INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
HEALTH SERVICE EXECUTIVE SOUTH
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Mr Haugh
Employer Member: Mr Murphy
Worker Member: Ms O'Donnell
1. Appeal of Rights Commissioner Recommendation No: r-140920-ir-13/GC.
2. This case is an appeal by the Worker ("the Complainant”) of Rights Commissioner Recommendation No. r-140920-ir-13/GC . The Complainant commenced employment with the Respondent in a support staff position in March 2006. He subsequently availed of the scheme provided for in HSE Circular 007/2007 (“the Circular”) and successfully completed a 4-year third level degree programme and qualified as a staff nurse in September 2012. The Complainant’s educational fees were paid in full by the Respondent. The Complainant received his full salary and all increments which accrued during his 4-year course. He also received premium pay in respect of all premium hours worked by him during this period.
The issue raised by the Complainant in these proceedings is that he was not rostered to work Saturdays and Sundays during the academic term while undertaking his studies although he was available and willing to work those days. As a consequence, he believes he was denied an ‘entitlement’ i.e. the opportunity to earn additional premium payments.
The matter was referred to a Rights Commissioner for investigation. A recommendation issued on 14th January, 2015.
The Rights Commissioner rejected the complaint. On 12 February, 2015, the worker appealed the Rights Commissioner's Recommendation in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court Hearing took place on 18 November, 2015.
Relevant Provisions of the Circular
Paragraph 15 of the Circular provides in the following terms for the remuneration of an employee sponsored under the scheme detailed in the Circular:
“A public health service employee who is sponsored in accordance with the terms of this circular will remain on the payroll of her/his public health service employer. S/he will retain her/his existing substantive salary throughout the four years of the nursing/midwifery degree programme, and will continue to be entitled to normal incremental progression up to the maximum of that scale, up until full registration with An Bord Altranais and the taking up of duty as a staff nurse. Sponsored employees will not receive any extra remuneration or allowances during the period of training other than premium payments where appropriate.
During the interim period between programme completion and full An Bord Altranais registration, participants will have an employment commitment on the terms and conditions of their substantive post.”
It is also necessary to consider the provisions of paragraph 18 of the Circular:
“Sponsored employees will be required to work during all periods outside of academic semesters, except when they are on annual leave or undertaking supernumerary clinical placements as part of the nursing/midwifery degree programme.”
- 3. 1. The Complainant submits that he was rostered to work a total of 49 Sundays only over the duration of his 4-year degree programme. Prior to the commencement of his degree course, the Complainant was normally rostered to work Saturdays and every second Sunday. He asserts that the Respondent should have continued to roster him on this basis throughout the entire period of his 4-year degree programme including during the academic term. He submits that the Respondent’s failure to do so has resulted in a shortfall in his earnings over the relevant period of approximately €15,000.00.
2. The Complainant further submits that two colleagues who were also sponsored by the Respondent to undertake the degree programme were rostered for premium work on a number of days (during their academic course) which was far in excess of the number of days for which the Complainant had been rostered. The Complainant was not in a position to identify these putative “comparators”. This aspect of his complaint was not therefore pursued before the Court.
4. 1. The Respondent submits that, in the Complainant’s case, it has complied in full with the provisions of the Circular and in particular with paragraphs 15 and 18 thereof. If the Complainant had been rostered for duty on Saturdays and Sundays during the academic year, he would have had to be rostered off duty on two days between Monday and Friday of the following week – days on which he was expected to be attending college and pursuing his studies. In the alternative he would have had to have been paid overtime as he would have been rostered in excess of 39 hours per week.
- 2. The period during which the Complainant was undertaking his studies – September 2008 to September 2012 – coincided with a period of significant budgetary constraints and cutbacks in the HSE. The moratorium on public sector recruitment was in effect also. The services provided by the Respondent in the relevant HSE area had to be reconfigured to ensure safe delivery of services within available resources. Certain services were reduced and others were cancelled altogether. These cutbacks had an impact on the availability of premium hours available to all staff.
The Court finds that the Complainant received his full remuneration for the duration of his academic course in accordance with paragraph 15 of the Circular and that he had no entitlement to be rostered for premium hours during the academic term.
Therefore, having considered in detail the parties’ written and oral submissions, the Court finds that the Claimant’s appeal is not well-founded and that the Rights Commissioner’s Recommendation is upheld in full.
The Court so decides.
Signed on behalf of the Labour Court
9 December 2015______________________
Enquiries concerning this Decision should be addressed to Helen Tobin, Court Secretary.