Complainant

Respondent

Parties

Thomas  Gostkowsi

National Maternity Hospital

Representatives

Jamie Murphy Independent Workers' Union

Mark Comerford IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 9 of the Industrial Relations (Miscellaneous Provisions) Act 2004

CA-00064033-001

11/06/2024

The complainant is employed by the respondent as a Hospital Porter; employment commenced in 2012, and the complainant works mostly on nightshift.

This complaint was received by the Workplace Relations Commission on 11th June 2024.

Background

Mr. Thomas Gostkowski works in the National Maternity Hospital (NMH) as a porter. He has worked in the NMH as a porter since 2012 and is paid €1,349 fortnightly.

Mr. Gostkowski, alongside his porter colleagues who are members of the Independent Workers Union (IWU), have been engaging in industrial action since the 16th of April 2024. Please see attached appendix 1 for a list of correspondence to the NMH regarding this issue.

The industrial action is lawful and is in accordance with the Industrial Relations Act 1990; a valid trade dispute has arisen between a group of workers and their employer, a secret ballot was held, and adequate notice was given to the employer. The industrial action taking place is a work to rule. The porters are engaging in work related activities that pertain to their contracts of employment and the duties and responsibilities handbook.

The industrial action is currently ongoing.

Penalisation

As Mr. Gostkowski is engaging in a work to rule alongside his colleagues, he is only completing work tasks which his contract and handbook mandate.

Mr. Gostkowski primarily works night shifts. During his night shifts, he has been asked to perform a work duty which is outside the scope of a porter’s responsibilities. As the task falls outside the responsibilities of a porter, he has declined to perform said task.

The task which was requested of Mr. Gostkowski was to wheel patients from the labour ward to the post-natal care ward. This task used to fall under the duties of care assistants. It is not covered by the duties of a porter.

Due to Mr. Gostkowski declining to perform this task, he has been the subject of numerous disciplinaries. He has been issued with one verbal warning, and one written warning. The disciplinary meetings which were held by NMH are directly in relation to the task Mr. Gostkowski is declining to perform. See appendix 2 for documentation relating to the disciplinaries. Please see appendix 3 for a the handbook of duties and responsibilities of a porter, and a copy of Mr. Gostkowski’s contract.

Mr. Gostkowski has been engaging in lawful industrial action, and his employer has disciplined him despite this. The union is asking the adjudicator to find in Mr. Gostkowski’s favour and rule that this is a clear case of penalisation for trade union activity.

Industrial Relations Issues

Mr. Gostkowski has been disciplined for engaging in lawful industrial action. As per the information provided above, the union is asking the adjudicator to issue a recommendation which recognises Mr. Gostkowski’s industrial action as lawful, and to cease all disciplinary action related to said industrial action. We further ask that the adjudicator recommend that all disciplinary sanctions made against Mr. Gostkowski be struck out from his record.

The within claim by Mr Thomas Gostkowsi (hereinafter referred to as ‘the Complainant’) against his employer, the National Maternity Hospital (hereinafter referred to as ‘the Respondent’) is brought under Section 9 of the Industrial Relations (Miscellaneous Provisions) Act, 2004.

The Legislation

Section 9(1) of the Industrial Relations (Miscellaneous Provisions) Act, 2004 provides: -

An employee, a trade union, an excepted body or an employer on behalf and with the consent of the employee, may present a complaint to a rights commissioner that a person has contravened section 8 in relation to the employee.

Section 8 of the Industrial Relations (Miscellaneous Provisions) Act, 2004 provides: -

(1) This section applies where it is not the practice of the employer to engage in collective bargaining negotiations and the internal dispute resolution procedures (if any) normally used by the parties concerned have failed to resolve the dispute and—

(a) a trade union or an excepted body takes steps to invoke the procedures under the Code of Practice on Voluntary Dispute Resolution under section 42 of the Industrial Relations Act 1990 (or any code of practice amending or replacing that code) in relation to a trade dispute, or

(b) such procedures have been invoked by a trade union or excepted body in relation to a trade dispute, or

(c) an employee intends to request the trade union or excepted body of which the employee is a member to make a request under section 2 of the Act of 2001 in relation to a trade dispute, or a trade union or an excepted body intends to make such a request, or

(d) such a request by a trade union or an excepted body has been made but the Court determines that the requirements specified in that section for the carrying out of an investigation of the trade dispute have not been met, or

(e) the Court determines that those requirements have been met and either—

(i) that investigation is being or has been carried out, or

(ii) any other procedure under the Act of 2001 consequent on or subsequent to that investigation is being or has been carried out.

(2) Where this section applies, none of the following—

(a) the employer,

(b) an employee, or

(c) a trade union or an excepted body of which an employee is a member, shall victimise an employee or (as the case may be) another employee in the employment concerned on account of— (i) the employee's being or not being a member of a trade union or an excepted body, or

(ii) the employee's engaging or not engaging in any activities on behalf of a trade union or an excepted body.

(3) In this section “victimise”, in relation to an employee, means to do any act (whether of commission or omission) that, on objective grounds, adversely affects the interests of the employee or his or her wellbeing and includes any act specified in a code of practice, prepared under section 42 of the Industrial Relations Act 1990 in relation to conduct prohibited by this section, to be an act falling within the foregoing expression but does not include any act constituting a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001.

(4) For the avoidance of doubt, “employee” in this section includes any person in the employment concerned the duties of whom consist of or include managing the business or activity to which the employment relates.

 Respondents Position

The Respondent’s position is that it acted fair and reasonably at all times, despite efforts from PT to conflate the issues of IWU recognition and the Complainant’s refusal to follow the instructions of management, which the Respondent submits are two completely different issues. In his complaint form to the WRC, the Complainant alleges that he has been disciplined for engaging in lawful industrial action. The Respondent refutes this assertion in its entirety. The action that resulted in the Complainant being issued with a Verbal Warning had been initiated prior to being made aware that the IWU were to ballot for industrial action, and it is the Respondent’s position that the rationale for the further disciplinary hearings and sanctions was as a result of repeated incidents of the behaviour that he had already been issued with sanctions for (i.e. a number of separate refusals to transfer patients). The sanctions have been progressive in nature, as considered best practice in the application of SI146/2000 and have all been issued in line with the Respondent’s Disciplinary Policy.

Work To Rule

The Respondent also submits that the Complainant and his other colleagues currently alleging that they are engaged in work to rule, who remain available/ continue to work overtime, are not engaged in Work to Rule in its intended manner and on that basis, the Respondent is at a loss to ascertain why Work to Rule would be used as the trigger for issues pertaining to patient transfers, when this issue was first raised with the Complainant months prior to any notice of intent to ballot or subsequent industrial action. The Respondent submits that transferring patients is one of the primary roles of porters throughout the hospital and that all staff are expected to follow and adhere to reasonable management instructions in the course of their work. Furthermore, patient transfers across all departments have been a long established and ongoing part of the porter role across the hospital for a significant number of years, as documented by as part of the local Independent Job Evaluation review in 2007. At no time throughout the disciplinary process has the complainant or their representative been able to provide a written instruction from hospital management that any areas of the hospital were precluded in terms of the facilitation of patient transfers by porters.

The Respondent refers to Waterford County Council and A Group Workers LCR20726 and respectfully submits that similar circumstances arise.

‘’The employer's position is that IFESA is not recognised within the Local Government sector for the purposes of negotiating terms and conditions relating to the grade of Retained Firefighters.’’

The Respondent confirms that IWU is not recognised for the purposes of collective bargaining within the Public Healthcare Sector pertaining to any grade.

‘’Negotiation rights in respect of an individual local authority cannot be considered in isolation as it is a matter for the sector as a whole’’

The Respondent’s position is that negotiating rights in respect of an individual hospital cannot be considered in isolation as it is a matter for the sector as a whole. Furthermore, the Respondent submits that collective bargaining in the health sector is ultimately a matter for their funder, the HSE, and the recognised Health Sector unions.

The Respondent are funded under Section 38 of the Health Act, 2004 by means of a Service Level Agreement. It is a condition of this agreement that enforces HSE terms and conditions of employment, that are negotiated on a collective basis with the recognised health sector unions.

It is not within the gift of the Respondent to negotiate or recognise unions that are not recognised for the relevant grade. This does not infringe the right of any employee to be represented by a member of any trade union of which they are a member at meetings, where deemed appropriate, and in line with the relevant policy.

The Labour Court in the aforementioned case, recommended as follows: -

‘’Unlike all other cases in which the Court has recommended that a trade union be recognised for industrial relations purposes, the employer in this case has in place well established arrangements for the conduct of collective bargaining with authorised trade unions. The applicants in this case are, in effect, a break-away group who are seeking to establish negotiating rights with the employer through the convenience of another trade union that has no recognised involvement in negotiations with Local Authorities.

While the applicants have an acknowledged right to be members of whatever organisation they choose, the exercise of that right cannot, in the circumstances of the present case, imply a concomitant obligation on the employer to negotiate with their chosen organisation. In the Court’s opinion, recognition of this group would have a highly undesirable destabilising effect on the established negotiating arrangements currently in place. It would also greatly impair the orderly conduct of industrial relations within the Local Authority sector. On that account, it would be irresponsible for the City Council to accede to the applicants request for recognition.

For these reasons the Court does not recommend concession of the workers’ claim.’’

The Respondent again wishes to confirm that the lWU not being a recognised trade union in the Public Health Sector does not infringe the right of any employee to be represented by a member of any trade union of which they are a member at meetings, where deemed appropriate, and in line with the relevant policy.

The Section of the Act that the Complainant seeks to rely on in pursuance of their complaint is hinged on the precondition that the Respondent does not engage in collective bargaining. This is factually inaccurate.

Section 8 of the Industrial Relations (Miscellaneous Provisions) Act, 2004 provides: -

‘’This section applies where it is not the practice of the employer to engage in collective bargaining negotiations and the internal dispute resolution procedures (if any) normally used by the parties concerned have failed to resolve the dispute’’

The Respondent engages in collective bargaining in consultation with other Section 38 funded agencies and the HSE, as their funder, who negotiate with recognised trade unions for implementation across the entire public healthcare sector.

Furthermore, as this has been submitted as an individual complaint rather than collective, it is pertinent for the Respondent to highlight that no formal grievance has been lodged pertaining to this allegation of penalisation, and it is their position that in such circumstances, a third party referral prior to exhausting, or invoking the internal and prescriptive grievance procedures, is premature, and contrary of Section 8 of the Act.

Moreover, the Respondent also refers to the Recommendation of the Labour Court in Vantastic and National Bus and Rail Union LCR22021, which provides: -

‘’The Purpose of the 2001 Act

The intention of the legislature in enacting the 2001 Act is concisely and aptly summarised by Anthony Kerr SC at page 269 of The Trade Union and Industrial Relations Acts (Fifth Edition, Round Hall, 2015) as follows:

The purpose of this Act, as amended by the Industrial Relations (Miscellaneous Provisions) Act 2004 and the Industrial Relations (Amendment) Act 2015, is to give new dispute-settling powers to the Labour Court in cases where collective bargaining arrangements are not in place in the firm in question.’’

As outlined above, The Respondent engages in collective bargaining in consultation with other Section 38 funded agencies and the HSE, as the funder with recognised trade unions for implementation across the entire public healthcare sector.

In light of the foregoing, it is the Respondent’s position that this complaint has been misconceived under Section 9 of the Industrial Relations (Miscellaneous Provisions), Act 2004.

Conclusion

The Respondent respectfully requests that the Adjudication Officer find that this claim has been taken without merit and to uphold the Respondent’s position.

The representative for the respondent has clearly said:

The Respondent submits that transferring patients is one of the primary roles of porters throughout the hospital and that all staff are expected to follow and adhere to reasonable management instructions in the course of their work. Furthermore, patient transfers across all departments have been a long established and ongoing part of the porter role across the hospital for a significant number of years, as documented by as part of the local Independent Job Evaluation review in 2007. At no time throughout the disciplinary process has the complainant or their representative been able to provide a written instruction from hospital management that any areas of the hospital were precluded in terms of the facilitation of patient transfers by porters.

It is very difficult  to disagree with this.

I accept that the Independent Workers Union is not recognised for the purposes of collective bargaining within the Public Healthcare Sector pertaining to any grade.

I can find no merit whatsoever in this complaint. The complaint is not well founded.

As outlined above.