INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969
WATERFORD HOSPICE MOVEMENT LIMITED
- AND -
(REPRESENTED BY IRISH NURSES ORGANISATION)
Chairman: Ms Jenkinson
Employer Member: Mr Doherty
Worker Member: Mr O'Neill
1. Non-implementation of staffing review.
2. The Waterford Hospice Movement Limited employs the staff of the Waterford Home Care Services to provide specialist pallative care to patients in the city and county of Waterford. An Employment Appeals Tribunal Agreement was reached in July, 2004, between the Claimant and a female colleague and the Waterford Hospice Movement Ltd, following their claim of unfair dismissal in January, 2003. The agreement, which has a thirty month duration from its issue date, provides for the re-instatement of the Claimant and his female colleague to their former positions in the event that there is an expansion of the service such as to warrant the employment of additional Nursing staff in the service.
- The dispute before the Court concerns a claim by the Union, on behalf of the Claimant, regarding the non-implementation of an independent staffing review entitled "Review of the Waterford Home Care Services on behalf of the South Eastern Health Board", conducted in October, 2003, which recommends increased nursing staff levels. The Union contends that implementation of the review would result in the re-employment of the Claimant.
On the 7th April, 2006, the Unionreferred the issue to the Labour Court, in accordance with Section 20(1) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 27th June, 2006.
The Company did not attend the Labour Court hearing but forwarded a written submission stating that as a result of an audit in 2002, which highlighted the productivity of its existing staff, equivalent to five whole time nurses, was actually less than the period when it employed three whole time nurses and costs had increased at an alarming rate. As a result of these findings, it was decided by management to discontinue the services of the part-time nurses i.e the Claimant and his female colleague. The Waterford Hospice Movement Ltd has not expanded its service. its existing staff levels are exactly in line with that recommended in the National Strategy Plan as published in 2001 and it is also in line with recommendations from the Health Service Executive review.
The Union agreed to be bound by the Court’s Recommendation.
3. 1. The Claimant is seeking re-instatement to his position as job-sharing Nurse with the Waterford Hospice Movement Limited, on the same terms and conditions of employment he enjoyed with it prior to his dismissal. The implementation of the recommendations contained in the "Review of Waterford Home Care Services on behalf of the South Eastern Health Board", would ensure this re-instatement. The Claimant is also seeking a measure of monetary compensation in lieu of the stress and distress caused to him by the failure, on the part of the Company, to implement the staffing recommendations of the report.
The claim before the Court brought under Section 20(1) of the Industrial Relations Act, 1969, concerns the non-implementation of an agreement dated 14th July 2004 reached as a result of an Employment Appeals Tribunal (EAT) case concerning the worker’s dismissal from the Hospice. This agreement, which was in full and final agreement of all claims arising from the termination of the claimants’ employment, stated at (a):
- (a) In the event that the Respondent’s undertaking is expanded in the future such that there is a requirement for additional nursing staff, the Respondent agrees to offer the claimants employment on the terms and conditions that were applicable at the date of their dismissals. The said agreement will expire 30 months from the date thereof.”
- [There were two claimants involved at the EAT]
The Union claimed the Hospice should have implemented an independent staffing review entitled “Review of the Waterford Home Care Services on behalf of the South Eastern Health Board”. Had the Hospice done so it would have increased its staffing levels and consequently in accordance with the “EAT Agreement” the Hospice should have re-employed the worker.
The Employer did not attend the Court hearing, however, a written statement was sent to the Court outlining its position.
The Court notes that the Hospice advertised for a Locum position in May 2005, which the worker did not apply for, however, no evidence has been put forward to suggest that any new posts were either created or filled by the Hospice since the date of the EAT Agreement in July 2004.
Having considered the positions of both sides the Court accepts that the EAT Agreement was the final position agreed between the parties and as the Hospice have not sought to expand its services, the Court cannot see how it has departed from the agreement reached at the EAT. Therefore, the Court does not find in favour of the worker’s claim.
The Court so recommends.
Signed on behalf of the Labour Court
7th July 2006______________________
Enquiries concerning this Recommendation should be addressed to Joanne O'Connor, Court Secretary.