Worker

Employer

Anonymised Parties

A Medical Technician

A Hospital

Representatives

Barnaba Dorda                   SIPTU

Eamonn Ross Employee Relations Department

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 - 00001465

20/06/2023

This matter was heard over the course of three separate days by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearings were set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely.  I am also satisfied that I was in a position to fully exercise my functions, and I made all relevant inquiries in the usual way.

 In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that all formal hearings should be conducted fairly and both sides need to be heard.

The hearings were not conducted in public as it concerned a dispute brought under Section 13 of the Industrial Relations Act of 1969.

Industrial Relations disputes are primarily heard on the basis of factual submissions provided by the respective parties. Relevant parties might be invited to give an oral recollection of events, facts and matters within their knowledge. Testimony may be subject to rebuttal by witnesses or other relevant contradicting evidence (such as documentation or workplace records etc) provided by the other side.

The Complainant was fully represented by his Trade Union Official. The Complainant gave evidence on his own behalf and in-depth oral and written submissions were made on the Complainant’s behalf by his representative.  I was provided with a comprehensive submission dated the 10th of November 2023 and some supplemental documents arrived in the course of the hearing including the Complainant’s Contract of Employment which I had requested sight of, and which was delivered a number of days after the last day of hearing.

No objection was raised to any of the materials relied upon by the Complainant in making his case.

It should be noted that the Dispute herein was lodged with the WRC alongside  a number of other complaints but that these other Complaints were subsequently withdrawn. Much of the three days of evidence was therefore taken up with matters that no longer require Adjudication.

The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 20th of June 2023. The text of the Complaint Form reads as follows:

The Complainant…

“……  was removed from on-call duties around 25th of July 2022. [The Complainant’s]  understanding is that this decision was based on an investigation into two allegations made against him, and was subsequently extended in October 20222 after the hospital referred the matter to CORU.

The removal is a decision linked to the investigation and disciplinary process initiated around 25th of July 2022 and furthermore, associated with the Hospital decision to report incidents to CORU.

The Hospital claims that the removal was done upon some undisclosed risk assessment.

However, [The Complainant] believes that other [in his profession], who happens to be Irish, in somehow similar circumstances were not removed from on-call duties.

Such removal from on-call duties is leading to significant financial loss and there seems to be no provision in any hospital policy allowing Hospital to do so.

In any case, if an employee was put on administrative leave, suspended pending some investigation processes, he/she should not be suffer any financial detriment as result of it.

Such removal, which inevitably attracts financial loss, could be perceived as an additional penalisation and or unnecessary detriment to our member.

There was an attempt to resolve the matter at the WRC mediation in February 2023 and again, in direct correspondence with the hospital at the end of April 2023, but to no avail.

The removal is ongoing and [the Complainant] still is not assigned to on-call duties, while other his colleagues are

The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Respondent entity was represented by its Employee Relations Manager.  The Respondent provided the WRC with a written submission (concerning the IR issue) on the 17th  day of November 2023. I have additionally heard from a number of witnesses for the Respondent including two witnesses working alongside the Complainant in the Hospital Department. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case.

The Respondent witnesses were challenged as appropriate by the Complainant representative.

The Respondent asserts that the circumstances allowed the …

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully considered the evidence adduced by both sides to this dispute.

The Complainant was engaged in the Respondent Hospital in the area of technical diagnostics. The Complainant’s employment commenced in July of 2016. The Complainant was appointed to an approved Salary Scale when he commenced his Employment and it is assumed that the Complainant worked himself up the scale in the intervening period.

In 2022 the Complainant seemed to be on a basic rate of pay of €1,878.78 per fortnight which put the Complainant at a core basic Gross Pay of in and around €48,000.00 or €49,000.00 per annum. The Complainant submission notes that:

“Our member works approximately 40 hours per week, but in addition to that he was assigned to do the on calls.”

I can see from the Payslips provided that the Complainant could supplement his core pay with Overtime and with other allowances including On Call allowances. It is clear that the On Call allowances raise the Complainant’s final remuneration figure considerably.

In the course of 2022, the Complainant had had a number of issues in the workplace which had culminated in an unfortunate situation which arose overnight on the Saturday 22nd to Sunday  23rd of July. The Complainant was at home and was on call. The Complainant slept through various attempts (by phone, text and WhatsApp) to get him into the Hospital to attend to a number of diagnostic matters that required immediate and urgent attention.

Ultimately the Hospital had to look elsewhere, and the danger posed to patient care was averted.

On 25th of July 2022 the Complainant was notified that given he had failed to respond to these 12 phone calls and communications from switch board and other phones while on call on Saturday night and upon advice from HR Manager K, he was suspended from all on call duties

“Indefinitely pending full investigation of the incident and due disciplinary process”

Furthermore, it seems that as the Complainant had failed to complete a second query raised earlier that evening the decision was being made (by the Complainant Management) to refer these issues to CORU – which is an independent body regulating social and health care professionals. The Complainant was bound to answer the allegations of not maintaining high standard of personal conduct and behaviour and of putting others at risk

This Complainant makes the case that taking the Complainant off the On Call duty gave rise to a considerable financial burden. The Complainant’s representative made the point that the Complainant’s conduct was under investigation and that in such circumstances a suspension – even a partial suspension as in this case – should normally be imposed on full pay. I can understand the Complainant’s logic in this regard save that of course the Complainant is not being suspended was not suspended and was in fact still expected to do his 40-hour week in the Hospital to earn his core payment. What was now being denied to the complainant was an entitlement to earn extra pay through the requirement to have on Call facility in the evening and over the weekends.

The Respondent flatly rejects this argument in circumstances where there are no gratuitous on Call payments if On-Call hours have not been worked. This payment can only be made when the work has been done. As the Respondent puts it:

“Payment for on call is contingent on the employee participating fully on the Roster. It is not a protected payment and is only payable to those who participate fully in the roster.”

I find I accept that the Respondent’s position is the correct one. The Complainant has not lost his core pay and has instead been unable to avail of the On-Call Roster. The Respondent could not, in all the circumstances, allow the Complainant to continue to perform On-Call duties in circumstances where his recent performance had demonstrated such a profound lack of professionalism.

Belatedly, I think the Complainant had more insight into the position and I note he did not resist the case made to CORU and has accepted the uncontested findings of that body.

I appreciate that this has been financially very difficult for the Complainant who asserts that the loss to him is in and around €400.00 or €500.00 per week. This has been extremely difficult for him and his family. However, the blame lies with the Complainant whose workplace performance was a cause of considerable worry among Management.

As noted, Section 13 of the Industrial Relations Act of 1969 empowers me to make a recommendation or recommendations to disputing parties and on foot of any investigation so conducted. In making such recommendations I am obliged to set out my opinion on the merits of the dispute and the positions taken by the parties thereto. Any consideration on the merits of the dispute will include an examination of the efforts made by the parties to exhaust any and all internal procedures or structures which ought to have been utilised before bringing the dispute to the attention of the WRC.