she carried duties before 8am and after 12 noon on a rotational basis. Following her injury when she returned to work, she did not carry out an operational roster. Therefore, she does not meet the criteria.  

The Complainant relies on the 1978 Ambulance Agreement which states:

 “A shift week is defined as a week in which two or more duty periods commence earlier than 8.00am, or later than 12.00 noon. Where a week comprising only duty periods between 8.00 am and 12.00 noon forms part of a recurring of weeks, the remainder of the which consists of shift weeks, it shall be regarded as a shift week.”

It is agreed between the parties that the Complainant does work two shifts that started at 7.30 am. She does not do any shifts that start after 12 noon. Based on the 1978 agreement and on the Complainant’s current shift hours, she does meet the criteria under that agreement. However, the Respondent states that further clarification was provided by the Labour Court decision LCR7001 1982  wherein it sates

“ The Court recommends that those workers covered by the claim who have a starting time variation of at least four hours and a difference of at least 12 hours between the earlies and the latest finish should be paid a shift allowance of one sixth with effect from 1st May 1981”

They went on to state that following that decision rosters changed to 12 hour working, with shifts starting at 7am 8am, 7pm and 8pm, and were and continue to be designed to provide a level of service that provides 24/7 cover throughout the Country incorporating day and night working rotational basis.

The matter was further clarified by the HSE guidelines on Terms and Conditions of Employment 2017. It stated: “Shift work occurs where an employee works in rotation so that a function can operate beyond normal daily or weekly hours. Workers with a starting time variation of at least four hours and a difference of at least twelve hours between the earliest and the latest finish should be paid a shift allowance….”.

What is confusing about the Respondent’s submission is that if the 2017 are in fact the criteria used to establish whether someone is or is not eligible for a shift allowance why did Mr Mc Shane use the 1978 Ambulance Agreement criteria when determining the grievance outcome? In his outcome letter to the Complainant, he stated “For ambulance grades a shift week is defined as a week in which two or more duty periods commence earlier than 8.00am or later than 12.00 noon” I note that the word “or” is used and not “and” as was argued by the Respondent today to be the correct word to use.

Having carefully reviewed the documentation submitted I am not satisfied that the matter is as simple as the Complainant alleges. The use of the word “and” or the word “or” is only part of the equation. When one assesses the wording in LRC 7001 “The Court recommends that those workers covered by the claim who have a starting time variation of at least four hours and a difference of at least 12 hours between the earlies and the latest finish should be paid a shift allowance of one sixth ..” together with the 2017 agreement “Shift work occurs where an employee works in rotation so that a function can operate beyond normal daily or weekly hours. Workers with a starting time variation of at least four hours and a difference of at least twelve hours between the earliest and the latest finish should be paid a shift allowance….” It is clear that the shift allowance is designed to compensate staff who work both day and night shifts on a rotational basis. This shift pattern is obviously necessary to ensure paramedics are available 24/7. The Complainant does not have a variation of at least four hours and a difference of at least twelve hours between the earliest and the latest shifts therefore I find that she is not entitled to the shift allowance.

The Complaint is not well founded and accordingly fails.

Shift work, Rotational shifts, Shift Allowance, Unlawful Deduction.