ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00003734
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: 24/11/2016
Workplace Relations Commission Adjudication Officer: Ian Barrett
Location of Hearing: Room G.06 Lansdowne House
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 13 of the Industrial Relations Acts 1969 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
The Complainant is employed by a health service provider in a hospital/community nursing unit based in Dublin. Since March 2015 he has been employed as a Porter, having previously been employed as a Health Care Assistant.
In 2012, following the closure of a male only ward and a subsequent LRC conciliation process, it was agreed that the Complainant, a Health Care Assistant, would provide care for male patients only and he was assigned to work on a one to one basis with a specific patient. The agreement also stated that the service needs and disability standards of the hospital would have to be prioritised in the future. The Complainant was rostered on a 28-day shift pattern including regular access to weekend working, including Sunday working which was paid at a premium of double time for every hour worked.
In correspondence dated the 4th July 2014, the Director of Nursing wrote to the Complainant informing him that his role assisting a specific resident would cease. Referring to a commitment made at a meeting a few weeks previously concerning redeployment, the hospital offered the Complainant two options; the role of Porter or that of Health Care Assistant on another unit within the campus. If he opted for the Health Care Assistant role, it was made clear in this letter that the Complainant was expected to carry out the role in its entirety.
The Complainant replied on the 25th July 2014, stating that he would be willing to consider alternative proposals to his one on one role provided they protected his earnings potential and honoured the terms of the red circle agreement. He outlined various roles that might be suitable, including night security, day porter or other options with the health service provider. He noted that the two options in the Hospital’s letter of the 4th July were unsuitable to him, as neither met his conditions (his red circle arrangement concerning attending male only patients and the protection of his allowances). He also made clear that he viewed the offer as an unfair attempt to break the terms of the LRC agreement and prior commitments given to him by hospital management.
The Hospital Manager (Acting) responded the following day stating that the hospital would continue to honour the male only component of the Complainant’s working arrangements until it became unworkable operationally. This letter referred to other roles that were unsuitable for various reasons, including in security. It also advised the Complainant that if he was appointed as a Porter, he could not rely on his service with the health service provider as qualifying for service within the porter group hierarchy.
On the 2nd of September 2014, the Complainant wrote to the Hospital Manager formally declining the offer and suggesting that a mediator be appointed to find a solution and that the planned date whereby his current role would be outsourced be deferred.
The Hospital Manager replied on the 4th September stating that the hospital would not agree to a mediation process or to a deferral of the change planned for the 15th September. He confirmed that management would honour the red circle arrangement concerning working with male patients only, while it was feasible to do so.
The Complainant replied on the 11th September 2014 stating that he would continue in a Health Care Assistant role under protest, as he believed his current role was being outsourced. He set out four conditions for his new role, including that he be rostered to work every second Sunday (as had been the case previously).
Summary of Complainant’s Case:
The Complainant stated that in September 2014 his position as a Health Care Assistant attending the needs of a specific patient on a one on one basis was outsourced. To maintain a red circle arrangement whereby he worked with male patients only, he agreed to move to a different ward within the hospital.
In January 2015, the Complainant’s Union representative contacted hospital management claiming that the complainant was being left off weekend rosters and that the issue needed to be addressed as a matter of urgency as the premium pay for weekend working made up a significant portion of his earnings.
The Complainant also stated that having moved to a different unit the opportunities to care for male patients only was being restricted causing him concern, including his belief that colleagues considered him to be uncooperative. Also, based on HIQA regulations, he believed that the ward might not meet the required building standards and may have to close. For these reasons, he sought redeployment and enquired from management of opportunities available to him, both within the hospital facility and elsewhere with the health service provider.
The Complainant’s preference was to remain within the hospital where he has been employed since 1991 and after discussions that took place over a period of six months he agreed, in March 2015, to join the Porter Department. Employed as a Relief Porter he does not have access to weekend working and the premium pay that goes with it (as only Shift Porters have access to weekend shifts).
The Complainant states that it was a difficult decision to transfer from the Health Care Assistant role he performed for many years, but he believed he had no alternative due to the concerns expressed above. He contends that he has a legitimate claim for compensation for loss of earnings under the provisions of the Public Service Agreement, following changes to his work arrangements enforced by Hospital management following the outsourcing of his one to one arrangement in September 2014, and that compensation should be calculated in line with the terms of Labour Court Recommendation 19995.
As the health service provider and hospital management would not concede that he was entitled to compensation, he was exercising his rights to refer the matter to the WRC.
Summary of Respondent’s Case:
On the 16th September 2014, following discussions and the exchange of correspondence between the parties, the Complainant’s one on one work arrangement with a specific patient ceased due to the clinical needs of that patient.
On the 3rd October 2014, the Hospital Manager responded to the Complainant’s letter of the 11th September (setting out his conditions for transferring to another ward) stating that set rosters ceased several years previously and staff members cannot be guaranteed work every second Sunday. This correspondence also acknowledged that the male only component of the Complainant’s work arrangements would be honoured until it became unworkable, at which point it would have to be reviewed. The Complainant, who had been on sick leave from the 16th September 2014, returned to work on 10th November 2014 and took up his Health Care Assistant role in another ward.
Emails and letters pertaining to the Complainant’s situation were exchanged over the following months, and a meeting took place on the 18th February 2015, during which the Respondent states that the Complainant requested that he be redeployed from the role of Health Care Assistant to that of Porter within the facility.
In a letter from the Hospital Manager to the Complainant dated the 19th February it was agreed that he would take up a Porter role on the 16th March 2015. This letter also set out the terms of the redeployment, including the Complainant’s agreement to forego seniority based on service for the purposes of shift allocation. Therefore, he would be a Relief Porter rather than a Shift Porter, working a Monday to Friday roster (so that he would not avail of premium payments for weekend working). It was noted that the redeployment was for a trial period of six months, to be reviewed in September 2015.
The Respondent contends that the facts are that they did not seek to redeploy the Complainant, there was no pressure applied to him to give up his Health Care Assistant role and he was free to continue working in that role if he wished. They believe that it was the Complainant’s choice to move to another role, a request that was facilitated by his employer and management had informed the Complainant that his new role would result in a reduction in his take home pay. Accordingly, the Respondent asserts that the Complainant is not entitled to any compensation under the Public Service Agreement as he requested the change in his role, rather than it being forced upon him by hospital management.
Findings and Conclusions:
Detailed submissions from both parties were provided to the Adjudication Officer on the day of the hearing only.
They include the following documents:
The facts on their own show that the Complainant sought and accepted a new position of Porter within the hospital, the change was not forced upon him, he understood the terms and conditions associated with it and he could have continued in his previous Health Care Assistant role if he wished. However, while Management state in their submission that they were happy to facilitate the move, it is evident that prior to and following the move that the Complainant was not.
It might be argued that the Complainant should not have agreed to take up a new role while there were issues, especially relating to actual loss of earnings, outstanding.
However, the Complainant’s submission shows that he was consistent and clear in his demands to be compensated for loss of earnings over a period of two years. He had asked for the dispute to be the subject of mediation, a request turned down by management. Management had suggested that the Complainant refer his claim to the Regional HR Manager, which apparently did not happen. Also, the arrangement that commenced in March 2015 was to be for a six-month trial period and to my knowledge, the parties did not meet to discuss the situation when it finished, and the issues remained unresolved.
The Complainant’s grievance did not only emerge after he took up the Porter role (and his earnings diminished).
Management was fully aware that it was facilitating the redeployment while issues of serious concern (to the Complainant) were unresolved and that they would likely remain the subject of an ongoing employee grievance. “Nothing is agreed until everything is agreed”, did not apply in this case.
My recommendation is to refer this dispute back to the health service provider for resolution. It should be subject to an immediate mediation process, organised by management, which may involve Regional HR Management or others, subject to the agreement of both parties. If agreement is not reached, the Complainant may consider the other options available to him, such as referral of the dispute to the Labour Court under Section 20(1) of the Industrial Relations Act, 1969.
Dated: 29 June 2017
Workplace Relations Commission Adjudication Officer: Ian Barrett