Complainant

Respondent

Anonymised Parties

A Chaplain

A Hospital

Representatives

Eoghan Ryan Forsa

Cait Lynch

Act

Complaint/Dispute Reference No.

Date of Receipt

Industrial Relations Acts

ADJ-00044837

10.03.2023

The claimant has been employed as a Chaplain with the respondent hospital since 2001.In his complaint form he submitted that he had been denied access to premiums and allowances as per public sector agreements since the commencement of his employment with the hospital, despite being covered by national wage agreements. The respondent hospital rejected the complaint on the basis that they had adhered to the provisions of the claimant’s contract and wider national agreements and that they had observed their own procedures in fairly processing the complainant’s grievances. It was submitted that they had no discretion to depart from national agreements and that any such concession would have significant implications for the wider body of chaplains throughout the country.

 The claimant’s representative submitted as follows:

I am writing to you in relation to the complainant’s above-referenced claim. The complainant  is currently on the top point of the Hospital Chaplain scale (65175e) and the current and historical rates for this grade are set out here: Pay scales - Staff site (hse.ie).

BACKGROUND

We attach copies of the two contracts that name (redacted) has had while in this position, which he commenced in 1998, one dating from 2/3/2001 and an updated one from 10/10/2006, both of which confirm that he has always been and remains an employee of the respondent hospital. While it appears that there may be pages missing from the 2006 contract, this is the copy that has been provided to the complainant by HR.

The Hospital Chaplain pay scale is specified in the HSE Consolidated Salary Scales (link provided above), which form part of the collective agreements with the relevant trade unions in the public sector and govern salary entitlements in publicly funded hospitals such as the respondent’s. These scales also reference the allowances that apply for certain types of rostering arrangements, and these are set out here: Allowances - HSE Staff. Overtime rates are set out in the attached HSE Circular 016/23.

CURRENT SITUATION

The complainant works a 5/7 roster and facilitates 24/7 on-call arrangements. The workload in the chaplaincy service has increased hugely in recent years due to unfilled vacancies and increased workloads and relies a lot on both overtime and on-call arrangements as a result.

As an indication of the financial loss to him, we have examined his roster from 26/12/22 to 11/6/23 and calculate that he would have earned €7,390 in that period (without including any possible on-call attendances), based on the above-mentioned allowances and overtime rules that apply on page 4 of the attached (Grades whose maximum salary does not exceed that of Grade VII).

CLAIM

While the respondent hospital has in local engagements referenced a collective agreement with the Catholic Healthcare Commission that applies in the complainant’s circumstances, we sought a copy of this agreement from them in February 2023 but have yet to be provided with same. Even if such an agreement with the Catholic Healthcare Commission were to be produced, we would, prima facie, question its application given that the complainant is clearly an employee of the respondent hospital. Thus, we are seeking access to the relevant allowances and overtime entitlements for the complainant, and an arrangement in terms of retrospection. This is in line with the national pay agreements that apply to him and his grade, which supersede any contractual conditions in relation to accessing overtime or bank holiday entitlements.

Copies of the claimant’s contracts were submitted following the hearing and the union clarified that the claimant was working a 5/7 as opposed to a 7/7 roster.

The complainant’s representative advised that the claimant was paid the max. of Grade VI on the administrative pay scale which was set out in the HSE consolidated scales. It was submitted that the national collective agreements superseded the contracts that were being relied upon by the respondent and that the allowances did apply to the claimant – ie overtime rates ; Saturday work Allowance , the Sunday allowance Night premiums depending on the rostering arrangement and the Public Holiday allowance as well as the Twilight allowance. The unions month review of the claimant’s attendance from December 2022 to June 2023 showed the significance of the loss being incurred by him - €7,390. It was submitted that all allowances should have applied to him and nothing negated his entitlement to those allowances including the Catholic Health Care Commission. The representative highlighted the frequency with which the services of a chaplain are called upon outside of the standard 9-5 office hours.

The union contended that there was no paperwork presented to back up the respondent’s position on the matter.

The claimant emphasised the shortage of qualified chaplains going back to 2006 and referenced a clause in his contract that specified24 hour care. He advised that overtime was essential to cover the gaps in the service particularly with respect to palliative care. He said the demands were such that it was very difficult to avail of time off in Lieu (TOIL). It was submitted that the provisions in the contracts relating to allowances had been superseded by collective agreement. It was submitted that the Haddington Road agreement made provision for a whole range of allowances going back 20 years.

The union asserted that they were not tinkering with a national agreement – there was none. It was submitted that the claimant had a legal entitlement to the allowances but the hospital were unwilling to engage.

The respondent’s representative submitted as follows:

The within claim by ‘the Claimant’ against his Hospital (hereinafter referred to as ‘the Respondent’) is brought under Section 13 Industrial Relations Act 1969.

Background to the Complainant

The Claimant is a longstanding employee of the Respondent hospital and a copy of his contract dated 01st March 2001 for his role as Chaplain is attached.

The contract notes the following in relation to Public Holidays:

“The Chaplain may, as part of such rotational procedure, also have to be available on a Bank Holiday in which event the Chaplain shall be given an alternative holiday in lieu. Entitlements in relation to public holidays shall be in accordance with the Organisation of Working Time Act, 1997”.

The contract also refers to overtime, and states the following:

“Overtime is not payable to Chaplains in respect of any such work”.

Background to the issue

1.1.        On 17 June 2022 the Claimant sent an email to Ms. B Head of HR Service Engagement, requesting a meeting be arranged to discuss some concerns regarding his contract.

1.2.        HR for the respondent had numerous engagements with the Claimant in order to set up a meeting to discuss these concerns, and on 28th June 2022 Ms B also gave the claimant the option to outline his concerns via email in order to address them in a timely manner, if this was more appropriate.  

1.3.        On 29 June the Claimant respondent stating he would prefer to meet with a union representative present, and would be in touch once he spoke to his union rep.

1.4.        A meeting took place between Hr and the Claimant on 31 January 2023. An email was sent to the Claimant following this meeting on 13 February 2023. The Claimant responded on 17 February 2023 outlining that his concerns had not been addressed. 

1.5.        On 23 February Ms F, Hr business Partner, emailed the claimant outlining the various steps that had been taken to address concerns raised, including having met with a number of parties to discuss the terms and conditions for chaplains, along with some consultation with the HSE on rates and allowances as per HSE pay scales.

1.6.        On 24 February the claimant responded stating he had now exhausted all internal avenues.

1.7.        On 24 February Ms B emailed the claimant explaining that Ms F was away from the office and requested that the claimant allow more time for Ms F to conclude the review of his concerns.

1.8.        A WRC Claim form was lodged by the Claimant on 10th March 2023.

1.9.        The Respondent continued to review the queries, and on 11 August 2023 Ms B sent an email inviting the Claimant to a meeting. -this meeting was held on 30th August 2023.

1.10.     On 14 September 2023 Ms B followed up with the claimant via email outlining that she had reached out to other S 38 organisations as well as the HSE to seek clarity on the Claimants concerns regarding his entitlements.

1.11.     On 21 September 2023 Ms B received confirmation from the HSE that

·       Overtime is not payable to chaplains.

·       Public holidays are payable in line with the organisation of working time act.

·       Night allowance is not payable to chaplains.

·       Twilight allowance is not payable to chaplains.

·       Sunday Premium may fall to be paid where a chaplain works on a Sunday.

1.12       The Respondent organisation took this response from the HSE into consideration and advised the claimant of receipt of this confirmation from the HSE. The Respondent clarified that Sunday premium would be paid going forward as of 6 November.

Respondents Position:

2.1               On the basis of the foregoing, it is the Respondent’s position that the claimant is being paid in line with his contract, any national agreements, and HSE national pay scales. The Respondent thoroughly looked into all issues presented to them by the claimant and sought advice from their funder where appropriate. Once the HSE position was clarified, the Respondent acted in accordance with this position at all times.

2.3 The Respondent’s position is that the queries raised were looked into in a fair manner, and that the Respondent behaved reasonably. The Complainant was, at all times, afforded all benefits of fair procedure, in line with the universal principles of natural justice.

2.4 In the case of Euro Car Parts Ireland Limited v A Worker (LCR22092), The Court decided that “In relation to the process followed and the report issued, the Worker could not point to any failure by the Respondent to follow the Respondent procedures, rather his issue appears to be that he disagrees with the findings of the Investigator. The Court finds that the Worker’s complaint was investigated in a fair manner and on that basis the appeal must fail”. 

2.6.        The implications for the Respondent of deviating from the collective agreements and nationally agreed payscales and creating a specific agreement for one colleague to change the terms and conditions that apply to the majority of colleagues in the sector has massive implications across all S38 organisations and it is not within the Respondents gift to deviate from these national agreements.

Conclusions

 Considering all of the above, the Respondent believes that the process was procedurally fair in all respects, the Respondent is enforcing the contract of employment that binds the parties including specifically to rostered hours and taking into account the needs of the business therefore, we would respectfully request that you uphold the Respondent position and dismiss the claim.

The respondent’s representative submitted that there was no consolidated scale for chaplains and that it was very clear that the group was not covered by the Haddington Road agreement in terms of the payment of allowances. It was submitted that it was not in the gift of the employer to go outside the general framework or to digress from the standards applied within the Section 38 sector. It was contended that the Grade VI pay scale does not include allowances. The matter would have to be dealt with on a national scale and cannot be dealt with on an individual basis. The respondent’s representative referenced the claimant’s contract to support her contention that the allowances were not payable for this grade and argued that it was clear that chaplains were not covered by the Haddington Road agreement.

The respondent’s representative asserted that there was no collective agreement to say the claimant had an entitlement to the allowances – they had gone to the HSE who advised that allowances were not included in the terms and conditions for chaplains – the respondent hospital could not change that and she referenced again the national ramifications of conceding the claim.

I have reviewed the submissions and contributions by both parties at the hearing. I accept the respondents contention that concession of the claim would have significant ramifications for the wider cohort of Chaplains throughout the country. In this regard, I have no jurisdiction under the Industrial Relations Act to issue a recommendation that would affect “ a body of workers”.

Notwithstanding this I am satisfied that the union and the claimant made a very compelling case on behalf of the claimant – I note that his 2006 contract references  24 hour cover  and a 24hour on call emergency service and accept the claimant’s contention that staff shortages within the service have compounded matters and given rise to the difficulties with availing of TOIL.I don’t accept that any compelling justification has been advanced  by the respondent for the less favourable treatment of the claimant and his colleagues viv a vis other grades of staff who provide a 24 hour on call service and are paid allowances and overtime for working outside of normal hours.

In the circumstances, I recommend in full and final settlement of this dispute that the parties set up an adhoc working group with an independent Chairperson to undertake a comprehensive review of the terms and conditions of employment of Hospital Chaplains having regard to the 24hour nature of the service provided by this group of workers. I recommend the review be completed within a time frame of 6 months and that any recommendations emanating from the group be implemented within 12 months from the date of this recommendation.

Terms & Conditions for Hospital Chaplains