FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DAUGHTERS OF CHARITY (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY THOMAS O'REILLY) DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Ms Ni Mhurchu |
1. Appeal of Recommendation of a Rights Commissioner r-120964-ir-12/JC.
BACKGROUND:
2. The Daughters of Charity Service provides a wide range of supports to people with varying degrees of intellectual disability in a number of centres around the country. The Claimant was employed as a Senior Staff Nurse at the Navan Road centre on an 'if and when required ' contract since 19th September 2006. In line with the terms of her work contract she works shifts that she indicates are suitable for her. The number of shifts available will vary each month depending on the numbers of other staff on annual leave, sick leave et cetera. The Claimant is seeking to have her work contract varied and be given more hours on night shifts as this suits her personal circumstances.
The issue involves a claim by a Worker. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 4th October, 2012, the Rights Commissioner issued her Recommendation as follows:-
"The issue in dispute between the parties is that the claimant is seeking that her contract specifies a definite working hours obligation. The respondent accepts that the claimant is employed on a permanent basis and their position is that the claimant is required to work when the exigencies of the service so require e.g., to fill vacancies arising from sick leave, annual leave etc.,and that is the basis on which she has worked for them since 2006.
In the context of the claimant's work pattern and work location/s to-date, I recommend that the respondent issue the claimant with a permanent contract that reflects the situation that exists i.e., that the respondent will provide working hours to the claimant as and when the exigencies of the service require her e.g., to fill vacancies arising from sick leave, annual leave etc., and that the claimant will be obliged to accept the work. I also recommend that the claimant re-consider her position in relation to the extra hours of work offered to her by the respondent".
On the 6th November 2012 the Worker appealed the Rights Commissioners 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 8th February, 2013.
WORKER'S ARGUMENTS:
3. 1. The substantive issue of specified minimum guaranteed hours on her contract of employment was not addressed by the Rights Commissioner in her Recommendation.
2. The current contract is extremely precarious and leaves the Claimant in a very vulnerable position in light of her financial situation. The Claimant has given almost 30 years of loyal service to the Employer, it is unfair and unjust to continue to leave her on a contract that provides her with no security of employment.
EMPLOYER'S ARGUMENTS:
4. 1. The Claimant is employed on an 'if and when required contract'. Her signed contract provides as follows " You have indicated your availability for duty when the exigencies of the service so require..." Her contract also provides that she may be rostered over seven days of the week and the contract includes unsocial hours and night duty.
2. The Claimant is not obliged to accept any offer of employment under her contract. If the Claimant intends to challenge the legality of her contract, the Daughters of Charity will draw her attention to the Labour Court's Recommendations numbers FTD104,105 and106, and the European Court of Justice's case number 2004/C3000/21 in order to support their position.
DECISION:
The Court has carefully considered the submissions of both parties to this dispute.
In 2005 the Appellant resigned a permanent post with the Employer. Shortly afterwards she applied for casual work with her former Employer indicating a preference for night work. After a number of years she was successful in a competition for permanent work with the Employer. She decided to reject an offer of permanent employment as she was not in a position to work a rotational shifts pattern that is a condition of employment for all new Employees. She continued working casual shifts to suit her circumstances.
She is now seeking to convert the casual of “if and when required” nature of her employment contract into one that guarantees her full time work on shifts of her choosing. The matter was referred to a Rights Commissioner.
The Court does not recommend concession of this claim as it would have serious consequences for a number of other nurses currently employed on “if and when required” contracts of employment and would undermine the commitment to shift rotation that is now a condition of employment for all permanent Employees since circa 2005.
The Court instead decides that the Employer should, in the context of the Claimant’s work pattern and work location/s to-date, issue the her with a permanent contract that reflects the situation that exists i.e., that the Employer will schedule the Claimant into work as and when the exigencies of the service, require her attendance e.g., to fill vacancies arising from sick leave, annual leave etc., hours , including roster gaps and other vacancies that arise in the units in which she has refused work heretofore. The Court further decides that the Worker concerned should be obliged to accept the work offered in the context of a reasonable roster that provides her with reasonable advance notification of her working hours.
In line with the Rights Commissioner’s Recommendation in this case, this would have the effect of converting the “if and when required” nature of her contract into a “zero hours” contract and thereby bring it within the scope of the Organisation of Working Time Act 1998.
The Rights Commissioner’s Recommendation is varied accordingly.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
5th April, 2013______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.