INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
SOUTHERN HEALTH BOARD
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Ms Owens
Employer Member: Mr Keogh
Worker Member: Ms Ni Mhurchu
1. Appeal against Rights Commissioner's Recommendation RC276/97.
2. The dispute involves one worker, formerly a staff nurse, who applied, successfully, for the post of Acting Nursing Officer at the Midleton Day Hospital, in 1993. He was appointed to the permanent position of Nursing Officer in mid-1996. The Union claimed, on behalf of the worker, that, during the period he was employed as Acting Nursing Officer, he was discriminated against by the Board in that it had refused to make Sunday work available to him. The Union claimed that other Board employees had been treated differently from him and that his income had been reduced by some £6,000 as a result of the Board's actions. The worker had sought compensation under the 'Castlerea Formula' but was deemed to be ineligible as his position was temporary.
The Board rejected the Union's claim and the dispute was, subsequently, investigated by a Rights Commissioner who found that the Board had not responded adequately to the precedents quoted by the Union. He recommended that the Board pay to the worker an ex-gratia lump sum of £3,000 in full and final settlement of his claim. The Board appealed the Rights Commissioner's Recommendation to the Labour Court, on the 7th of October, 1997, in accordance with Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal, in Cork, on the 25th of February, 1998.
3. 1. The worker has not been treated differently, as argued by the Union, to other psychiatric nurses, particularly in the Kerry area, who are allowed to return to the parent hospital for Sunday work. There have been no recent appointments in the Community which would allow for this facility and the staff who did get the facility did not apply for the posts voluntarily but were assigned to the posts pending the appointment of a permanent Nursing Officer. The worker was not involved in loss of earnings in respect of his promotion to the post in Midleton Day Hospital and since his permanent appointment, he is entitled to make a claim for compensation under the Castlerea Formula.
2. The Rights Commissioner erred in concluding that there is merit in the Union's claim as the claimant was already paid adequate compensation by being placed at the maximum of the Nursing Officer's salary scale and also being paid social inconvenience and occupational therapy allowances.
4. 1. Nurses working in a similar position to the claimant (details supplied to the Court) not claiming compensation in line with the Castlerea Formula were given the option of receiving two allowances or of accepting one allowance and working weekends/night duty. The worker was not given this option.
2. The discrimination against the worker has resulted in substantial loss of earnings to him (details supplied to the Court) and he should be compensated accordingly.
Having considered the submissions from the parties, the Court has concluded that the Board's position should be upheld. The Court also notes that the Castlerea Formula is now available to the claimant and he may wish to pursue that avenue with a view to receiving compensation for loss of earnings.
The Court upholds the appeal and so decides.
Signed on behalf of the Labour Court
13th of March, 1998______________________
Enquiries concerning this Decision should be addressed to Michael Keegan, Court Secretary.