INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
ST. VINCENTS PRIVATE HOSPITAL.
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
(REPRESENTED BY IRISH NURSES ORGAINISATION)
Chairman: Ms Jenkinson
Employer Member: Mr Grier
Worker Member: Mr O'Neill
1. Appeal against Rights Commissioner's Recommendation R-036896-Ir-05/DI
2. The case before the Court is an appeal by the employer of Rights Commissioners Recommendation R-036896-Ir-05/DI. The dispute concerns annual leave entitlements for a nurse employed by St Vincents Private Hospital, working night shifts only on a part-time basis, having previosly worked full-time on day duty. The Union is claiming that the contract of employment states that the annual leave entitlement is 44 days and the worker was informed that this would not change when she began part time working. The Union claim that Management subsequently reduced the annual leave entitlement.
Management's position is that the worker is in receipt of the correct annual leave entitlement albeit on a pro rata basis due to her change in status from full time to part time.
As the dispute was not resolved at local level, it was referred to a Right's Commissioner for investigation and Recommendation. His Recommendation issued on the 27th March, 2006 as follows:
The claimant's contract of employment of the 18th of August 2000 states that the claimant has an annual leave entitlement of "44 days inclusive of public holidays."
The hospital have argued that as the claimant has never worked a 40-hour week with the respondent, she should never have been in receipt of the extra week's annual leave as no staff employed since mid 1999 have been in receipt of same. While I recognise that the annual leave entitlement set out in the claimant's contract of employment was included in error, it does not change the fact that this was the contractual terms offered to the claimant and accepted by her. Furthermore, the respondent has accepted that some nurses are still in receipt of this unwarranted extra weeks annual leave.
I therefore find in favour of the claimant's complaint in that I recommend that her annual leave entitlement be reinstated with retrospective effect. The claimant should retain her additional annual leave entitlement until such time that her entitlement is changed by agreement with the claimant or through a collective agreement.
I find against the claimant's complaint that she be compensated for unnecessary stress and loss of trust as a result of the consequent of a breach of her contract.
On the 19th April 2006, the employer appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court Hearing took place on the 30th June, 2006
3. 1. The worker was informed that her annual leave entitlement would not change when she began part-time work on night duty. Her entitlement was subsequently reduced by her employer, which is contrary to both her contract of employment and assurances given by Management in relation to her change of status at the time.
2. The worker is being treated less favourably because of her part-time status. This is unacceptable and in breach of legislation and good industrial relations practice. Management have also made no effort in engaging to resolve the dispute at local level.
4. 1. The worker is receiving the correct annual leave entitlements on a pro-rata basis as she is currently working part time.
2. Management have not breached her contract of employment nor are they treating her less favourably than comparable full time workers. The worker is actually receiving more than her statutory entitlement.
3. The annual leave expressed in some contracts of employment is based on a 5 over 7 roster (including rostered days off) amounting to 35 days plus 9 Public Holidays and on a 5 over 5 roster (excluding rostered days off) equating to 25 days plus 9 Public Holidays in other cases. Whichever method of calculation is used, the annual leave entitlement is the same.
This is an appeal by the employer of a Rights Commissioner’s Recommendation, which found in favour of the claimant’s claim for the re-instatement of 44 days leave inclusive of public holidays. Hospital management claimed that the Rights Commissioner erred in his ruling in that he did not understand the nature of the 44 days annual leave entitlement. It held that the claimant’s contractual entitlements are been respected.
Having considered the views of the parties expressed in their oral and written submissions, the Court notes that the claimant’s contract of employment dated 18th August 2000 states that she is entitled to 44 days annual leave inclusive of public holidays (35 annual leave plus 9 public holidays) and that her normal working hours are 39 hours per week. It also states that her actual hours of duty will be as notified on a weekly basis.
The Court finds that with effect from 19th February 2003 when the claimant transferred to night duty, working five nights every second week, i.e. on a part-time basis, she became entitled to a prorata entitlement to 77% of the full time workers’ annual leave allowance (60 hours per week compared to 78 hours for full time workers).
Having considered the matter in detail the Court is satisfied that the 35 days are made up of both rostered and non-rostered days and allows for different types of duty hours as allocated by management. To reinforce the Court’s conclusion on this point the Court is satisfied that the Union has not put forward any sustainable argument to suggest that the claimant is entitled to in effect 7 weeks + leave. The Union fully accepts that the basic leave entitlement for this grade is 4 weeks + 4 days leave.
Furthermore, the Court is satisfied that there were no arguments made by either side to suggest that the claimant’s annual leave entitlement included additional days accrued as a result of the introduction of a 39 hour week, whereby workers who maintained a 40 hour week received extra days per year in lieu.
When account is taken of the fact that the Hospital operates over seven days and individual workers are rostered on different duties over those seven days, it is understandable why the Hospital expressed the annual leave days in the context of 5 over 7 days rosters.
However, the Court is of the view that it might be more transparent in such circumstances to express the leave in terms of an annual bank of holiday hours, which may be drawn down and used when one is rostered for duty.
Finally, the Court is satisfied that in addition to public holiday entitlements; the claimant’s annual leave entitlement is a pro rata entitlement of:
-basic leave entitlement of 24 rostered days
As the claimant works five twelve-hour shifts per fortnight, in terms of her annual bank of holiday hours, the Court concludes that the claimant’s entitlement is as follows:
- 77% of 27 days x 7. 8 hour days =
162 hours per annum – this is equivalent to 13.5 rostered shifts off,
plus her public holiday entitlement.
The Court so decides.
Signed on behalf of the Labour Court
17th July 2006______________________
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.