ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00007141
Clinical Nurse Manager
A Private Hospital
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 23/06/2017
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Location of Hearing: Room G.04 Lansdowne House
Following the referral by an employee of an acknowledged trade dispute under Section 13 of the Industrial Relations Act of 1969, made to the Director General of the Workplace Relations Commission and in circumstances where the Director General has in turn referred this matter to me, an Adjudication Officer so appointed pursuant to Section 40 of the Workplace Relations Act of 2015, I can confirm that I can confirm that I have fulfilled my obligation to make all relevant inquiries into the dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing and/or made available in advance of the hearing
The Complainant herein has brought a complaint (by way of a Workplace Relations Complaint Form dated the 12th of February, 2017) pursuant to her legal entitlements under the Industrial Relations Act of 1969. I can confirm that I am satisfied that the Complainant is a worker as defined under the Industrial Relation Acts.
Neither party provided evidence in respect of whether internal mechanisms were availed of and/or exhausted.
The Complainant has worked with the Respondent Employer since in and around 2005. She believes she has sustained a significant remunerative loss arising out of shift changes which were implemented in the workplace in 2013 and which were imposed in response to a changing economic climate and the demands made by third party health insurance providers.
Summary of Complainant’s Case:
The Complainant is a Clinical Nurse manager. The Complainant gave evidence that for medical reasons she was only in a position to work a certain number of hours each week and whilst the medical reasons remained undisclosed this was not challenged. The Complainant says that her Employer facilitated the fact that the Complainant was only able to work reduced hours by allowing the Complainant work the more financially rewarding Sunday shift. By 2013 the Complainant was working 21 hours a month on Sunday shift which attracts in and around Double pay i.e. €48.00 per hours as against €24.00 per hour.
The Complainant recognised that there was a shift in policy in the workplace which was primarily brought about by Health Insurance companies looking for greater efficiencies in the way in which the Hospital was being run. In particular, the practise of admitting patients into Hospitals on a Sunday by way of preparation for Monday morning procedures was no longer being paid for by the Insurance companies. This brought about the loss of a financially positive practise but also meant that there was a 75% reduction in staffing needs on a Sunday and nowhere more so than in Admissions (wherein the Complainant worked).
In fact, in time the Complainant’s Sunday hours were reduced to 16 per month with a loss of nine hours at the Premium rate. The Complainant made up the nine hours else where at the normal rate meaning the Complainant was at a loss of about nine hours per month – i.e. The difference between flat rate and double time.
The Complainant says that she was aware of this loss from the start and raised it with her line managers though got no satisfaction there. The Complainant did not appear to raise it with HR and did not, as far as I am aware raise a Grievance.
The Complainant’s SIPTU representative concedes that the issue was not formally articulated for some two years after it was implemented and argued that it would not, in any event, be appropriate to raise it before the expiration of one year post implementation and that there is no formal time limit in any event for the raising of these types of dispute.
The same representative makes the case that under the Haddington Road Agreement (a form of which is applicable to this workplace by agreement between staff and management) and other collective agreements, the Complainant is entitled to be compensated for any financial Loss which has accrued to her by reason of the changes implemented.
Summary of Respondent’s Case:
The Respondent outlined the difficulty it faced in trying to redeploy people in response to the changing circumstances being dictated by third party insurance companies. There just simply were not the same number of premium hours available across the workforce and everyone had to take some sort of reduction. The difficulty with the Complainant’s position was that she could not make up the difference in other ways as she was precluded from increasing the number of hours she could make herself available for on health grounds. The Respondent indicated that there was plenty of work and hours to be worked but usually at a flat rate or the normal overtime rate of time and a quarter.
The Respondent has countered the argument made concerning the Haddington Road agreement by pointing out that Haddington Road specifically acknowledges that management is entitled to reduce staff rostering on Sundays
The Respondent asked me to consider the delay in bringing this matter to the Employer’s attention. The Respondent has urged me to consider the delay as being contrary to the obligations set down in the Industrial Relations realm to be “fair and reasonable”. I accept that the inordinate delay is relevant insofar as the Employer is at a disadvantage in terms of investigating the issue some 24 months later as against having the difficulty pointed out within three months or so (and I accept that there is no need to wait a year before raising an issue such as this). However, I do not see that even had this matter been brought to the Employer’s attention at an earlier time, that the Employer would have been able to respond in a way which would have given greater comfort to the Complainant. Simply put, the requirements of the workplace had changed and there was no longer a demand for Premium Hours and the Employer could not make them up in an arbitrary way.
At best the Respondent had offered other shifts to make up the hours but this had to be rejected as the Complainant (on medical grounds) was not in a position to work hours over and above the number she had always worked,
Findings and Conclusions:
I have carefully considered the evidence adduced in the course of this hearing. I listened to the Complainant herself, the HR manager and the line Manager. I have also listened to the able representation of the parties and have considered the booklets of submissions handed in to me on the date of the hearing.
There can be no doubt that the Complainant has incurred financial loss arising out of the need to reduce Sunday hours of work. Whilst the Complainant has made up the actual hours at other times she remains at a loss as these alternative hours are at a flat rate. The Complainant had no complaint regarding how she had been treated vis-s-vis her colleagues, there was no suggestion that she had been overlooked or treated unfairly. In fact the Complainant accepts that there are no other premium hours available to her, nor to anyone in the workplace. It is accepted that the fact of the reduced hours available on Sunday is out of the Employer’s hands.
The Complainant through her representation is looking to be compensated for this loss. I have been told that the Complainant has done nothing to mitigate her losses and have been advised that the Complainant cannot work more hours than she currently is, to achieve this mitigation.
On balance I am minded to award the Complainant a sum of money by way of compensation. However, I would see this as a one off payment and do not believe that there is calculable ongoing loss in circumstances where the Complainant (on advice) will not take on more hours and Employer cannot create Premium Hours. I award the Complainant the sum of €2,500.00 compensation.
In accordance with Section 13 of the Industrial Relations Acts, 1969 I make a recommendation that the Complainant be paid a once off ex gratia payment of €2,500.00 within 35 days of the date of this decision issuing.
Dated: 20 July 2017
Workplace Relations Commission Adjudication Officer: Penelope McGrath