Worker

Employer

Anonymised Parties

A Pharmacist

A Public Service Provider

Representatives

A Colleague

Ger Connolly Mason Hayes & Curran

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-00047052

09/11/2021

The dispute concerns the Worker’s week-end hours at a particular clinic – referred to as X for the purpose of this Recommendation - and the Employer’s decision to vary those hours.

The Worker stated that the service is provided on a seven day basis and she outlined her pattern of work including at weekends and the nature of the service. The Worker stated that that she was initially hired on a sessional basis in 1998 and that by 2008 she started working full-time and understood she was an employee. The Worker stated she was not provided with any written terms and conditions of employment and that “no agreed written contract of employment has ever been signed…”. She estimated her average weekly hours were 47.1/week. The Worker stated that she had an employee number, was paid sick leave and fulfilled Revenue and Department of Social Protection criteria for recognition as an employee though she was not a member of the Employer’s superannuation scheme. The Worker outlined previous discussions between the union Fórsa and the Employer in relation to reaching agreement on contractual terms and conditions – including in 2018 and 2019 in relation to week-end hours. Notwithstanding, the issue of the contract was not resolved at the time of the adjudication hearing.  

The Worker stated that other than on a Sunday when she was paid double time, all hours worked were paid at a flat rate and that no overtime applied. She stated that from 2003 she was regularly rostered to work weekends at a particular clinic – X – and was always paid the same number of hours for this work. The Worker stated that on 18 October 2019, the Employer informed staff that from 2/11/2019  X  clinic’s opening hours were being reduced by one hour on Saturdays and Sundays – ie resulting in reduced opening times of 10am-1pm to 10am-12pm on both days. The Worker outlined the impact of the change for her and others in the service.

The Worker stated she was shocked by the Employer’s decision to unilaterally reduce her week-end hours and she outlined her objections and complaints to the Employer in that regard. The Worker stated that she was never offered any replacement hours. The Worker took issue with the Employer’s proposed compensation and stated she was at a loss of €4459.61 up to 12/4/2022.

It is the position of the Worker that her terms and conditions of employment are implied through well established custom and practice and that rostered weekend sessions form part of her core hours of work. The Worker submits that she was not consulted nor did she consent to the reduction in her week-end hours, that alternative options - which she outlined - could and should have been explored, that the change was unfair and unlawful and that pharmacists including the Worker were treated differently to other grades.

At the outset the Employer raised a preliminary objection that the dispute related to working hours/contracted hours and pay of a body of workers and was therefore beyond the scope of Section 13 of the Industrial Relations Act 1969. 

The Employer referred to the history of the dispute and stated the Worker was “one of a cohort of sessional pharmacists” affected. The Employer outlined its dealings with the Complainant in 2019 and in relation to the reduced hours at X clinic. The Employer submitted that since the rationalisation of weekend hours the threat to service provision has been negated. The Employer stated the dispute had been the subject of a previous referral by the Worker and a colleague under the Payment of Wages Act [1991-2017] and that whilst the Worker did not proceed with that complaint her colleague did.

The Employer outlined the history of the Worker’s employment which for the most part is not in dispute. The Employer stated that the Worker was initially engaged on a contract for service basis and that discussions with the Union in or around 2007/2008 failed to reach agreement on agreed terms and conditions of employment – which remained the case up to the time of the adjudication hearing.

The Employer outlined the Worker’s hours and stated that the her core hours were increased by 2.5 in 2018. In relation to the reduction of hours at X clinic, the Employer outlined that a review of the hours commenced in 2018, that a proposal was presented in 2019 following which a working group was established whose recommendations were endorsed on 26 September 2019. Arising from this process the hours in X clinic were reduced from 2/11/2019. The Employer maintained that the reduced working hour on Saturdays and Sundays fell within a band of excess hours and did not constitute a reduction of the Worker’s basic working week.

It is the position of the Employer that its service requirements changed, that the Haddington Road national public service pay agreement (HRA) applied to the new arrangement, that a claim for actual loss of earnings arising from the new arrangement is available under a mechanism which emerged from the HRA and in that regard, that the Chief Pharmacist had calculated that the Complainant was entitled to compensation of €2538.90.

Section 13 of the Industrial Relations Act 1969 provides that ".... Where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended….., a party to the dispute may refer it to a rights commissioner [ie Adjudication Officer]".  I note the Employer stated that the Worker was initially employed on a contract for service basis and that whilst no contract of service has yet been signed, the Worker maintains that she has established implied terms and conditions of employment. 

In conducting my investigation into this dispute, I have taken into account all relevant submissions, documentation and case law cited.  From the submissions and information provided I am of the view that the approach of both the Worker and the Employer is consistent with a dispute concerning a body of workers – for example a working group was established at local level, the dispute was represented as affecting a group of pharmacists, the trade union Fórsa was involved and there was compensation for those affected via the HRA.

In all the circumstances, I have concluded that this trade dispute is collective in nature and concerns the rates of pay and hours of work of a body of workers -  namely the sessional pharmacists rostered to work week-ends in X clinic. I am satisfied that the kernel of the dispute – ie the reduction of week-end hours in X clinic  is not confined to the Worker in this dispute nor would any potential recommendation I may make in that regard.

In light of the foregoing, I am satisfied this dispute is outside the scope of my jurisdiction pursuant to

Section 13 of the Industrial Relations Acts, 1969. In the circumstances, I do not have to consider the the employment status of the Worker.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute. In light of my conclusion that I do not have jurisdiction in this matter, I make no recommendation. 

Hours of Work; Body of Workers