Worker

Employer

Anonymised Parties

A Worker

An Employer

Representatives

Ms Bernadette Stenson Irish Nurses and Midwives Organisation

Ms Emily Maverley IBEC

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 - 00005777

02/12/2025

This matter came before the WRC dated 02/12/2025 as a complaint seeking adjudication by the WRC under section 13 of the Industrial Relations Act, 1969.

The aforesaid dispute was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 19/06/2026. 

The Worker is a nurse.  The Respondent is a Hospital. 

The Worker’s claim relates to a loss of earnings incurred as a result of having to undergo mandatory training.

The Employer refutes the claim in its entirety. 

Both parties provided written submissions and supporting documentation in advance of hearing for which I am grateful.     

The matter relates to loss of earnings claim taken by the Worker against her Employer for losses incurred over a period of 20 weeks of mandatory upskilling imposed by her Employer from 26 June to 2023 until 11 December 2023 inclusive.  The mandatory upskilling resulted in the Worker’s shift pattern being changed from shift work (inclusive of days, nights and weekends) to Monday to Friday core hours with a flat rate of 19.5 hours.

As a result the Worker lost out on premium payments for unsocial hours, nights and weekends for a period of 20 weeks.

Prior to commencing the upskilling the Worker raised concerns with her line manager in respect of potential losses of earnings.  The Worker raised a grievance on 25 January 2024.  The Employer refused her grievance on 3 May 2024. 

Case law cited:

LCR19995 HSE v Medical Laboratory Scientists Association, Irish Municipal, Public and Civil Trade Union

HSE Circular 018/2023:

“statutory and mandatory training shall be provided to the employee free of cost, count as working time, where possible, take place during working hours.”

As a result of undergoing mandatory training it is submitted the Worker has had to pay a cost – namely the loss of her premium payments. 

It is submitted the Worker has incurred a net paid loss of €3,314.72 over the 20-week rotation programme and the claim is for loss of earnings in that amount. 

The Worker at hearing sought to ventilate other matters outside of the scope of this dispute as presented which is the discrete matter of her claim for losses incurred over the 20 week rotation programme. 

The Worker commenced employment with the Hospital on 19 June 1995 and transferred from CCU to CPAU on 12 June 2017 before transferring back to the CCU on 05 October 2020 where she is engaged in a part-time capacity as a Nurse.

In her claim form to the WRC, the Worker alleges a loss of earnings to the approximate net amount of €1,646.44 during the period she was engaged in a required rotation in the Cath Lab. Further, the Worker has alleged that she appeared to be the only staff member from her cohort who was asked to undertake the training and is seeking reimbursement of the alleged loss of earnings.

The Employer refutes this claim in its entirety and, strictly without prejudice to the aforementioned preliminary matters, contend that the Worker’s participation in the rotation in the Cath Lab was at all times a core and expected part of the Worker’s role in the Coronary Care Unit (CCU), which she was aware of and accepted.

It is the Hospital’s position that the Worker at no time suffered a financial loss, but rather, was remunerated for actual hours worked. The Hospital respectfully submits that what the Worker in this instance is seeking payment in respect of premia for patterns and hours of work of which she did not work. The Hospital would not be in a position to, nor would be it be appropriate for the WRC to recommend the Hospital to, pay any worker employed in respect of hours and shifts not actually worked. Thus, the Hospital is respectfully requesting the Adjudication Officer find in favour of their position as set out hereunder.

The rotation referred to encompasses a 10-week educational, competency-based rotation programme, implemented within the Hospital in 2014 and is a requirement of all CCU Nurses. Following completion of the rotation, Nurses are deemed competent to participate in the Cath Lab on-call roster and are required to be available every 7 weeks for at least one on-call shift. Each call-out brings with it a payment of €175, a payment agreed with the Hospital and INMO through collective negotiations.

As the rotation is a requirement of all CCU Nurses, as a practice that is firmly established within the Hospital, and involves CCU Nurses working in accordance with the Cath Lab’s working hours (Monday to Friday), the Hospital submits that this claim, although referred individually, would apply to all those of whom have participated in it to date, approximately 25 and to those who will be required to participate in in the future. This claim is directly connected with the rates of pay of a body of workers during the rotation period. 

It is respectfully submitted that section 13 (2) of the Industrial Relations Act, 1969 precludes an Adjudication Officer from investigating a trade dispute that is connected with the rates of pay of a body of workers, and provides as follows:

“Subject to the provisions of this section, 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”.

The Hospital is concerned that this matter has been taken as an individual trade dispute before the WRC, given the collective implications and potential contagion any recommendation in concession of this claim may have. This is clearly not an individual matter, and the Hospital therefore submits that the WRC does not have jurisdiction to adjudicate upon it as such. 

Furthermore, any concession in favour of the Workers claim would have cost increasing consequences on the Hospital, who already operate in a sector with limited budget availability and who are presently limiting overtime, and would be in direct contravention with the provisions of the current Public Service Agreement 2024-2026. 

It is the Hospital’s firm position that no loss of earnings has occurred in this instant claim. The rotation referenced and subsequent requirement to engage in the On-Call Cath Lab roster are a core part of the Workers role as a CCU Nurse, which she was aware of prior to recommencing in her role. The Claimant is a long-standing employee and would be well-aware of the operational hours of work of the Cath Lab.

Case law cited by the Employer

National Museum of Ireland, Museum of Country Life v Noreen Ward [LCR22370]

Shannon Airport Authority v A Worker [2013] AD1389

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

I note that before the Worker returned to the CCU in October 2020 a discussion had taken place with the ADON during which it appeared to have been agreed that her return would be on the understanding that a rotation to the Cath Lab which had become a requirement for the role, in the intervening period since the Worker had last worked in the CCU in 2017, would be undertaken by the Worker.

I note the Worker participated in the rotation over a 20-week period.  The Worker did not work her shift pattern for the duration of the rotation; she worked core hours Monday to Friday over a 20-week period in her case as she is a part-time worker and job sharer.

I note the rotation commenced on 19 June 2023 and the Worker duly participated in same.  I note the Worker raised her concern with the Employer at a meeting on 17 May 2023 regarding the loss of earnings that she would incur without her night duty and Sunday premium allowances.  It appears there was a commitment by the Employer to investigate and revert which did not occur. 

I note the Worker continued to pursue the matter in the absence of a definitive response culminating in the within referral.

I am of the view the Worker should have been told at the very outset that she would not be paid her shift premia.  Instead what she received was prevarication in circumstances where it was known or ought to have been known that the Worker would not be paid for shifts not undertaken. 

It is well established that unsocial hours / hours worked outside of standard working hours attract a shift premium.  It is equally well established a worker will not be paid in respect of hours or shifts not actually worked.      

I note the Worker’s hours of work during the rotation were standard working hours which do not attract a premium and she was paid accordingly which was her basic salary.  

Had the Worker been told at the outset when the issue was first raised that she would not be paid her shift allowance she could have elected not to undergo the rotation having made an informed decision not do so.  Clearly this would have meant that the Worker’s transfer back to the CCU would not have been sanctioned in circumstances where the rotation in the Cath Lab had become a role requirement for those working in the CCU but this was a choice for her to make at that time as she considered the financial impact. 

I note the passage of time since the matter was first raised by the Worker on 17 May 2023 until the date of hearing 19 June 2026 – over three years and the lengths the Worker has had to go to in order to resolve this issue which should have been resolved within a very short time after she had raised; in fact I am of the view it should have been resolved the minute she raised it when she should have been unequivocally told she would be not be paid a shift premium in respect of hours or shifts not actually worked.  I conclude there has been an inherent unfairness in the manner in which this matter was dealt with the Employer.  

For completeness, I note the Employer has raised a preliminary matter in respect of my jurisdiction by the application of section 13(2) which precludes me from investigating a trade dispute that is connected with the rates of pay of a body of workers.  I am not entirely convinced that the Worker forms part of a ‘body of workers’ in this particular instance as she and her job-sharing colleague appear to be those whose contract of employment does not provide for this mandatory training. 

Section 13 (2) of the Industrial Relations Act 1969 provides as follows:

“Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay, of hours or times of work, or annual holidays of a body of workers) exists or is apprehended and involves workers within the meaning of Part Vi of the Principal Act, a party to the dispute may refer it to a rights commissioner”.

Having regard to the foregoing, it is apparent that the subject matter of this dispute may have a consequent effect for a body of workers albeit not necessarily among this Worker’s cohort. 

The ‘body of workers’ that could potentially be impacted if I recommended that the Worker should be paid her shift premium for shifts not actually worked is considerably more and could involve any shift worker in receipt of a shift premium and who for any reason reverts to standard hours for a period of time and then claims payment of their shift premium. 

Notwithstanding, I do find merit in part in this dispute.

The purpose of the hearing is to find a way forward for both parties which is fair and reasonable in order to maintain the employment relationship into the future and to this end I note the Worker remains in live employment with the Employer. 

For the avoidance of any possible doubt I do not recommend the Worker should receive her shift premia for the duration of the 20-week rotation during which she worked standard hours.

I recommend that which is set out hereunder in the circumstances as set out above where I find merit in part in this dispute.