Worker

Employer

Anonymised Parties

Consultant

Voluntary Hospital

Representatives

Thomas Smyth Irish Medical Organisation

 Deputy Director of HR

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00043577

13/04/2021

The employee is a consultant employed on a half-time (19.5 hours per week) consultant contract.  He commenced employment on a short temporary contract in November 2008.  He was re-employed under the 2008 Consultant Contract effective 01 March 2009.

On return from a period of leave the employee expressed a wish not to work on-call duty, as provided for in his contract.  In November 2018 the employer offered the employee two job plans.  The employee selected job plan 2, which had no on-call duty, but had more outpatient duty.  Subsequently, the employee was required to participate in the on-call rota.

The employer acknowledges a work practice plan, without on-call commitment, was presented to the employee, on the understanding that the service could absorb this option.  However, circumstances changed, and the employer engaged with the employee to reach agreement on a new work practice plan.  The employer asserts that the express terms of the employee’s contract require him to undertake an on-call commitment.

The employee lodged a grievance with the employer, but the matter was not resolved to his satisfaction.  The dispute was submitted to the Workplace Relations Commission on 13 April 2021.  The employee has participated in the on-call rota, as instructed by the employer, since March 2020.

The employee commenced employment with the hospital in 2008.  He holds a half-time post.  Between 2008 and 2014 his contractual role involved working directly in the hospital with some outpatient commitment to another hospital.

In December 2014 the employee took a leave of absence.  In January 2016 the employee began discussions with the employer about his return-to-work arrangements.  In June 2017 the employee returned to his previous half-time role without the complete schedule and work practice plan for this role being agreed.  Arrangements for outpatient clinics were being made on a week-to-week basis.  Discussions to agree a work practice plan continued between the employee and the HR department.

In November 2018 the employee was offered two work plans for his future clinical duties and weekly job plan arrangements.  In December 2018 the employee accepted option 2 of the work plans.  Option 2 did not include on-call work.  Option 2 was consistent with his previous (2008 – 2014) established role being very outpatient focussed and the fact that the clinical need for this group of patients was non on-call duties.

In January 2019 the employee returned to his previously allocate Monday outpatient’s clinic slot at the hospital.  The employee worked with the Clinical Director, the departmental Business Manager and the department to regularise and progress the new work arrangements.  There was some discussion about the employee taking on a very limited on-call commitment.  In April 2019, without agreement with the employee, he was placed on the on-call rota for the department.  The employee stated his objections to being placed on the on-call rota, without agreement with him.  He engaged with the HR department and suggested two further work plans.

The employer responded with a separate option.  This option was not acceptable to the employee as it involved undertaking approximately double the level of on-call duty that he had undertaken in the period 2008 to 2014.  The employee continued to engage with the HR department but by July 2019 it was clear that the employer was saying it was not able to comply with the terms of the agreement it had entered into in the previous December.

The employee referred the matter to his representative body, the IMO.  A meeting took place in August 2019 to try to resolve the issue.  A proposal submitted by the IMO on the employee’s behalf was rejected by the employer.  The IMO then submitted a formal grievance on the employee’s behalf and attended a grievance hearing in January 2020.  The issue was not resolved and is still outstanding between the parties.  The employee has worked on-call as instructed by the employer in 2019 and again in March 2020.

The employee engaged with the employer in good faith to agree an acceptable working arrangement.  He nominated a specific working arrangement (Option 2) offered to him by his employer in December 2018.  His contract of employment should be read in the context this agreement.

The employer disregarded the December 2018 agreement due the protests of other consultants in the Department.  The employer in disregarding the agreement allowed the employee to be placed on the on-call rota since April 2019.  The employee has continued to work approximately double the on-call commitment he did previously between 2008 and 2014.  He is doing this level of on-call work under protest.  The on-call work is in addition to his outpatient work.  The employee is doing as much outpatient work as a full-time consultant.

The employee sought to commence his work at the other hospital as provided for in his contract.  However, there were no outpatient slots available at the other hospital.  So, with the support of the departmental Business Team he moved the other hospitals outpatient slots to an outreach clinic of the employer in February 2020.

The employee seeks a recommendation in the following terms:

·       Confirmation that he is entitled to work under the terms of Option 2 as agreed in December 2018.

·       That any proposed changes to Option 2 would only be by express agreement with the employee.

·       That there be no further discussion of the employee’s contractual arrangements with his departmental colleagues.

·       Such other reliefs as the adjudicator see appropriate.

The employer is a Section 28 acute voluntary hospital, funded by the Health Service Executive (HSE). The funding is conditional on compliance with a service level agreement and the delivery of performance outcomes.  The hospital is governed by a Board of Directors, and the Chief Executive is responsible for oversight of the services provided. 

The hospital is an academic teaching hospital with eight Clinical Directorates.  Each Directorate is governed by a Directorate Management Team comprised of a Clinical Director, Assistant Director of Nursing and Business Manager.  Medical staff are accountable to the Clinical Director, who is responsible for managing a team of consultants.  This reporting relationship is specified in the Consultant Contract.

The employee was first employed on a temporary contract in 2008.  He was re-employed on 01 March 2009 under the Consultant Contract 2008.  The employee is employed half-time (19.5 hours per week) and is a permanent member of staff.  He is one of ten consultants in the relevant department who share an on-call commitment to support a 24/7 service, which is undertaken on a pro-rata basis as appropriate.

The most recent letter of approval from the HSE of the employee’s appointment, dated 07 March 2013, confirms a part-time joint appointment on a Type B basis by employer hospital (13 hours per week) and another hospital (6 hours per week).  The letter of approval specifies the following:

“The normal duties for the post as outlined in the documentation and agreed by the HSE include inter alia

·       5 hours per week for inpatient care and ward rounds

·       Day care activity as required

·       10 hour per week for out-patient clinics

·       Consultation services as required

·       Participation in the on-call rota

The foregoing list of duties will form part of the Clinical Directorate Service Plan. Remaining commitments are to be assigned by the employer(s) and may be adjusted by Clinical Director/Employer in consultation with the Consultant appointed to the post.”

A Consultant’s weekly work schedule is determined by an approved work practice plan (WPP).  All new Consultant posts are developed with the clinicians in situ within the medical speciality, the Clinical Director, Chief Operations Officer and the Director of Human Resources.  All Consultant applications to the HSE include an agreed WPP.  It is stipulated in the Consultant contract that: “if a significant change to this post is contemplated e.g., location, structure, title, contract type etc. the prior approval of the Health Service Executive is required.”

The Consultant contract contains an obligation to work the on-call rota, with associated remuneration applied.  The employee is paid a flat annual allowance - B Factor (On-call) Payment of €4,235 per annum, consistent with the terms of his contract.

BACKGROUND

Prior to taking leave in December 2014 the employee participated in the Consultant on-call rota.  The employee returned from leave in June 2017.  Between January 2016 and June 2017, the employee and the employer engaged in discussions and meetings about the working arrangements to be implemented when he returned to work.

The employee requested a change to his working arrangements by confining his practice to one hospital base.  This would have been a restructuring of his appointment.  At a meeting in March 2016 the employee expressed a wish not to be on call.  The meeting took place between the employee, the Clinical Director and the Director of Human Resources.  Following that meeting there was ongoing protracted engagement between the employer and employee.  In February 2017, in response to a communication from the Clinical Director the employee stated in an email “I think that the 1:6 on call and the 0.33 WTE (13 hours) is reasonable given the circumstances”

Between February and June 2017 there were multiple exchanges in correspondence between the parties.  There was no agreement on a work practice plan when the employee returned to work In June 2017.  The Director of Human Resources engaged with the employee and on 21 July 2017 wrote to him setting out two options for consideration.  On 28 July 2017 the employee confirmed that “I am unconditionally accepting contract Option 2”.  That option required a 0.5 WTE commitment and included 1:10 on call.  The Director of Human Resources replied on 03 August 2017 welcoming that the matter was resolved.

By December 2017 the employee had not commenced working the agreed Option 2.  The Director of Human Resources wrote to the employee on 01 December 2017 about the fact he had not commenced working the agreed option.  The employee replied on 08 December 2017 stating that “I believe that the proposed Option 1 and Option 2 are unworkable and inequitable” thereby contradicting his unconditional acceptance of Option 2 in July 2017.

A new Director of Human Resources was appointed in mid-2018.  Following that appointment there were many engagements, meetings and correspondence with the employee to try to resolve his issues regarding his work practice plan and on-call obligation.

In November 2018 a further proposal was put to the employee.  Again, the proposal contained two options.  Option 2 had no on-call commitment.  The employee selected Option 2.  Part of Option 2 was a commitment to another hospital, which had yet to materialise.  There were further developments which necessitated that the employee work on-call and given his commitment to the other hospital had yet to materialise more discussions took place between the parties.

The Director of Human Resources wrote to the employee on 23 June 2019 with a revised work practice plan.  This proposal included a half time on-call commitment, inclusive of weekdays (1.5 hours per week was included in the WPP to reflect this workload) and the removal of the 2 clinics per month in the other hospital.  The Director of Human Resources stated that he and the Clinical Director considered this schedule to be a reasonable work practice plan, consistent with his contractual working hours commitment.

There was further engagement between the employee, the employer and the union during the months of July, August and September 2019.  The parties explored arrangements that would be acceptable to both parties.  The employer expressed the view that a work practice plan that included an on-call commitment was practical as the employee’s commitment to work in the second hospital was not then in place.  The employee and his union sought a compromise plan which restricted on-call commitments to weekend duties. The employer proposed a plan in which the employee would undertake weekend on-call commitments exclusively, subject to several conditions.  The employee’ union then sought agreement on a 0.25 WTE on-call commitment (up to 15 nights per annum), rather than a 0.5 WTE (up to 30 nights per annum).  The employer considered this proposal for a reduced on-call commitment to be disproportionate to his contractual hours.  No agreement was reached between the parties.

The employee raised a formal grievance on 22 October 2019, about management’s purported decision to compel him to participate in the on-call roster.  The employer notes that at that time the employee, in consultation with the Departmental Business Manager was pursuing an expansion of his clinics.  This plan was to add clinics on a Tuesday or Wednesday at a Satellite Outpatient Suite.

The grievance was heard by the Lead Clinical Director and the Chair of the Medical Board of the hospital.  The decision was communicated by letter of 13 March 2020.  The Grievance Panel decided to uphold the decision of hospital management to compel the employee to participate on the on-call rota “subject to its inclusion within a reasonable work practice plan pro-rata to your weekly working hours (19.5 hours per week).  We established at the meeting that this commitment amounts to approximately 1 weekend per quarter and 5-6 weekdays.”  It was also noted that the employee’s commitment to the second hospital had not been activated at that date.  For that reason, the Panel took the view that the employee’s on-call commitment could be accommodated within his then current weekly schedule considering the frequency of call.  The Panel emphasised that Work Practice Plans are subject to change on an ongoing basis, following consultation in accordance with the terms of the Consultant Contract 2008.  Further, the Panel noted “agreement of a work practice plan does not denote permanency of an arrangement nor does it constitute a contractual entitlement to be preserved indefinitely.”

Employer’s Position

The employee, by the express terms of his contract, is obliged to undertake an on-call commitment, for which he receives a fixed annual allowance of €4,235.

Since 2016 the employer has engaged extensively with the employee to reach an agreement that would be acceptable to both parties.  The employer conceded the issue of a single site appointment.

The employee considers the current work practice plan to be inequitable.  The Grievance Panel, which was comprised of the most senior clinicians in the hospital, concluded that the work practice plan, agreed in January 2091, was reasonable.  The sessional commitment to the second hospital has not been activated.  Accordingly, the employer is of the firm view that there is ample capacity withing the work practice plan to undertake an on-call commitment, as expressly provided for in the employee’s contract.

It is noted that the employee advised the Grievance Panel that he did not have a difficulty participating on the on-call rota, within a reasonable work practice plan. 

Following the decision of the Grievance Panel the employee was instructed to participate on the consultant on-call rota, commencing on 23 March 2020, with a commitment commensurate with a half-time appointment.  It is acknowledged the employee confirmed his agreement to work on-call, taking note of the Covid- 19 pandemic, and he has continued to work the on-call rota since, consistent with his contractual commitment.

It is acknowledged that the employee was presented with a work practice plan in December 2018 that did not have an on-call commitment but, this was done on the understanding that the service could absorb this arrangement.  However, circumstances changed, and the service could not absorb this arrangement.  It is the employer’s prerogative to require a consultant to participate in the on-call rota, consistent with the consultant contract.

The employer requests a finding in its favour in respect of the contractual requirement for the employee to work on-call and endorse that he should have an on-call commitment commensurate to his half-time appointment.

In conducting my investigation, I have considered carefully all relevant submissions presented to me by the parties.

I note the employee is employed on a Consultant Contract (2008).  He commenced employment with the employer in 2008.  The employee is employed on a half-time basis (19.5 hours per week) and is a permanent member of staff.  The employee’s appointment was approved by the Health Service Executive, most recently in 2013.  The letter of approval specifies, among other items, participation in the on-call rota. 

Between 2008 and December 2014 the employee did participate in the on-call rota as part of his work practice plan.  The employee was on leave from December 2014 until June 2017.  Prior to his return to work the employee requested changes to his working arrangements.  Between January 2016 and June 2017, the parties engaged in correspondence and meetings to try to reach an agreed work practice plan.  The employee requested two changes to his working arrangements.  First, that his practice be confined to one hospital base.  Second, that he would not be required to participate in the on-call rota.  No agreement had been reached by the time the employee returned to work in June 2017.

In July 2017 the then Director of Human Resources presented to the employee two options that the employer was prepared to accommodate in relation to his work commitments.  The employee selected Option 2.  The employee confirmed in writing that he would “unconditionally” accept Option 2.  The Director of Human Resources acknowledged the acceptance in early August 2017 and welcomed the fact the matter was resolved.  I note that Option 2 required a 0.5 WTE commitment and included 1:10 on-call commitment.

The matter appeared to have been resolved to the satisfaction of both the employee and the employer.  However, by December 2017 the employee had not commenced working the agreed Option 2.  In response to a letter from the Director of Human Resources the employee raised issues with the on-call arrangement and stated his belief that both Option 1 and the agreed Option 2 were unworkable and inequitable.

I note that a new Director of Human Resources was appointed in mid-2018.  There was further engagement between the employee and the employer.  For a second time two work practice plan options were presented to the employee.  Option 2 did not have an on-call commitment.  The employee selected Option 2.  Included in Option 2 was a commitment to a second hospital, which had yet to materialise.  It seemed that a second resolution of the issues had been agreed.

However, I note the employer states that developments necessitated that the employee participate in the on-call rota and as he had not commenced working at the second hospital there was capacity in his work practice plan to accommodate this requirement.  In June 2019 the Director of Human Resources proposed a revised work practice plan to the employee.  The Director of Human Resources and the Clinical Director considered this new plan to be reasonable and consistent with the employee’s contractual working hours.  The new plan included, among other items, a half-time on-call commitment inclusive of weekdays – 1.5 hours per week were included in the plan to reflect this workload.

Between June and October 2019 there were extensive exchanges between the employee, employer and union representative.  No agreement was concluded.  The employee raised a formal grievance on 22 October 2019.

The decision of the Grievance Panel was issued on 13 March 2020.  The decision was to “uphold the decision of hospital management to compel your participation on the on-call rota subject to its inclusion within a reasonable work practice plan pro-rata to your weekly working hours, (19.5 hours per week).  We established at the meeting that this commitment amounts to approximately 1 weekend per quarter and 5-6 weekdays.”

Following the decision of the Grievance Panel the employee was instructed to participate on the on-call rota, commensurate with a half-time appointment, from the week commencing 23 March 2020.  This instruction was issued around the time the Covid 19 pandemic was declared.  The employee confirmed his agreement to participate on the on-call rota and has continued to do so.

The dispute was referred to the Workplace Relations Commission on 13 April 2021.

Conclusion

The employee participated on the on-call rota from the time he commenced employment until he went on leave in 2014. The employee did not raise any issue during that period about participation in the on-call rota.

Before his return from leave the employee requested changes to his working arrangements.  The employer engaged with the employee to try to find a solution that was acceptable to both sides.

An agreement was reached in July 2017.  However, the employee withdrew from that agreement in December 2017.

A second agreement concluded in December 2018.  However, circumstances changed, and the employer could not continue to implement the agreement.

In my opinion the employee has a contractual obligation to participate in the on-call rota, pro rata to his half-time post of 19.5 hours per week.  The employee receives a fixed annual allowance of €4,235 for the on-call commitment.

It is also my opinion that there should be consultation between the employer and employee about the details of the employee’s work practice plan.  I am satisfied that there has been extensive consultation in this dispute about a plan that is acceptable to both employee and employer. 

The agreement reached in July 2017 was subsequently rejected by the employee.  The agreement of December 2019 was subsequently changed by the employer.  This demonstrates that circumstances change, on both sides, and work practice plans must change in response to those circumstances.

When circumstances change it is the role of management to plan and prioritise the work of the department and the hospital.  Between 2017 and now there have been many changes.  For example, the Covid 19 pandemic changed priorities.  The employee, in consultation with the Departmental Business Manager, has taken on additional work at the Satellite Outpatient Clinic.  The prioritisation of the work of the Department must be a decision for the Clinical Director.  Having decided the departmental priorities, it would be good practice to agree work practice plans with the employee.  However, the Clinical Director carries the responsibility for the effective running of the Department.

I conclude that the main issue in dispute is trying to agree what is a ‘reasonable’ work practice plan in the context of the employee’s contractual obligations.  The employee and the employer have over the last five years shown a willingness, at different times, to try to reach agreement.

I make the following recommendations, set out below, in order to assist the parties to agree a work practice plan that is acceptable to employer and employee and meets the needs of the hospital. 

On-call rota

Work Practice Plans