FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEALTH SERVICE EXECUTIVE - AND - A WORKER (REPRESENTED BY PSYCHIATRIC NURSES ASSOCIATION) DIVISION : Chairman: Mr McGee Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Recommendation R-021679-IR-04-JH
BACKGROUND:
2. The dispute before the Court concerns a claim by the Union on behalf of its member who is employed as a Psychiatric Nurse in the East Galway Service for the maintenance of an allowance at the difference between the maximum of the salary for his substantive post of a Senior Staff Nurse and the maximum of the next promotional post which is now Clinical Nurse Manager 2. The Worker is currently paid an allowance equivalent to 90% of the difference between the salary of Senior Staff Nurse and Clinical Nurse Manager 1. Management contends that this is the correct structure of payment for the worker and rejects the claim.
- Promotions to nursing supervisory posts in psychiatric services was based on length of service until the early 1980's. A joint Union/Management forum was established to examine alternative methods of selection for promotion in order to comply with amendments to equality legislation. Promotions on a seniority basis ceased in 1982 and in 1988 was replaced by a system of competition/selection. From 1982 to 1987, no permanent appointments were made at Clinical Nursing Officer (CNM1) or CNM 2 level in psychiatric services. During that period, those posts were filled in a temporary capacity on an "acting up" basis. An allowance of 90% of the difference between the maximum of the salary of the nurse's substantive post and the maximum of the next promotional post would be paid to those in an "acting up" capacity on a "red -circled" basis, if they were unsuccessful at competition for a post they would have had an expectation of being promoted to prior to the changes in the system. Following a number of claims by the Union on behalf of its members in 2000, agreement was reached with Management which resulted in the regrading of CNM1 to CNM 2 in certain circumstances. As a result, the CNM1 grade no longer exists in the East Galway Services, the area to which the worker is assigned.
- The matter was referred to a Rights Commissioner for investigation and recommendation. His findings and recommendation issued on the 7th June 2005, as follows:
- “At the hearing I sought evidence from the Executive that the issue was indeed a national issue in the real sense. That is to say that it had simply been raised by the PNA nationally but that concession of the claim would have implications for other Boards and therefore did not meet the general meaning and intent of individual cases as they are referred to the Rights Commissioner Service. On the 7th April 2005 I received correspondence from the Board. I am satisfied on the basis of that correspondence that the position set out by the PNA, although genuinly believed by them at the hearing, is not the case. That is to say that I am satisfied that the workers case is not unique, that is a national issue and that it should be pursued in the appropriate manner.
Based on the submissions made and for the reasons set out in the foregoing, I do not recommend concession of the workers claim and I do recommend that if the matter is to be pursued by the PNA, that it be done on the basis of correspondence previously initiated by the Union at national level.”
The worker was named in the Rights Commissioner’s Recommendation.
On the 23rd June 2005, the Union appealed the Rights Commissioner’s Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 21st September, 2005. - “At the hearing I sought evidence from the Executive that the issue was indeed a national issue in the real sense. That is to say that it had simply been raised by the PNA nationally but that concession of the claim would have implications for other Boards and therefore did not meet the general meaning and intent of individual cases as they are referred to the Rights Commissioner Service. On the 7th April 2005 I received correspondence from the Board. I am satisfied on the basis of that correspondence that the position set out by the PNA, although genuinly believed by them at the hearing, is not the case. That is to say that I am satisfied that the workers case is not unique, that is a national issue and that it should be pursued in the appropriate manner.
- The matter was referred to a Rights Commissioner for investigation and recommendation. His findings and recommendation issued on the 7th June 2005, as follows:
UNION'S ARGUMENTS:
3. 1. The minimum that the worker is entitled to is to continue to benefit from 90% of the difference between the maximum of his salary for his substantive post and the maximum of the next promotional post which is now CNM 2 as CNM 1 does not exist in his region of employment.
2. The claim is a unique claim as there are no other nurses in a similar situation and will not result in knock-on claims for other areas. The individual has fallen between two stools and has been severely disadvantaged.
MANAGEMENT'S ARGUMENTS:
4. 1. The grade CNM 1 remains a significant grade within the psychiatric nursing service. The grade remains the "next promotional post" for staff nurses. It is Management's view that the worker is adequately compensated for the fact that he did not achieve promotion.
2. The case cannot be seen as a unique case and any concession of the claim could give rise to subsequent claims from other holders of the 90% allowance, both currently in employment and retired. The claim is cost increasing and in breach of Section 19.6 of Sustaining Progress.
DECISION:
While the position put forward by the Union on behalf of the claimant is not without merit, nevertheless, the Court does not feel that one area within one region can be isolated from the national framework. On that basis, the Court upholds the recommendation of the Rights Commissioner and dismisses the appeal.
Signed on behalf of the Labour Court
Raymond McGee
13th October 2005______________________
JO'CDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Joanne O'Connor, Court Secretary.