Hospital staff win overtime discrimination case
Mr Justice Joseph R, Micallef, sitting in the First Hall of the Civil
Court, yesterday upheld a writ filed by five Mount Carmel Hospital employees
against the Director General of Health, ruling that they had been
discriminated against.
This judgment was delivered in the writ filed by Joseph Attard, Nikolina
Bugeja, Francis Ebejer, Saviour Mifsud and Nazzareno Tanti against the
Director General and the Attorney General.
The case against the Attorney General was withdrawn during the
proceedings as it resulted that he ought not to have been a party to the
case.
The court noted that the workers had claimed they were discriminated
against when the Director General had not allocated them any overtime work
when they were obeying a union directive in the course of an industrial
dispute at the hospital. This, they said, was in violation of the law
governing industrial action.
Mr Justice Micallef noted that in 2000 the Health Department had carried
out a restructuring exercise in connection with the nurses at the hospital
and in May 2000 the GWU had issued a directive to its members in terms of
which they were to ignore the instructions given to them to report for work
in different wards. The GWU's directive was in the sense that the nurses
were to report for work in the wards they had originally worked in.
The union had protested to the Health Department in June 2000 and had
claimed that members who were observing the directive were not being
allocated overtime work.
The department had replied that union members, including the five
employees involved in the court case, who were not reporting to work as per
instructions given by the department would not be allocated overtime work,
nor would they benefit from time off in lieu.
In its judgment, the court noted that a central issue of this case was
whether the overtime in question was supposed to be carried out in the wards
to which the five employees were reporting for work or whether that overtime
was to be carried out in different wards or other areas of the hospital.
According to the Director General, the five workers wanted to continue
working in the wards they had occupied prior to the redeployment of hospital
staff while at the same time they wanted to carry out overtime work in
different wards.
On the other hand, it resulted from evidence that they were being denied
overtime work in the wards where they actually worked and that other
employees who were not participating in the industrial action were being
allocated overtime against payment.
Mr Justice Micallef declared that the court was in agreement with the
submissions of the Director General to the effect that it was the employer's
right and prerogative to deploy employees in the best interests of the
department.
Industrial law did not entitle the employee to choose where he was to
work within the department. Naturally, this implied that the redeployment of
employees had to be correctly motivated and that it ought not to be carried
out in a spirit of vindictiveness. When referring to overtime work the court
declared that this was not an inevitable consequence of a contract of
employment, nor was it a recognised condition of employment. On the
contrary, overtime work had always to be considered in the light of the
right of the employee to proper rest.
However, in this case, it resulted that those employees who had observed
the union directive were denied overtime work while the work was allocated
to those who had not followed the directive.
This type of behaviour on the part of the Director General had resulted
in discrimination against the five employees who were observing a union
directive in the course of industrial action.
The court therefore concluded that the Director General had discriminated
against them. The court added that it had resulted that by April 2001 the
five workers had been awarded overtime work after an agreement had been
reached with the authorities.
Dr Aron Mifsud Bonnici was counsel to the five employees.
Dr Bridget Gafá was counsel to the Director General Health. |
