FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : ST. LUKE'S HOSPITAL (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY IRISH NURSES ORGANISATION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Appeal of Rights Commissioner's Recommendation R-040486-IR-06/JT
BACKGROUND:
2. The appeal involves a claim by the Claimant who is seeking to be upgraded to Assistant Director of Nursing level on night duty with retrospective effect to November 2001. The Union contends that a Labour Relations Commission agreement between staff and the Health Service Employers stated that Night Superintendent should be graded at Assistant Director of Nursing level (ADON) and should have applied to her with effect from November, 2001. Management rejects the claim on the basis that as a small specialist voluntary organisation, the hospital does not require ADON grades on night duty and that the Claimant had in 2005 been upgraded from CNM1 to CNM11 and Management could not support a further upgrade at this time. The matter was referred to a Rights Commissioner for investigation and Recommendation. On the 22nd November 2006, the Commissioner issued his Recommendation as follows:
- “Having considered the submissions and documentation and arguments put forward by both parties I have noted the following points:
•There is no requirement for Night Sisters to undertake bed management is the case by the ADON during the day.
•There is no requirement for certain management functions HR rostering performance management etc for the night sister these matters seem to be resolved coming on duty or are handed over to the Day Nurse Sister.
•I further note paragraph 7.2.3. on Nursing report.
- The respondent side stated when the position was advertised in November 2003 the claimant applied for the post but subsequently withdrew her application. The claimant further applied for the position in February 2002 when the post was re-graded under the new Nurse structure as CNM 111 position however she was not successful in her application. The post was advertised again in 2004 and filled. The claimant did not put forward an application for the position even though all nursing staff were made aware of the proposal through staff briefings”.
I therefore uphold the respondent's position and reject the claim".
On the 15th December, 2006 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 6th June, 2007.
UNION'S ARGUMENTS:
3.1 St. Luke's Hospital is a Band 2 hospital with 179 beds. In the past seven years it has been transformed into a modern technologically advanced centre of excellence in Oncology care. The rising number of radiotherapy treatments (76,000 in 2002) reflects both the demand on the service and the increased complexity of treatment. As patients become more dependent and patient care becomes more complex, it is unacceptable that the status and role of the Night Nurse Manager would diminish.
2. A Night Superintendent post existed in St. Luke's Hospital until January, 2005. Since Management changed the night management structure the Night Superintendent grade has been upgraded to Assistant Director of Nursing (ADON).
3. The Union argues that the reason given by Management for downgrading the Night Superintendent's role does not stand up to scrutiny or closer examination. Their argument is without foundation and many other hospitals are managed by a Night Superintendent who do not have A&E, ICU, CCU or emergency surgery services at night.
4. The Union gave a list of other similar type hospitals that already have Night Nursing Managers graded at ADON level ie. Orthopaedic Hospital Croom, Mallow Hospital, Ennis Hospital, St. John's Limerick, Our Lady's Hospital Cashel, Bantry General, St. Mary's Gurranebraher. All of these hospitals are smaller and some of them being less than have the size of St. Luke’s, have the management structure and grading that the Claimant is seeking.
5. The Union believes that the Claimant is clearly operating at Assistant Director of Nursing level and it is unfair and unnecessary that she should suffer a loss due to being graded at CNM11 level. Previous Rights Commissioner Recommendations have already corrected this situation where claims arose. Also, a National Agreement, Department of Health and Children Circular and the Report of the Commission on Nursing provide for the Claimant to be graded at ADON level.
6. The Union maintains that the Claimant being regraded from CNM1 to CNM11 was the result of an anomaly being rectified and rejects management's argument that this allowed the claimant to leapfrog into a senior position without promotion to the next logical grade in the nursing grading structure.
MANAGEMENT'S ARGUMENTS:
4.1 Management contends that the existing night duty structure is adequate for the size and function of the Hospital and that there is no necessity for an ADON grade on night duty.
2. At the Right Commissioner's hearing the Union relied on an agreement and subsequent Circular issued by the Department of Health and Children concerning the upgrading of CNM111 Night Superintendents to be assimilated to ADON. Management argues that the Circular 46/2003 applies to posts in general hospitals. St. Luke's Hospital is not a general hospital where there are a range of medical specialties including A&E, Surgery and ICU.
3. Management contends that the Union has relied on extracts from the Commission on Nursing Report to support its case and that these extracts were largely taken out of context.
4. When the CNM111 position was advertised in April, 2003 and October 2004 the Claimant did not apply for this vacancy.
5. The Claimant in this case received an upgrade from CNM1 to CNM 11 in 2005 and Management could not support a situation where she would be eligible for a further upgrade at this time. Concession of the claim would set a precedent in allowing nursing staff to effectively leapfrog into senior positions without promotion to the next logical grade in the nursing grading structure.
6. Management argues that the Union failed to recognise the differences that exist between the functions and responsibilities of the Night Sisters in this case and those of the ADON during the day. The ADON takes responsibility for bed management, H.R. functions, rostering, nursing practice reviews, clinical audits, performance management (disciplinary, grievance issues etc), general management, recruitment and appraisals. The Claimant in this case has none of these responsibilities.
6. There is no valid justification for this claim which, if conceded, would be cost increasing and in breach of the current national agreement.
DECISION:
The Union on behalf of the Appellant appealed the Rights Commissioner's Recommendation, which found against her claim to be regraded to Assistant Director of Nursing (ADON) level, on the basis that her responsibilities in the current role accord with those of the ADON grade. The Appellant is currently graded at Clinical Nurse Manager II (CNM II) level in the role of Night Sister rotating with another Night Sister also graded at CNM II level - the subject of a separate claim and appeal.
The Union submitted that St. Lukes’ Hospital had previously had a post at Night Superintendent level and that this grade was upgraded to ADON level following a Labour Relations Commission agreement in 2001. It maintains that the current grade of the Appellant is inconsistent with the Commission on Nursing Report 1998 which stated that CNM III grade is appropriate to a person in charge of a department.
The Union submitted details to the Court that the Hospital is classified as a Band 2 Hospital and accordingly ADON is the appropriate grade for the Nurse Management structure on night duty.
Management at the Hospital disputed the Union’s contentions, stating that the Hospital is not a general hospital and the activity levels at night do not warrant a post at either CNM III or ADON grades. Furthermore, it maintained that the duties of the Appellant are not similar to the duties required of the ADON grade. It submitted a letter dated 5th June 2007 from the Department of Health and Children advising the Union that St. Luke’s Hospital does not meet the criteria for Band 2 Hospitals.
Management explained the background to the claim, stating that in 2003 the Hospital reviewed its Night Duty requirements which resulted in the former Night Superintendent position being regraded from CNM II level to one with overall responsibility for nursing practice at all times, inclusive of both Day and Night Duty, graded at CNM III level. This new position was advertised in October 2004 and successfully filled. The Appellant did not apply for this new position and at the time the Union did not object to its grading at CNM III level. It was more than a year later before the Union raised a claim on behalf of the Appellant for a regrading of her position to ADON level.
At the time the claim was lodged Management raised the issue with HSE EA for its assessment. In a letter to Management dated 2nd February 2006, the HSE EA upheld its approach having regard to the current level of complexity and activity levels in the Hospital. Management had outlined that in order to meet its current operational requirements it did not require a dedicated Night Superintendent in the Hospital but instead required a structure of two CNM IIs on night duty with a CNM III on day duty available to deal with out-of-hours issues.
Having considered the extensive written and oral submissions made by both parties and having regard to the relevant parts of the Commission on Nursing Report of 1998 raised by both parties at the hearing of the appeal in support of their respective positions the Court finds that the responsibilities of the Appellant in her current role of Night Sister accord with her current grade at CNM II and that the Appellant’s appeal to be upgraded to ADON level is neither warranted nor justified having regard to the following: -
-The duties and responsibilities of the Appellant as Night Sister in the Hospital do not accord with those of ADON having regard to bed and other general management responsibilities that are essential to the role of ADON provided for in the Commission of Nursing Report 1998, the respective job descriptions submitted to the Court for the former position of Night Superintendent and ADON and the actual duties and responsibilities of the Appellant in her current role.
-The recent correspondence from the Department of Health and Children stipulating that the Hospital does not meet the criteria for Band 2 Hospitals.
-Management and Clinical support are readily available to the Appellant in her current role as Night Sister as and when required and in practice such support is infrequently required.
-The holder of the CNM III position in the Hospital performs the general Clinical Nurse Management duties and responsibilities at a senior level inclusive of Day and Night Duty.
-Department of Health and Children Circular 43/2003 dated 26th November 2003, confirms the level of duties and responsibilities for ADON and the requirements for day and night rotation arrangements neither of which obtains with respect to the Night Sister role of the Appellant.
-The Hospital is neither a general hospital nor any longer a national centre in its field the latter role having been removed from it following the establishment of regional centres in the speciality some years ago.
-The manner in which the Hospital organises its admissions and clinical treatment programmes is such that they take place very largely during the day.
-The Hospital has organised its operations, functions and roles to ensure that all primary levels of activity take place during the day and minimal activity levels occur at night which accords with the general operation and obligations of the Hospital.
The Court, accordingly, finds that the Appellant is correctly graded at CNM II level and, therefore, upholds the Recommendation of the Rights Commissioner and dismisses the appeal.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
19th_July, 2007______________________
JBDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jackie Byrne, Court Secretary.