ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00021005
A Hospital Consultant
Lena Savage, Irish Medical Organisation
Sophie Crosbie, IBEC
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: 11/09/2019
Workplace Relations Commission Adjudication Officer: Patsy Doyle
In accordance with Section 13 of the Industrial Relations Acts 1969, following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
This claim was lodged by the Union on behalf of a Hospital Consultant who had not received the Head of Department Salary following his appointment in December 2017. The claim is for pay and retrospection to date of appointment.
The Hospital had rejected the claim in its entirety.
Both parties were represented. The Claimant by his Union, Ms Lena Savage at IMO and the Employer by Ms Sophie Crosbie at IBEC.
Both parties filed helpful submissions. At the Adjudicators request, the Employer undertook to liaise with the parent employer to seek to scope out any potential for a resolution of the Dispute. The feedback indicated that there was no scope available to the employer.
I have, therefore moved to Recommendation in the dispute and will now share this with the parties.
Summary of Claimant’s Case:
The Claimant is a Hospital Consultant and has worked at his present employment since October 2015.
The Union gave an outline of the Head of Department Salary point which was introduced in 2015. It is 3-point scale ranging from €182,321 to €193,270 on 2018 Salary Scales.
The Claimants case is that he was elected Head of his Department, on a 3-year tenure, by his Consultant Colleagues on 8 December 2017 and commenced in a much broader role in January 2018. He requested payment of the variance in salary for the role and this was denied to him on the basis that approval was awaited from the parent Authority.
The Union listed the aspects of the claimant’s current role which differed from his entry position in October 2015. They accompanied this listing with a submission on the high level of dissatisfaction experienced by the claimant at being denied the assimilation in pay to that of the Head of Department. The position of Head of Department had been inserted into the National Salary Scales and remained incorporated in that national scale.
The Union referred to a named precedent based at a Dublin Hospital and contended that there was no justification for withholding the payment of this allowance to the claimant.
In providing a chronology to the attempts made to resolve the dispute much earlier, the Union drew on letters dated 13 July, 2018,15 November ,2018 and various email follow ups. They referred to the Hospital stated position as one seeking “updates in respect to payments in respect of this position “and information that “entry on the salary scale has not been implemented pending further engagement “
On October 2, 2018, the Union sought a clarification from National Human Resources at the parent Authority and displayed a replying email, which first asked what location the position was in? and Secondly, “I understand the approved rate should apply “This communique failed to break the impasse between the parties.
On 15 February 2019, the Employer wrote to the Union stating that “criteria are currently being drawn up around the implementation of this allowance and that we are to await further correspondence from them regarding same. Approval and funding for the allowance were not forthcoming and further instructions were awaited.
The Union responded to the Employer post hearing submission:
1 The Employer held the Claimant out as a Head of Department without informing him of the pre-requisite approval from the Department of Health or others. The parent Authority had already endorsed his claim.
2 The Head of Department scale is already listed in the Consolidated salary scales and fell to the parent authority to accompany this with criteria.
3 The Union denied that the claim was a collective claim and deferred to the Employers contention that movement required individual sanction.
Summary of Employers’ Case:
The Hospital is a Section 38 Hospital bound by Public Service Agreements and subject to cost control frameworks therein. The Employer rejected the claim.
The Employer accepted that the claimant had been appointed post public competition to the position of Consultant Type B in October ,2015.
The Employer submitted that the claimant had notified the Hospital that he had been nominated to the position of Head of Department by his Peers on 7 January 2018 and promptly sought application of the salary scale.
The Employers position is that it has not been funded for a Head of Department position. Even if funding had been secured, all posts would have to be advertised and follow a recruitment process.
The Employer contended this was a legacy issue from a 2015 WRC document on a new career structure for Consultants pay produced at hearing and referred specifically to Page 8
“The Roles of Heads of Departments, their appointment criteria and periods in office, participation in research, delivery of medical education and training and the Group Manager (Clinical Director) posts will require further engagement between the parties to conclude no later than 1 February 2015. Should agreement not be reached at that point, the matter will be referred to the Commission”
The Employer reflected on the exchange of correspondence between the parties to the case. They submitted that the Union had confirmed that a collective Agreement had not followed the above extract and this position was endorsed by the parent Authority. The Employer kept the matter live and continued to seek guidance on how best to proceed as the Hospital was not sanctioned to pay the rate sought.
On 13 July 2018, the parent Authority wrote to the employer referring to a plan to await the outcome of the Consultant Court Case before progressing that engagement. The Head of Department rate was not sanctioned at that time or since.
The Employers representative submitted that following a comparative analysis, no other Voluntary Hospital had been authorised to pay the Head of Department salary scale. In referring to Circular 13/2015, the Employer referred to the penultimate paragraph on related issues
1 Separate Communication was to follow on resolved issues
2 In the interim period pending Agreement with the IMO on Section B above, the Head of Department rate may be applied to those Consultants appointed to “Associate Clinical Director “or commensurate roles, it is envisaged that such roles will be regularised as part of any agreement with the IMO “
The Employer contended that many of the duties cited by the claimant were incorporated in his live Consultant Contract.
The Employer argued that the criteria for the grade of pay had not been established and agreed between the IMO and the parent Authority. They contended that the claim was barred as a collective issue under Section 13 of the Act.
The Employer took some time post hearing to liaise with the parent Authority to scope out any potential to resolve the dispute. They were unsuccessful in that regard.
Feedback from the Parent Authority indicated:
1 Payment of Head of Department scale must be approved by the Parent Authority on an individual basis.
2.No National Criteria
3 The named comparator provided a pan hospital function and covered several Hospitals and the rate was approved by the Department of Health and not comparable.
The Employer concluded by re-affirming the submission that the claim was statute barred under Section 13(2) of the Act in relation to a body of workers.
Findings and Conclusions:
I have given a lot of thought to the submissions made by both parties at hearing and in the immediate aftermath. I had hoped that the parties may have been able to engage with the parent Authority to scope out a local resolution to this long-standing grievance. This did not prove viable. I am grateful to the Employer for exploring that option, at any rate. I will now press on to a Recommendation in the case.
It is important for me to take a moment to reflect on the parameters of Section 13 of the Act, on which my jurisdiction lies.
Rights commissioners/ Adjudicators.
(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.
(3) (a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—
(I) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and
(ii) notify the Court of the recommendation.
(b) A rights commissioner shall not investigate a trade dispute—
(I) if the Court has made a recommendation in relation to the dispute, or
(ii) if a party to the dispute notifies the commissioner in writing that he objects to the dispute being investigated by a rights commissioner.
I find this claim to be a unitary claim. It evolved from an email submitted to Hospital Management in early January 2018 and had not altered course in that regard since that date. It is not a claim for a body of workers. I find against the Employer on that Preliminary Argument. It is of note that this Preliminary Argument was a latter-day argument as the Employer had not accepted the invitation to object to the claim when requested by the WRC on receipt of the claim.
I have sought to review this case from the very beginning and I was struck by the initial contact from the Employers Hospital and the Human Resources Department of the Parent Authority. The Hospital in this case is an Associate employer to this Authority. The Claimants transition to Head of Department as described by the Union was prestigious and immediately advantageous to the Hospital. They saw the floor plan already carved out in the consolidated salary scales and understood that a transition would be effortless. I accept that there is a minor sub plot in the case that the claimant had been employed on a New Entrant Salary Scale and was eager to make up for this shortfall in Consultants pay.
However, I accept that the main driver for the claimant in advancing his claim to the WRC was to stabilise his pay owed to him since January 2018. He presented a very forthright argument in that vein at hearing. He described that the extended time frame associated with resolution had not sat well with him when balanced against the extra work he had done.
The Employer on the other hand appeared reticent in the face of this development and introduced the initial enquiries to the Parent Authority as a random action on behalf of a group of Consultants who were not canvassed to this end by the Hospital. To me, at least, this focus differed sharply from the claimants view that the role had been endorsed by the Medical/ Surgical Fathers of the Hospital and was both career and Hospital enhancing.
Both parties accept that the Head of Department Pay Scale was a defined hallmark of the Consultant Pay Scale outlined in the national consolidated scales. This, for me created a legitimacy to the argument on core pay, despite the lack of a visible and universally understood rite of passage to the three-year role. I noted that this was clearly demarcated in protocol in the case of a Clinical Director.
The main issue for the Employer in this case is that they had not been given the green light to pay the claimant and they feared consequences for creating a precedent and working outside the limitations set by the parent authority. While I understand the economics associated with that position, the position does not stand up when the variation in both roles at the centre of this case is actively considered.
It was very clear to me that the Claimant changed his role at the behest of the Medical / Surgical Fathers of the Hospital. Two years have now passed for the claimant, he has another year to serve on that mandate.
This endorsement was worthy of Board approval and I could not establish any collective endorsement or curtailment by the Governing body of the Hospital. Instead, I find that I must accept the Union argument that the Claimant has taken on the persona of the Head of Department without censure during this period. I can see how the Union understands that this is permitted under Circular 13/2015. I noted that the Employers main argument was not in impeding the Claimants clinical progress as they pointed to very respectful interpersonal relations between the parties, but rather in securing the funding necessary to ground the assimilation. In that they have drawn a blank.
I gave some consideration to the National Human Resources pronouncement on the post which suggested at face value at least that the post should have been individually reviewed in terms of rate. I don’t think it was fair, equitable or reasonable that the claimants claim has been allowed to drift at the parent authority level pending discussions around a Consultants Court Case or an Independent review not clearly linked to this claim.
This caused me to focus on the exchanges between the parent authority and the employer in the immediate aftermath of the hearing. The parent authority confirmed that at least 5 Heads of Department had evolved nationally through “a business case to the parent authority/funder of same, on an exceptional basis “
While I fully recognise the objectives of the Employer and its funder to follow national Instructions, it should not result in a detriment to the claimant. The Claimant, nor the Hospital on his behalf in this case was not invited to make a business case.
Given that there are at least 5 agreed appointments at Head of Department level already in the Country and the Complainant has served consecutively with these positions, albeit in the dark about their co -existence outside of the named precedent, I believe that an Industrial Relations anomaly has arisen in his case.
I did not have the benefit of the completed comparative analysis referred to by the Employer.
I have identified a distinct distance between the employer and the parent authority on this issue. While the employer was instructed to refrain from conceding the claim, 5 Heads of Department appear to have emerged in the country without an apparent consideration of the complainant. During the same period, the rate for the position was viewed as Head of Department by the parent authority. I cannot accept that he should be paid a rate of pay below the agreed and established rate for Heads of Department given the collective mandate which grounded his accession to the position.
I have listened carefully to the parties and have been struck by the clear commitment to the advanced role expressed by the claimant at hearing. This job seems to have a Consular function to complement the clinical components. The Employer did not wish to undermine this work just to secure approval and funding. They had been unable to unravel the refusals in that regard and were not the leaders in any of the national discussions. They clearly relied on the parent authority to guide the process.
I find that the claimant has worked as a Head of Department since January 2018. I have stated my misgivings about the visible lack of cohesion between the Medical and Administrative Teams at the Hospital. I have also stated my misgivings around the distance between the employer and parent authority to anchor an earlier and equitable resolution.
None the less, the claimant cannot be blamed for these disconnections and he has recorded two years of enhanced service in his clinical position without pay. He should receive the established rate for the Head of Department role and both parties should work together to outline a universal understanding of the generic rite of passage to the position and a commensurate job description to prevent a reoccurrence of this anomaly.
I have found considerable merit in the dispute.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I have found considerable merit in this Dispute. I have found that the claimant acted to his detriment in taking on a Head of Department role without pay while 5 Heads of Department evolved concurrently within the realm of the parent Authority of which the employer is an Associate Employer.
He ought to be paid for the work he has done and intends to continue for one more year of his tenure. I have found that he was unfairly omitted from any tangible process for active consideration of his claim.
I have drawn on the precedential value of LCR 20435 where the then Deputy Chairman of the Labour Court outlined that a correct assimilation of salary for work performed did not breach the Croke Park Agreement.
I recommend that the Employer provides the full funding arrangement to the claimant for the three-year tenure of Head of Department 2018-2020 with immediate effect. This funding should be secured from the same funding stream which funded the other Heads of Department positions in the greater Health Service.
This should be accompanied by an agreed job description. The parties should then engage on the plan for the position post the year 2020.
Dated: 5th December 2019
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Payment of Salary at Head of Department.