LCR22994

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00046152 (CA-00057018)

BACKGROUND:

The Employer appealed the Adjudication Officer’s Recommendation to the Labour Court on 20 December 2023 in accordance with Section 13(9) of the Industrial Relations Act, 1969. On 1 December 2023 the Adjudication Officer issued the following Recommendation:

“I have reviewed the submissions and presentations from the parties and make the following recommendation in full and final settlement of this dispute:

The respondent pay for all outstanding weekend payments with effect from the 22nd March 2022.

Comparative hours accumulated by virtue of the relativity of the rosters to be compensated to the claimant through TOIL – time off in lieu. Any dispute arising about the amount of hours, will be verified independently by a manager from outside the claimant’s work location.

TOIL will be taken by agreement with the claimant’s line manager.

The claimant will remain on his current assignment until such time as the collective dispute – of which he is part – is finally resolved. Going forward the claimant will be treated in all respects as if he were on his normal line in the Theatre, while remaining on his current assignment, until the overarching issues in dispute are settled.

The respondent pay the claimant a compensatory sum of €5,000 compensation for the distress arising from the delay in responding to his complaints. All monies owed will be paid to the claimant within 4 weeks of the date of this recommendation.

This recommendation is issued in response to the unique circumstances pertaining in this dispute and cannot be relied upon or invoked at any other forum.’’

A Labour Court hearing took place on 25 June 2024.

DECISION:

This is an appeal by the HSE of an Adjudication Officer’s Recommendation in relation to a complaint by a worker against his employer.  The Adjudication Officer recommended that: -

“I have reviewed the submissions and presentations from the parties and make the following recommendation in full and final settlement of this dispute :

The respondent pay for all outstanding weekend payments with effect from the 22nd.March 2022. Comparative hours accumulated by virtue of the relativity of the rosters to be compensated to the claimant through TOIL – time off in lieu. Any dispute arising about the amount of hours, will be verified independently by a manager from outside the claimant’s work location.

TOIL will be taken by agreement with the claimant’s line manager.

The claimant will remain on his current assignment until such time as the collective dispute – of which he is part – is finally resolved. Going forward the claimant will be treated in all respects as if he were on his normal line in the Theatre, while remaining on his current assignment, until the overarching issues in dispute are settled.

The respondent pay the claimant a compensatory sum of €5,000 compensation for the distress arising from the delay in responding to his complaints. All monies owed will be paid to the claimant within 4 weeks of the date of this recommendation. T

his recommendation is issued in response to the unique circumstances pertaining in this dispute and cannot be relied upon or invoked at any other forum”.

The dispute before the Court arises from the temporary reassignment off the worker from his post in orthopaedic theatre to work as a general theatre operative. The reassignment has two distinct elements. Firstly, the worker was temporarily reassigned from his duties during COVID at his own request. As that was a voluntary agreed move, the parties are agreed that no payments arise for that period of his temporary reassignment. In March 2022, the worker was deemed medically fit to return to his orthopaedic theatre post, however, it was not possible to reassign him to those duties due to a separate and ongoing industrial relations dispute in the orthopaedic theatre unit. The union submits that the worker is seeking a resolution to an impasse which has arisen through no fault of his own. When he sought to return to his original post, he was informed that he could not do so because of the ongoing industrial dispute in that area. Other colleagues involved in that dispute were place on protective assignment and continue to be treated for pay purposes as if they are still rostered to work in that unit.  Since March 2022 there has been no Covid related impediment to the worker returning to work in his original post and the level of earnings that he had enjoyed before his Covid related transfer. Although prevented from returning to that post, his associated losses - which includes losses for weekend working, overtime, premium payments, annual holiday premia – have not been met by the employer.

The worker seeks a return to his role in the orthopaedic theatre unit with all financial losses from March 2022 to date met by the employer, or alternatively that he is given equal treatment as his colleagues who similarly are prevented from working in the orthopaedic theatre unit, but who were treated for pay purposes as if they're still working in that department. The worker further seeks that he be covered by any future beneficial agreement that may be achieved through the collective process in relation to the collective dispute. Finally, the union submits that the worker should be compensated for the employer's blatant failure to address the workers issues through the normal internal procedures.

Management submits that the worker is part of a collective dispute which is currently under the auspices of the Workplace Relations Commission (WRC), and whether or not the worker will return to the orthopaedic theatre unit will be determined through that WRC process. Management is happy to apply the principle of the public service agreement scheme 2010 in this case if agreement is reached.

Management accept that the worker should not be financially disadvantaged since March 2022. It accepts that he should be paid for weekends/public holidays/holiday premium that he was due to work to ensure that no losses of earnings arise while he is on protective assignment, however, the amount of losses sought by the worker are disputed.

Management do not have an issue with a number of aspects of the Adjudication Officer’s Recommendation, however, and it cannot accept the aspect of the Recommendation in relation to TOIL, as it submits that there is no TOIL (time off in lieu) owing or arising in this case. The Court has given careful consideration to the oral and written submission of the parties.

The Court is conscious that the matter in dispute is a protracted one that has arisen through no fault of the worker.  It is accepted that the worker should not suffer financially while on a protective assignment and that financial losses incurred by him to date should be reimbursed. However, the amount and nature of those losses are disputed.

The Court recommends that the worker is paid without delay all outstanding earnings in respect of loss of premia earnings (for weekends/public holidays/holidays).

The Court further recommends that the worker is paid the sum of €5,000 in compensation for the delays in responding to his complaints.

The above recommendation is issued in response to the unique circumstances pertaining to this dispute in full and final settlement of the matter referred to the Court.

The Court notes that certain aspects of the individual dispute before the Court forms part of a collective dispute which is currently the subject of a conciliation service under the auspices of the WRC. The Court makes no recommendation in respect of that matter.  The Court however notes that the outcome of that process may have implications for the worker as he is encompassed by that process.

The Court so recommends.

	Signed on behalf of the Labour Court
	Katie Connolly
TH	______________________
5th July 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Therese Hickey, Court Secretary.