Key Learnings
This case highlights the entitlement to on call payments should be recorded in writing in order for both parties to be aware of the provisions agreed. When it comes to terms and conditions it is essential that any changes are only agreed following a period of consultation and it is not appropriate for any changes to be uniformly applied without the necessary engagement of both parties. At all stages of the employment relationship and where a concern is brought by an employee to an employer, the appropriate grievance procedure should be utilised as a means to resolve the issue.
Background
The employee is a Clinical Engineer with the respondent hospital. He was the point of contact for call-out and monitoring a temperature system for fridges from 2012 and only received payment for this on a temporary basis from 2020. He is seeking the establishment of this allowance on an ongoing basis and retrospective payment to 2012.
Summary of Complainant’s Case
The case arises as a result of the respondent’s failure to pay the complainant a call out payment since 2012. On reviewing the case, management came to an agreement but refused retrospective payment. Management withdrew the agreement after they increased the rate for the complainant’s colleagues and then proceeded to expect the complainant to undertake the work during the day and tried to proceed with a plan to put alternative arrangements in place for the call out period.
In 2008 the complainant was tasked by the General Manager with the installation of a temperature monitoring system for monitoring fridges during the day and out of hours. The complainant monitored the alerts generated by this system for every excursion on the pharmaceutical fridges on 24 hour 7 days a week basis backed up by a Refrigeration company based 10 minutes from the hospital. The Refrigeration company agreed a fee with the complainant to call to the Hospital to fix a fridge during and outside normal working hours. They also agreed a fee for monitoring the fridges on a 24hr basis. To save money for the hospital the complainant received some training from the company on how to address some of the smaller issues with the fridges and how to program their digital controllers that controlled the set point of the fridge.
Following the employment by the Hospital of a new senior Pharmacist in 2020 the complainant became aware that the role they were carrying out, monitoring a system out of hours, was entitled to remuneration.
In June 2020, the complainant made the General Manager aware of the situation and she verbally agreed to align the complainant to the maintenance On Call rate for the Hospital which at the time was 4 hours standby pay per week and 3 hours pay for every call out. In addition, agreement was reached that any additional work in relation to the fridges due to the opening of the new Palliative care building would be undertaken by the complainant. At the same time, management were in negotiations with the maintenance staff to increase their standby rate.
In February 2021 the General Manager verbally told the complainant that she would be getting the on-call team in maintenance to monitor the fridges out of hours going forward and she would be removing the complainant’s standby rate. When the complainant requested clarification on her decision, she said her decision was final and he could take a grievance if he wished.
At this stage the complainant was shocked and upset due to the fact he was undertaking the duties since 2008 without remuneration and only just agreed with management a payment without any request for retrospective payment. On 1st April 2021 the complainant received an email from the General Manager informing him that she would be transferring the monitoring of the Alerts to Pharmacy during the day and the Maintenance on call team out of hours from Sunday the 25th of April.
On the 9th April 2021 the complainant advised the General Manager that this was now a Union matter and outlined concerns he had in relation to the changes as there was absolutely no consultation with the complainant prior to implementation. On the 23rd of April 2021 the complainant received an email from the General Manager requesting that he continue monitoring the Fridges until further notice.
As the complainant had monitored the fridges from December 2012, he kept monitoring the system beyond the 25th of April until a proper arrangement was put in place even if the payment was removed.
The General Manager set herself up to receive all the alerts from the system without consulting with the complainant or making him aware of the change. On 28th April 2021 the Union wrote to the General Manager requesting a meeting but received no response. Instead, the General Manager contacted the complainant directly regarding a policy for monitoring drug fridges which he forwarded to the Union.
On 29th April 2021 the General Manager contacted the complainant while on annual leave notifying him that she was making alternative arrangements regarding the drug fridges. She diverted the alerts for the fridges to her own phone.
On 2nd June 2021, a meeting took place between management and the Union where agreement could not be reached in relation to the on Call/Call out arrangement going forward. Forsa requested that management provide a writing proposal for the out of hours monitoring of the drug fridges going forward.
On 4th June 2021 the General Manager sent the Union the proposal for monitoring the drug fridges which had changed once again. Now she stated instead of the Maintenance on call team monitoring the temperatures of the fridges through their BMS system that she was removing out of hours temperature monitoring completely off all the drug fridges and the maintenance on call team were going to monitor the mains supply power to the fridge circuits on the 2 fridges in the pharmacy department. When the complainant contacted the Director of nursing and the Pharmacist they confirmed in writing that they were unaware of this latest proposal and were in total opposition to it.
Further engagement took place. However, on 18th November 2021 the Union requested management final position in relation to the retrospective payment, the application of the increased on-call rate as per agreement with maintenance staff.
On 10th December 2021 the Union again clarified that the proposal was not acceptable due to the fact the proposal was subject to further conditions. The proposal stated “The Senior Clinical Engineer will take a lead role in all capital projects for the Hospital, from initiation through to completion of the projects. On the 17th December 2021 management acknowledged the Union position but stated “The employer reserves its position at this point in time”.
Further engagement took place but no agreement could still be reached. At this stage, the case was referred to the WRC.
On 27th September 2022 management wrote to the complainant requesting that he attend meetings in relation to the new Palliative care unit and the purchasing of equipment for same. Management had clearly outlined in correspondence that the complainant’s terms and conditions were not affected by the introduction of this new building to the service. Management requested that he undertake the duties under protest. However, management were not willing to engage in any consultation on the matter.
Summary of Respondent’s Case
In December 2012, the respondent Hospital installed a system to monitor and record temperatures of medication and other fridges in the hospital. The system uses sensors to record the temperature of fridges every 30 minutes. The system is set up such that if there is a temperature excursion a mobile phone warning text is sent. The system was set up such that a text alerts are sent to the mobile phone of the senior clinical engineer who is single handed postholder. In June 2020, following the highlight of a risk by the senior pharmacist at the hospital in relation to their active monitoring of drug fridge temperatures, the general manager agreed that the complainant, the clinical engineer, should actively monitor the drug fridge temperature on a 24-hour basis using the existing system and actively respond in real time to any out of hours alerts. This arrangement for 24-hour monitoring was of a temporary nature pending review for the requirement of alerts, the arrangements in other hospitals and the implementation of a long-term plan.
A review of the requirements for 24-hour monitoring has been completed and a standard operating procedure has been developed and approved by the Drugs and Therapeutics Committee, which is the governing body for medications management in the hospital. The committee has agreed that 24-hour monitoring temperature excursions is not required. However, the 24-hour monitoring of the two main fridges is a requirement due to the volume and value of medication stored there. As the fridges in the pharmacy department are accessed very seldomly and very infrequently out of hours, and only by the operation site manager on those infrequent occasions, the probability of a temperature excursion is extremely low if the fridges are well maintained.
In the event of a temperature excursion in one of the two fridges the alert would need to be responded to on an immediate basis. In this regard, the drugs and therapeutics committee has agreed that a visible and audible alarm should be placed at the hospital switchboard to alert staff on duty in the hospital in the event of a temperature alert. The standard operating procedure (SOP) will be put forward for approval at the next meeting of the hospital safety committee, and, once approved, the requirement for the complainant to actively monitor the alerts on a 24-hour basis will cease. Consequently, payment of the current temporary on call allowance will also cease.
As part of the SOP the complainant is required to continue to monitor the alerts during his regular working hours. The complainant does not agree with the SOP, which has been approved by the hospital drugs and therapeutics committee. In particular, he does not agree with the decision to cease 24-hour monitoring and to limit the monitoring out of hours to the main medication fridges only. Feedback in relation to the development of SOP for the fridge temperature monitoring was requested from all stakeholders, including the complainant, and the feedback was reviewed and discussed in detail at a meeting of the drugs and therapeutics committee in June 2022. Management is requesting that the complainant continue to monitor the temperature excursion alerts during his regular working hours as part of his current duties, once the SOP is approved by the safety committee.
The complainant does not agree to the request for him to actively monitor the temperature alerts on a 24-hour basis from June 2020 which was a temporary arrangement pending the review by management of the requirement for 24-hour monitoring. It is management’s position that the complainant was initially verbally advised of the temporary nature of the agreement and advised in writing on the 6th January 2021. The complainant claims that the on-all allowance for four hours pay per week, of which is in receipt since June 2020, is aligned to the on-call allowance which is paid to the Hospital’s maintenance team who provide an out of hours on-call service. The complainant claims that any increase in the on-call rate paid to the maintenance team should automatically be awarded to him.
The complainant claims that he was requested by management, in December 2012, to monitor and respond to out of hours alerts on a continuous basis and is now seeking payment of the allowance to be backdated to December 2012. It is management’s position that, while alerts in relation to fridge temperature excursions were sent to him on a 24-hour basis since then, there is no evidence that the complainant was requested by management to actively monitor and respond to the alerts on a 24 hour basis. Nor has management received any evidence that the alerts were being actively monitored and responded to out of hours in that period.
Findings and Conclusions
The complainant is seeking to have an on-call allowance, linked to that of the maintenance staff, continued indefinitely and secondly, retrospective payment of €180 per week, from December 2012 until June 2020. For its part the respondent says it was not aware of any formal arrangement with the complainant in 2012.
The email of 6 January 2021 from the General Manager acknowledges that an allowance has been in place since June 2020 for which the complainant was to be paid a stand-by payment of 4 hours per week and an hourly call-out rates as appropriate. The e-mail went on to say that the payment is short-term until such time as the longer-term arrangement for monitoring the fridges was put in place. Arrears were paid from 18th June 2020.
An employee is entitled to rely on a legitimate request by his or her manager to carry out work, as being made on behalf of and with the authority of the Organisation. The Adjudicator is in no doubt that he was asked to carry out the function in 2012. However, while he may have been asked to be available, no approval for payment was made in 2012, nor, crucially, looked for, until 2020. In the absence of claims no record of the actual out of hours attendance could be verified.
The complainant is seeking payment since 2012, for what he perceives to be an outstanding amount which the Adjudicator calculates to be in the region of €70k. The Adjudicator thinks it is unreasonable to assume that his employer had committed to paying that amount to him. Indeed, he himself stated that he only became aware of any possible payment for this work in 2020.
In relation to the proposals for the future, while acknowledging that the complainant disagrees with the monitoring procedure to be used, it is none the less ultimately a management decision for good or ill. It is open to management to change the monitoring procedure and consequently, to eliminate the allowance being paid to the complainant for out of hours work.
The Adjudicator recommends that the employer pay the complainant the sum of €10,000 in respect of the retrospective work carried out prior to the payment of the current allowance. Secondly, the Adjudicator recommends the employer pay the employee €10,000 for the loss of this allowance going forward.
Decision
The Adjudicator recommends that the employer pay the employee €20,000 in full and final settlement of this dispute.