FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEALTH SERVICE EXECUTIVE MID-WESTERN AREA - AND - A WORKER (REPRESENTED BY IRISH NURSES ORGANISATION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Mr Nash |
1. Failure to implement Labour Court Determination AEE/00/16 No. 32
BACKGROUND:
2. The dispute before the Court concerns a claim by the Union on behalf of it's member employed by the Health Service Executive (HSE) as an Acting Deputy Matron in the Mid Western Regional Hospital, Limerick. The claim arises from the alleged failure of the HSE to fully implement a Labour Court Determination DEE032, which was upheld by the High Court. The Union contends that the employer repeated the action which gave cause for the original complaint under the Employment Equality Act on two subsequent occasions.
- Following a local competition in 1989 the Claimant was appointed as Acting Deputy Matron at the Mid Western Regional Hospital and she remained in the position until 1993, when a competition was held for a permanent post of Deputy Matron. The claimant having been unsuccessful for the position reverted to her previous position of Assistant Matron. In 1996 following another competition for the position of Acting Deputy Matron, the Claimant was again appointed to the position. In 1998 approval was given from the Department of Health for the Claimant to fill the position on an on-going basis. The Union contends that the Claimant was never paid the Department of Health salary scale in respect of Deputy Matron but was instead the minimal acting up provisions which are available under the Department of Health circulars.
- On the 4th May, 2005, the Unionreferred the issue to the Labour Court, in accordance with Section 20(1) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 17th January, 2006.
The Employer indicated to the Court that they would allow the Union to waive their obligation to be bound by the Court.
- On the 4th May, 2005, the Unionreferred the issue to the Labour Court, in accordance with Section 20(1) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 17th January, 2006.
3. 1. The HSE Mid-Western Area is to cease the practice of usurping the Claimants role and allow her operate as Deputy Matron for the Group of hospitals encompassed by the Mid-Western Regional Hospital and that she be paid the same allowance as was paid to the male occupant of the post when he replaced the Director of Nursing.
2. In accordance with the Equality Officer's finding as upheld by the Labour Court Judgement, that the Claimant be paid the amounts which she would have received for the period when the Director of Nursing was absent from work had she deputised for her. During the time of processing the discrimination claim on behalf of the Claimant, there was a second occasion when another person was appointed to deputise. Consistent with the findings referred to, the Union believes that the Claimant is legitimately entitled to a payment equating to the allowance paid to that person during which she displaced the Director of Nursing.
3. The Claimant should be paid the same salary as both other appointees for her current prolonged period acting as Director and Senior Nurse Manager for the group of hospitals and that the Court recommend appropriate compensation for the Claimant for the distress and humiliation she suffered as a consequence of the HSE's actions.
HEALTH SERVICE EXECUTIVE'S ARGUMENTS:
4. 1. It is submitted that the manner in which the INO is now attempting to deal with this complaint under Section 20(1) of the Industrial Relations Act, 1969, is an attempt to undermine the clear directions given by this Court in its determination pursuant to the Employment Equality Act, 1977, and could even be seen as an attempt to undermine the process of this Court.
2. It is clear that the Determination pursuant to the Employment Equality Act, 1977, of April 2003, has been complied with in full by the Employer and there is no basis whatsoever in fact for the INO to contend that the Employer is guilty of any wrongdoing in this regard. The only matter therefore, properly before the Court is the appropriateness of the INO's complaint under Section 20(1) of the Industrial Relations Act, 1969, that the Claimant should be permitted to operate as Deputy Matron for the group of hospitals as encompassed by the Mid-Western Regional Hospital and the claims for payment of allowance paid to the successful female candidate who was appointed to deputise for the Matron during periods of absence other than that period of absence during which the Matron was replaced by the male candidate, which gave rise to the Claimants original complaint under the Employment Equality Act, 1977.
3. At no time has the Employer acted in any way contrary to agreed national procedures for the HSE. The HSE has, at all times, acted lawfully and appropriately in how it has approached this case. The Employer is satisfied that following full consideration of all matters, the Court will be satisfied that, in all circumstances, the Union's claim should not be upheld.
RECOMMENDATION:
The case before the Court refers to the Union’s claim that the HSE Mid -Western Area failed to fully implement Labour Court Determination AEE/00/16 No. 32 which was subsequently upheld on appeal by the High Court. Furthermore, the Union sought that the HSE Mid -Western Area should cease the practice of usurping the Claimant’s role and it should allow her to operate as Deputy Matron for the group of hospitals encompassed by the Mid -Western Regional Hospital.
Claim (a) : Failure to fully implement Labour Court Determination No.03/2
- 1. the HSE Mid -Western Area should pay her the same allowance as was paid to the male occupant of that post when he replaced the Director of Nursing
- 1. the HSE Mid -Western Area should pay her the same allowance as was paid to the male occupant of that post when he replaced the Director of Nursing
Circular 32/59 relates to “Payment of extra remuneration to substitute officer” and states
- “an officer acting in a higher post may be paid the minimum of the scale for the higher post or, if little or no financial benefit would thereby ensue to the officer, such allowance at a rate not exceeding £50 a year as the Manager may decide to pay having regard to the difference between the scales involved and any other relevant consideration. The rate of remuneration of a substitute should in no case exceed the maximum of the higher office.”
- “an officer acting in a higher post may be paid the minimum of the scale for the higher post or, if little or no financial benefit would thereby ensue to the officer, such allowance at a rate not exceeding £50 a year as the Manager may decide to pay having regard to the difference between the scales involved and any other relevant consideration. The rate of remuneration of a substitute should in no case exceed the maximum of the higher office.”
The case referred to the Equality Officer gave details that the Matron of the Regional Hospital complex was due to go on leave in October 1998 for approximately 6 months hence the reason for the competition - the subject of the discrimination claim. This was further extended for a period of six months and the male occupant continued in the role for the extended period.
Management gave details of the payments made to the Claimant over the period week no. 36 1998 (25th November 1998) to week no. 32 1999 (up to 29th October 1999). The Court notes the contradictory evidence given regarding the dates the male occupied the position. Having examined the details the Court has not been able to definitively establish the exact dates in question. However, the Court recommends that an additional €200 should be paid to the complainant in settlement of this matter.
- 2. In accordance with the Equality Officer’s findings as upheld by the Labour Court and the High Court, the Claimant should be paid the amounts which she would have received for the period when the Director of Nursing was absent from work had she deputised for her.
- 2. In accordance with the Equality Officer’s findings as upheld by the Labour Court and the High Court, the Claimant should be paid the amounts which she would have received for the period when the Director of Nursing was absent from work had she deputised for her.
The Court stated in Determination 03/2 :
- “The Court accepts that it would be quite unusual for a person holding a deputy position to have a different range of responsibilities while acting up to that of the person for whom they are deputising.”
- “The Court accepts that it would be quite unusual for a person holding a deputy position to have a different range of responsibilities while acting up to that of the person for whom they are deputising.”
- “…her deputising role extended over the same range of functions which attached to the substantive post of Matron/Director of Nursing.”
- “…her deputising role extended over the same range of functions which attached to the substantive post of Matron/Director of Nursing.”
The Court in compliance with its finding in Determination 03/2 recommends that the Claimant should have been permitted to operate as Deputy Matron for the Group of Hospitals encompassed by the Mid -Western Regional Hospital, and therefore should have been paid the deputising allowances appropriate to that position for the periods in question.
Management gave details to the Court that the male occupant acting as Matron/Director of Nursing did not receive Performance Related Pay during the period of his acting up, nor did the Claimant in her role as Director Of Nursing. Therefore, the Court does not find in favour of the Union’s claim for the payment of a Performance Related Payment for the Claimant during this period.
- 3. During the time of processing the discrimination claim on behalf of the Claimant, there was a second occasion when another person was appointed to deputise. Consistent with the findings referred to the Claimant is entitled to a payment equating to the allowance paid to that person for the period during which she displaced the Claimant.
- 3. During the time of processing the discrimination claim on behalf of the Claimant, there was a second occasion when another person was appointed to deputise. Consistent with the findings referred to the Claimant is entitled to a payment equating to the allowance paid to that person for the period during which she displaced the Claimant.
- “If the claimant were to be displaced again in circumstances amounting to discrimination or victimisation she would have an adequate remedy in law……. If however, she was displaced in circumstances which did not amount to discrimination the Employment Equality Act would have no application and any resulting dispute could be dealt with as an industrial relations matter or as a contractual issue.”
- “If the claimant were to be displaced again in circumstances amounting to discrimination or victimisation she would have an adequate remedy in law……. If however, she was displaced in circumstances which did not amount to discrimination the Employment Equality Act would have no application and any resulting dispute could be dealt with as an industrial relations matter or as a contractual issue.”
- 4. Compensation for the stress and humiliation caused to The Claimant by the succession of occasions on which her position was usurped.
- 4. Compensation for the stress and humiliation caused to The Claimant by the succession of occasions on which her position was usurped.
Having considered the issues, which were referred, in all the circumstances of this case, the Court recommends compensation of €850 for any distress caused.
- Claim (b): HSE Mid – Western Area should cease the practice of usurping the Claimant’s role and allow her to operate as Deputy Matron for the group of hospitals encompassed by the Mid-Western Regional Hospital.
- Claim (b): HSE Mid – Western Area should cease the practice of usurping the Claimant’s role and allow her to operate as Deputy Matron for the group of hospitals encompassed by the Mid-Western Regional Hospital.
This Court notes that the Director of Nursing is currently on sick leave and in the absence of a Locum Director of Nursing The Claimant has been deputising in her place since June 2003. This deputising position is pending the outcome of this case as the HSE wish to fill that position on a permanent basis through open competition in accordance with their stated intentions to advertise the post in February 2005. Such action has been postponed pending the outcome of this claim.
This Court recommends that in recognition of her role during the absence of the Director of Nursing and where no Locum has been appointed in place of the Director of Nursing, that the Claimant should be treated in the same manner as the Director of Nursing for the purposes of her duties, responsibilities and remuneration for the Mid - Western Regional Hospital.
However, this Court does not consider it appropriate to anticipate events into the future and thereby does not recommend in favour of the Claimant being automatically entitled to act up as Director of Nursing for the Group of Hospitals encompassed by the Mid -Western Regional Hospital.
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
8th May, 2006______________________
JO'CDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Joanne O'Connor, Court Secretary.