Worker

Employer

Anonymised Parties

A Catering Attendant

A Health service provider

Representatives

Yvonne McGrath SIPTU

HR Manager

Act

Dispute Reference No.

Date of Receipt

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

IR - SC - 00000366

13/06/2022

The Worker sought compensation for the alleged loss of regular and rostered overtime earnings arising from the introduction of roster and ward changes due to Covid 19. The issue of a Recommendation was impacted by the change in the Workers Representative due to retirement, due to post hearing exchange of information and the Employer seeking documentation relevant to the dispute.

The Worker commenced employment with the Employer in 2009 as a Catering Attendant on a 39 hour per week contract. From March 2019 the Worker, as a result of an agreement with her supervisory colleagues. was rostered to undertake additional duties regarding the provision of evening teas for patients on an overtime basis. The agreement was entered into on the basis that management were experiencing difficulties in providing the service through ad hoc overtime and needed staffing certainty regarding the provision of meal services. The roster for this overtime was preprepared and rostered the Worker to undertake the duties involved 4 days per week for a period of 4 hours per day. Her hourly rate of pay at that juncture was €16.24 per hour. The rosters confirm that the overtime was regular and rostered.

 In April 2020 at the onset of Covid 19 the Catering Officer with responsibility for front line catering decided to implement changes to the existing evening tea arrangements which resulted in the Worker being removed from the regular rostered overtime. This decision was implemented without any consultation with the Trade Union.

As a result of the ongoing loss in remuneration being experienced by the Worker, in line with the Public Service National Agreements, SIPTU wrote to Senior management on the 04/08/2020 lodging a formal claim for loss of earnings. Following a number of direct telephone communications with Operational Services Directorate management, the Union met with management in late November 2020 where it was agreed that the Worker would be returned to her rostered position for the evening tea over time from the 07/12/2020. It was accepted by management at that meeting that the Union would continue to process its claim for loss of earnings on behalf of the Worker for the period between April and December. The norms under the PSSA would entail the calculation of relevant losses at the end of a 12- month period with a payment based on 1.5 times the annual loss.

In August 2021 SIPTU again wrote to the General Manager of the Operational Services Directorate seeking a resolution of the Workers claim. In October 2021 the General Manager acknowledged SIPTU's email and confirmed that she was reviewing the claim.

Subsequently in November 2021 the General Manager requested confirmation of the start & end dates for the claim in addition to seeking a copy of the original claim letter. In response SIPTU confirmed that in line with the PSSA the relevant reference period for the claim was the 12- month period between the 06/04/2020 & the 05/04/2021. This was noted by the General Manager. A copy of the original letter of claim was also forwarded to the General Manager. In the General Manager's response she confirmed that she was awaiting a response from payroll. In a subsequent telephone call the General Manager confirmed that she had requested payroll to undertake a calculation of losses for the purposes of finalising the claim. On the 10/12/2021 the General Manager confirmed that she had sent a reminder to payroll regarding the Workers loss of earnings calculations.

In early 2022 the General Manager transferred to another Directorate within the hospital group and was replaced on an interim basis by Ms EC. In February 2022 the Worker wrote directly to Ms EC seeking an update regarding her claim. The response received from Ms EC was noncommittal regarding the previous commitments given by the General Manager. Given the failure by management to reconcile the claim SIPTU took the decision to refer the issues involved to the conciliation services of the Workplace Relations Commission. Following several pieces of correspondence between Management and the WRC the employer in May 2022 declined the WRC's invitation to attend conciliation. This decision has ultimately led to an Adjudication Officer hearing under the Industrial Relations Act.

At the onset of Covid 19 it was clearly accepted by the Trade Union Group operating within the Employer that the normal requirements regarding time-based consultation agreed under the various National Agreements regarding the implementation of work related changes would have to be suspended to allow management the flexibility to introduce change at short notice to meet the challenges of the pandemic. The position adopted by the Trade Unions did not fully remove the right of Trade Unions to be consulted regarding specific changes affecting their members. This is reflected in documentation issued by the Employer which confirmed that the requirement for consultation needed to be emphasised and that the provisions of the Public Services Agreements were still applicable. The required level of consultation regarding the implantation of new rosters that affected our members pattern of regular rostered overtime did not take place. In addition, at local level the union also received commitments from management regarding the introduction of " crisis rosters" and the use of the third party system to deal with issues arising from the implementation of changes to existing rosters.  It was further confirmed by the Employer nationally that regular rostered overtime would be incorporated into payments made under the arrangements for Special Leave with Pay for Covid 19.

The various national agreements between the public service employers and the trade unions clearly recognised that staff are entitled to compensation for loss of earnings as a result of the introduction of change in the workplace. It is generally accepted that while normal overtime is not encompassed by these provisions, the loss of regular rostered overtime falls within the ambit of loss of earnings. As part of her normal working arrangements the Worker provided a service to her employer based on regular rostered overtime equating to 16 hours per week. This element of her working arrangements was removed without agreement from April 2020 until the union secured an agreement for its restoration in December 2020. The employer has subsequently put forward a position that the Worker was offered the opportunity of reverting to her roster and declined this opportunity. It was clearly accepted by management at the meeting in November 2020 that this was not the case and resulted in the agreement for the restoration of the Workers roster in December.

In regard to this claim the Worker is seeking no more or no less than that is provided for under the provisions of the Public Services Agreement. The Worker entered into an agreement to provide cover for an essential element of patient meal services on the basis of regular rostered overtime. That agreement was breached in April 2020 and only restored in December 2020 following the intervention of her trade union. It was contented that based on the foregoing that the Worker is   justified in seeking compensation in line with nationally agreed principles and parameters. The Union requested that a recommendation issued upholding  the principles enshrined in national agreements by recommending that the Worker is compensated for the loss of earnings arising from the removal of her regular rostered overtime.

The Worker has lodged a claim for loss of earnings due to loss of regular rostered overtime.

The Worker has been employed with the Respondent since 2009 as a Catering Attendant and subsequently was promoted to the post of Supervisor on 3 rd May 2021. The Worker is assigned to the Operational Services Directorate within the hospital. During the period in question the Worker was earning an hourly rate of €16.24.

In addition to the contracted hours of employment (39 hours per week) the Worker was undertaking overtime from 18th March 2019 to 6th April 2020 to provide evening tea service to patients. This overtime was offered to staff in the area and it is understood from documentation that the Worker (when available) typically worked an additional 16 hours per week - 4 hours per evening Mon/Tue/Fri/Sun.

At a staff meeting on 3 rd April 2020 the Catering Services Manager (at that time) Mr R, advised staff that as a consequence of health and safety restrictions due to COVID19 it was necessary to introduce a service change to the night teas roster.

A revised evening tea service rota was developed to minimise the risk of cross contamination and reduce the footfall between hospital wards as part of the COVID-19 plan. This rota was to come into effect from 6th April 2020 and would not impact on the amount of overtime hours available to staff (152 hours), it was a reallocation of the hours to different wards. thus the pre covid-19 and covid-19 plan did not have any impact on the available hours to those who wish to participate in the delivery of the night teas service.

In an email of 3 rd April 2020, from the Catering Services Manager the following was confirmed:

There would be no change to the evening time hours worked by the staff who provided the evening tea service.

The revised rota was a re-organisation of the wards within the time frame available to provide the service to the patients.

 In an email of 8th April 2020 from the Employers line manager (WJ) to the Catering Services Manager the following was advised; The Worker withdrew her services from the evening tea service (18.30pm to 22.30pm) from Monday 6th April at her request.

The Worker continued to avail of overtime opportunities during the period in question 06th April 2020 to 20th December 2020.

At a meeting between Management, the Worker and her SIPTU representative in December 2020 (exact date unknown-minutes unavailable due to the cyber-attack) it was confirmed the Worker would recommence the evening tea service.

The Worker availed of overtime from 7th December 2020 to 3rd May 2021, up until when she then took up a promotional post of Catering Services Supervisor.

Correspondence provided as supporting documentation to this submission confirms that the change to the evening tea service did not impact on the amount of overtime that was available to the Worker and this was clearly communicated to the Worker.

The change to the rota required the Worker to work in different wards due to infection control measures that were put in place as part of the COVID-19 plan. There is no evidence to support the Workers claim that she was removed from the rota by management.

The Worker is not entitled to compensation for 'loss' for the period 6th April 2020 to 20th December 2020 as she did not participate in the evening tea service during the period at her own request. The Worker continued to avail of overtime during the specified period in question from 6th April 2020 to 20th December 2020.

Out of 37 weeks from April to December the Worker had availed of overtime on 34 occasions during 11 weeks, annual leave 6 weeks, sick leave 5 weeks.

 It is evident that overtime remained available during period 6th April 2020 to 20th December 2020 should staff be available and wish to avail of same. The Worker did not avail of "evening tea overtime", at her own request. In the circumstances, the Employer sought the Adjudication Officer to decline to make a recommendation in the terms sought by the Worker as the claim, they alleged, was not well founded.

The Parties was requested to provide additional information to give detail to the dispute.

In response to additional information provided by SIPTU the Employer stated the following;

SIPTU claims annual leave hours of 96 should also be included in addition to the 315.50 to bring the total to 411.50 based on the suggestion that this regular and rostered overtime. The Employer wished to confirm that the overtime was not regular and rostered and was available to all staff.

As per original submissions hours for evening teas in the Employer equated to 152. The Worker (when available) typically worked an additional 16 hours per week - 4 hours per evening Mon/Tue/Fri/Sun. In addition to the Worker - 5 other staff partook in the evening tea's overtime, if and when available.

A HR Representative, post the Hearing, visited the Employer premises to obtain the files containing the overtime request sheets. These files were not locatable and appear to have been removed from the catering storage area. The Employer has attempted to source documentation for the overtime/extra hours' forms. It appears some were removed from the file and/or stored offsite. These are forms based on the process within the department that provide staff with the opportunity to avail of overtime on an if and when available basis. Staff who wish to avail overtime place their name on the list and are contacted accordingly as overtime arises.

As the hours worked are varied, not rostered in advance or contracted - in the SAP weekly schedule for the employee the payment is not automatically generated through the pay record. Basic pay applies at the weekly contracted hours automatically for the Worker and all employees who avail of overtime. Subsequently, once overtime is completed an overtime hours completed form is submitted by the employee for payment in lieu of extra hours worked. This enables payment on a weekly basis for additional hours worked, which can vary — example dated 16.02.2020 and 28.11.21 was supplied.

Weekly overtime records were to be maintained within the department and the Worker featured on same. This demonstrates that the Worker, in addition to 5 other staff availed of overtime opportunities to cover evening tea hours. The HR Representative did provide a copy of the process for overtime to HR — by way of an email dated 7th November 2019 from the Catering Manager.

Standard Operating Procedure regarding overtime for all staff was devised in November 2019.

At a staff meeting on 3 rd April 2020 the Catering Services Manager advised staff that as a consequence of health and safety restrictions due to COVID-19 it was necessary to introduce a service change to the night teas roster. A revised evening tea service rota was developed to minimise the risk of cross contamination and reduce the footfall between hospital wards as part of the COVID-19 plan. This rota was to come into effect from 6th April 2020 and would not impact on the amount of overtime hours available to staff (152 hours), it was a reallocation of the hours to different wards. Thus the pre covid-19 and covid-19 plan did not have any impact on the available hours to those who wish to participate in the delivery of the night teas service.

There was zero impact on the Worker and the other parties who availed of the overtime hours.

In addition, due to queries from the Worker - in an email of 3 rd April 2020 from the Catering Services Manager to the Respondent the following was confirmed:

There would be no change to the evening time hours worked by the staff who provided the evening tea service. The revised rota was a re-organisation of the wards within the time frame available to provide the service to the patients.

Ms. WJ attended a meeting with the Worker on 6th April 2020 and her line Manager to discuss the evening tea overtime arrangements. Ms. WJ took notes at that meeting which when reviewed for documentation, no longer appear to be in the Workers file. The meeting discussed overtime and the assignment of wards. The Worker did not appear pleased with the change in ward allocation, the meeting became difficult between both parties and the Worker advised of her intention to not participate in overtime in the future. The meeting ended abruptly.

Subsequently, in an email of 8th April 2020 from Catering Services Manager to the Respondents line manager (WJ) , by way of update the following was advised:

(The Worker) withdrew her services from the evening tea service (18.30pm to 22.30pm) from Monday 6th April at her request. Ms. WJ believes the decision to retract by the Worker may have been an impulse decision at the time of the meeting. However overtime remained available at a total of 152 hours for all parties who wished to put their name forward for same. The Worker at all times was in a position to avail of same. The Worker continued to avail of overtime opportunities during the period in question 06th April 2020 to 20th December 2020 up until when she then took up a promotional post of Catering Services Supervisor.

Correspondence provided as supporting documentation to the submission confirms that the change to the evening tea service did not impact on the amount of overtime that was available to the Worker and this was clearly communicated to her.

The change to the rota required the Worker to work in different wards due to infection control measures that were put in place as part of the COVID-19 plan. There is no evidence to support the Workers claim that she was removed from the rota by management. The Worker did not participate in the evening tea service during the period in question at her own request however the option remained available to her at all times. The Worker continued to avail of overtime during the specified period in question through other service areas also.The Worker did not avail of "evening tea overtime", through a regular and rostered process as it was available to all staff and many took part. The overtime was allocated weekly and not on a rolling rostered basis. The Worker withdrew from same at her own request and up took again after a period of time.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

The parties submitted significant pre and post hearing documentation regarding the dispute.

I will not go into every detail submitted as in many cases they cancel out each other. The Employer disputed there was any evidence of any rostered overtime arrangement in place except for daily normal rosters and that all employees had to place their name on a list for overtime.

 The Employer argued that the realignment of 152 hours of overtime was to ensure no cross contamination during evening tea service, commenced on April 7th and continued as required. The impact of this change was operational, moving of staff between wards and blocks to ensure no cross contamination and there was no impact on the available hours to staff who volunteered for same.  

 Overtime availability was extended to 11pm but no loss of overtime resulted.  No overtime roster was provided, had it existed, but the Worker claimed this was a result of her and two other staff being exempt from putting their names up for overtime. There was significant dispute about both names and handwriting on various forms as to the accuracy of same. It is impossible for the Adjudicator to analyse and make a conclusion on this element of the submissions.

The amount of varying and disputed detail supplied to the Adjudicator by the Parties makes this a complex case to make a Recommendation upon based on facts. What is clear from the supporting documentation is that the Worker worked a fairly consistent overtime pattern in 2019 and worked overtime pretty much every week she was at work during that time.  However, the overtime was not regular and constant and not always worked in the exact same weekly pattern but did have a consistency to it.

The Employer states that the Worker absented herself generally from working overtime when the new work patterns in different Wards were introduced due to Covid and after a meeting between management and the Worker.

What is also clear is that overtime remained available to the Worker during the period in dispute and she sometimes, but not often, availed of it.

What is not clear to the Adjudicator is, if the Worker had been on a fairly regular and rostered pattern of overtime, why the changes to the Wards where she worked was an issue to her continuing to work overtime. What is also not clear is what motive the Employer had, if as suggested by the Worker, to remove the Worker from the overtime available.  This does not make sense. While I accept that the HR Representative states the meeting with the Worker about the proposed changes was difficult there is no evidence the Worker communicated in writing her desire to withdraw from overtime. The Worker claimed she (and two others) were absented from putting their names on the overtime list by her Manager. Unfortunately, there is no evidence of this. Also much of the documentation which could support either the Workers claim or the Employers denial of the claim has gone missing.

What is not in dispute is a fairly consistent pattern of overtime ceased fairly abruptly after the meeting with the Worker in April. The questions for the Adjudicator are was the prior pattern of overtime regular and rostered, did the Worker withdraw her availability for overtime or was the Worker taken off the overtime list by management.  On examination of the pattern of overtime in 2019 I would conclude that the overtime was fairly regular but it is disputed by the parties it was rostered. The Employer states the Worker withdrew her availability for overtime and the Worker states she was taken off the list by Management. Both positions are hard to reconcile and the evidence provided by both parties are at such variance that no logical assessment of the data provided gives an obvious answer.

The Worker submitted a claim for the loss of overtime at 1.5 times her loss which was ten thousand euros approx..  On the basis the overtime was regular but may or may not have been rostered, and on the basis there are disputed versions of how the overtime ended, which was fairly consistent before the dispute arose, I recommend that the parties consider, a once off, red circled, without admission of liability or to be used as a precedent, a payment of five thousand Euros to settle the dispute. This amount reflects fifty percent of the actual loss to the Worker and given both parties may have contributed in their own way to this dispute arising, I recommend this is a fair way of settling the dispute.

Overtime