ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00028892
An Emergency Medicine Senior House Officer (SHO)
Ryan Mc Cormack, Irish Medical Organisation
Hospital Group HR
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: 03/12/2020
Workplace Relations Commission Adjudication Officer: Orla Jones
In accordance with Section 13 of the Industrial Relations Acts 1969following 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 concerns the treatment of a worker in relation to her employment as a Non-Consultant Hospital Doctor (NCHD), in the Emergency Department of a named hospital and the failure to pay her a shift premium of time + 1/6th for all hours worked.
Summary of Complainant’s Case:
The worker was a Senior House Officer (SHO), training in the speciality of general practice. She commenced employment in a named Hospital on the 8th July 2019 for 6 months in the Emergency Department on the second year of her training scheme.
NCHDs who work in Emergency Departments who take part in a continuous rotating shift which requires delivery of the core 39 hours over a 24 hour, 7-day week cycle are awarded a shift premium of time + 1/6th for all hours worked. This provision is set out in section 10 b) of the National NCHD contract, agreed between the HSE and the IMO (submitted).
In July 2019 the worker became aware of a potential issue regarding her renumeration when a colleague advised her that SHOs do not receive an ED premium, due to participation in a continuous rotating shift which requires delivery of the core 39 hours over 22 hours rather than 24 hours. The 2-hour gap being between 6-8am.
Subsequently, the worker raised a grievance with the Medical Human Resources Department by email on the 27th & 31st July 2019, to enquire if the information provided by her colleague was factual and if so, for it to be rectified. She received no response. Following this the worker and her representative raised the issue with the employer on a number of occasions but received no response.
The IMO reject the hospitals stated position that SHOs are not eligible for Emergency Department premium because they are not scheduled to work from the hours of 6 to 8am, and therefore are only working a 22-hour, 7-day week cycle. The named Hospital have attempted to exploit a provision in the NCHD contract by leaving a 2-hour rostered gap for their Emergency Department SHOs. They have breached the National NCHD contract by refusing to pay the worker the ED Premium due from the months of July 2019 until January 2020.
It is submitted that the complainant can determine from the ED Department rotas from July 2019 – January 2020 that the worker worked continuous rotating shifts and participated in an overall NCHD ED roster which encompasses the 24-hour, 7-day week cycle provision. Evident from the workers timesheets that were submitted and paid, on several occasions she worked until 6:30am and on one occasion until 7:30am. This leaves a 30-minute gap which the hospital justifies as reason for the non-payment of ED premium to the worker.
The worker is seeking an award to reflect the loss of earnings she has suffered as a result of denied ED premium.
Summary of Respondent’s Case:
All NCHD’s employed in the Irish Public Health system work under a Contract of Employment for Non-Consultant Hospital Doctors, a nationally agreed contract between the Health Service Executive and the Irish Medical Organisation (submitted).
The worker was employed as a Senior House Office in the Emergency Medicine Department at the named hospital from 8th July 2019 to 12th January 2020. Senior House Officers in the Emergency Medicine Department during the period July 2019 to January 2020 were rostered on a varied shift across either an 18-hour period or 22-hour period.
In addition, the worker states that the employer has refused to engage on the issue of payment of shift premium allowance to her and that her grievance was not fairly examined or processed. A letter from Mr M, IMO acknowledges previous correspondence with Ms G, the employers HR Manager and her undertaking to investigate the matter.
A Response from Ms G employer HR to the IMO letter of 18th September issued via email and post to Mr M on 27th September 2019 confirming non-eligibility of the worker to payment of Time + 1/6 shift premium allowance owing to non-participation in continuous rotating shift requiring delivery of core 39 hours over a 24 hour, 7-day week cycle as stipulated in Section 10 (b) NCHD Contract 2010.
The employer engaged in further email correspondence with the IMO during September and October 2019 and a meeting between the parties took place on 15th of October 2019 all of which demonstrates the employers engagement on this issue with the workers Trade Union representative. Notes from meeting between Mr M, IMO and hospital HR on 15th October confirm discussion on the issue of payment shift premium allowance to ED SHO’s.
While it is accepted by the employer that both Senior House Officers and Registrars are classified as NCHD’s there is a clear distinction made between both across all and each speciality in their respective roles, responsibilities, and rosters.
The worker was employed as one of six Senior House Officers in the Emergency Department of the named hospital. SHO’s in the Department were rostered over varying length of day (either 18 hours or 22 hours maximum depending on the day of the week) but never rostered to cover a full 24-hour period. While patient care may have required SHO’s to work beyond their normal shift finishing time this would be classified as unrostered rather that rostered hours which they would have received full payment for in line with the terms of NCHD contract.
With the number of SHO’s (6 in total) employed it was not feasible, at that time to operate a 24/7 rota owing to compensatory rest period entitlements. During this same period there were a total of 8 Registrars employed in the Emergency Department of the hospital who were participating in a roster with a continuous shift pattern delivering their core 39 hours over a 24 hour 7-day week cycle. This pattern, as per Contract of Employment for Non-Consultant Hospital Doctors, entitled the Registrars to the payment of Time + 1/6 shift premium for the period of their employment.
Prior to the employment of 8 Registrars in January 2018 they did not work such a pattern and did not receive the shift premium. The Department currently has 8 SHO’s employed and have now implemented a 24-hour roster pattern with the SHO’s now having the entitlement to the Time + 1/6 Shift Premium.
Th employer is bound by the nationally agreed Contract of Employment for Non-Consultant Hospital Doctors in relation to all aspects of NCHD employment including aspects relating to salary, overtime, and premium payments. Payment of the Time +1/6 Shift Premium is reliant to Emergency Medicine Department NCHD's participation in a continuous rotating shift which requires delivery of the core 39 hours over a 24 hour, 7-day week cycle. The employer does not have authorisation to pay shift premium outside of the terms of this nationally approved contract.
The employer cannot accede to payment of the shift premium to the worker who was employed as a Senior House Officer in the Emergency Department during the period July 2019 to January 2020 as during this period the worker was not participating in a continuous rotating shift which required delivery of the core 39 hours over a 24 hour, 7-day week cycle as set out in section 10 b) of her signed contract.
Findings and Conclusions:
The core issue in dispute between the parties relates to the question as to whether or not the Worker was entitled to receive a premium payment of Time +1/6 for working in the Emergency Department. Both parties agree that NCHDs who work in Emergency Departments who take part in a continuous rotating shift which requires delivery of the core 39 hours over a 24 hour, 7-day week cycle are awarded a shift premium of time + 1/6th for all hours worked. This provision is set out in section 10 b) of the National NCHD contract, agreed between the HSE and IMO (submitted).
Both parties agree that the worker worked in the respondents Emergency Department and that she held an NCHD contract. The worker submits that her NCHD contract provides her with an entitlement to a premium payment.
The employers position is that Payment of the Time +1/6 Shift Premium is related to the Emergency Department NCHD's participation in a continuous rotating shift which requires delivery of the core 39 hours over a 24 hour, 7-day week cycle. The employer states that at the time of her employment the complainant who was a Senior House Officer was not participating in a continuous rotating shift which required delivery of the core 39 hours over a 24 hour, 7-day but that she and the 5 other SHO’s were rostered on a varied shift across either an 18 hour period or 22 hour period but never across a 24 hour period as there were only 6 SHO’s employed at that time and thus it was not feasible, at that time to operate a 24/7 rota owing to compensatory rest period entitlements.
It was also confirmed at the hearing that the employer had in fact replied to the workers initial query in respect of the premium shift allowance advising that she was not entitled to same as she did not work a 24-hour cycle. It also emerged that further correspondence took place between the IMO and the employer in relation to this matter and that a meeting took place in October 2019 between the employer and Mr. M of the IMO to discuss the fact that SHO’s at the time were not in receipt of the shift premium.
The worker disagrees with the employers justification for the denied payment of ED premium which is due to only 6 SHO’s being employed but she does not dispute that here were only 6 SHO’s employed at that time. The worker states that the employer is attempting to separate the SHO and Registrar rota and asserts that the purpose of this is to deny SHOs Emergency Department premium.
The worker argues that Emergency Department Registrars are receiving this premium payment and in circumstances where the SHOs such as the worker are participating in the same NCHD rota she is entitled to this premium also.
The employer advised the hearing that the Registrars rota at that time was made up of 8 Registrars and so they were able to work a cycle comprising of a continuous rotating shift with delivery of the core 39 hours over a 24 hour, 7-day.
The employer also added that it has since then increased its number of SHO’s to 8 and so the SHO’s now participate in a continuous rotating shift with delivery of the core 39 hours over a 24 hour, 7-day week cycle, for which they are entitled to payment of the Time +1/6 Shift Premium. This was not possible during the workers employment as only 6 SHO’s were employed.
The employer advised the hearing that it would not even have been possible for them to process a payment for the premium rate in the present case where the rota did not reflect that such premium was properly payable. The employer stated that they are bound by a Nationally agreed contract which links the entitlement to Time +1/6 Premium to a 24-hour rota. The employer added that even if they had tried to apply the premium int this case it would not get through payroll as the rota worked by the worker does not attract a premium as she was not participating in a 24-hour rota.
Having given careful consideration to the submissions of both parties, I accept the Employer’s position that the worker was not entitled to payment of the Time +1/6 Shift Premium, for the reasons outlined by the employer.
Accordingly, I do not recommend in favour of the worker in respect of this matter.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute
Having given the issues a great deal of consideration, I do not recommend in favour of the worker in respect of this matter.
Dated: 22nd February 2021
Workplace Relations Commission Adjudication Officer: Orla Jones
Shift Premium, Industrial Relations Act, 1969, Section 13, Emergency Department, 24-hour rota.