FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE WEST - AND - A WORKER (REPRESENTED BY IRISH NURSES ORGAINISATION) DIVISION : Chairman: Mr McGee Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal Rights Commissioner's Recommendation R-045092-Ir-06/MH
BACKGROUND:
2. The recently-retired Claimant took up her position as midwifery tutor in University College Galway Hospital in 1984 and was promoted to principal midwifery tutor in 2001. This dispute concerns the application of a qualification allowance and a payment made to holders of this qualification allowance under the terms of an LRC-facilitated agreement reached between the HSE and the Unions in 2000. The Claimant submits that she should have been in receipt of this qualification allowance since 1984. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 26th March, 2008 the Rights Commissioner issued the following Recommendation:-
- “In arriving at my recommendation I am mindful of the fact that the claimants’ case rests solely on the premise that all midwifery tutors/principal midwifery tutors excluding herself were in receipt of the unit allowance in 1984 and by extension that all of those midwifery tutors/principal midwifery tutors in place at the date of her engagement in 1984 would have been beneficiaries of the LRC proposal of 4th of September 2000 given that they were still in the employment of the respondent.
- The letter of 4th of September 2000 from Mr R McGee (Director, Conciliation Service LRC) to Mr D Hughes (Coordinator, Nursing Alliance) states at paragraph 1 that a number but not all nursing staff above CNM2 in Maternity were in receipt of the qualification allowance and that such payments were not claimed, agreed or sanctioned at national level.
It would appear from the submissions made to me that all midwifery tutors/principal midwifery tutors with the exception of the claimant were in receipt of the allowance in 1984 and went on to receive the allowance arising from the LRC 2000 agreement. The respondent was extremely forthcoming in this regard and accepted, having attempted to research it’s own record, that it was not in a position to contradict the claimant.
In these circumstances it seems extremely unfair that a single person within the body of midwifery tutors would be treated differently particularly when it appears that she was in receipt of an allowance (ref £12 per week for Saturday work, which she did not work) during the period of her employment up to 1979. Having said that I am mindful of the assertion in Mr McGee’s letter of 4th of September 2000.
The earliest formal record of the claim is in the letter from Clare Treacy to Christy O’Hara of the 29th of March 2001 although the claimant asserts that she made numerous requests for the application of the allowance from 1984 onwards.
In my opinion the claimant was entitled to the respondents considered reasons as to why she was not entitled to the allowance in the circumstances she found herself in on appointment in 1984 viz. the only midwifery tutor/principle midwifery tutor in the country in 1984 not in receipt of the allowance. There was no attempt until now to verify or otherwise this particular part of the claimants submission despite comment on the case at the highest level of the HSEA. The claimant is vindicated in this regard – she was treated differently than her peers and colleagues.
Having come to that conclusion, there was no contractual obligation on the respondent to pay the allowance as Mr McGee’s letter clearly states. The moral obligation however is a different matter and in my opinion it was an onerous one, which the respondent failed to honour. Consequently I recommend payment of €15,000 (say fifteen thousand euro) net in full and final settlement of all matters arising from the complaint”.
On the 29th April, 2008, the Employer 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 22nd October, 2008, the earliest date suitable to the parties.- The letter of 4th of September 2000 from Mr R McGee (Director, Conciliation Service LRC) to Mr D Hughes (Coordinator, Nursing Alliance) states at paragraph 1 that a number but not all nursing staff above CNM2 in Maternity were in receipt of the qualification allowance and that such payments were not claimed, agreed or sanctioned at national level.
UNION'S ARGUMENTS
3. 1. The Court should red-circle the qualification allowance for the Claimant.
2. The Claimant should have been in receipt of this qualification allowance since 1984.
3.The Claimant has unsuccessfully applied for this qualification allowance on a continuous basis since 1984.
EMPLOYER'S ARGUMENTS:
4. 1. When the Claimant accepted the position of midwifery tutor in 1984, and the subsequent promotion to principal midwifery tutor in 1995, she did so on terms and conditions which did not include this qualification allowance.
2. Any claim for this qualification allowance should have been made when the Claimant commenced employment withUniversity College Galway Hospitalin 1984.
3. As the Claimanat has been unable to prove that she was ever in receipt of this qualification allowance she is not covered by the terms ofthe LRC-facilitated agreement reached between the HSE and the Unions in 2000.
DECISION:
Having considered all aspects of this dispute, the Court decides to dismiss the appeal and uphold the recommendation of the Rights Commissioner.
Signed on behalf of the Labour Court
Raymond McGee
2nd December, 2008______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jonathan McCabe, Court Secretary.