FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEALTH SERVICE EXECUTIVE WEST - AND - A WORKER (REPRESENTED BY PSYCHIATRIC NURSES ASSOCIATION) DIVISION : Chairman: Mr McGee Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Appeal of The Rights Commissioner Recommendation R-057348-Ir-07/Eh
BACKGROUND:
2. This case concerns an appeal by the Health Service Executive (HSE) of Rights Commissioner Recommendation R-057348-Ir-07/Eh.
The dispute concerns a Psychiatric Nurse graded at CNM1 who sought an upgrade to CNM2 on the basis of his role in the Inisgile community based Unit which opened in December 2003 following the closure of St Joseph's Mental Hospital, Limerick The Union is claiming the permanent upgrade on the basis that the claimant reports to an Assistant Director of Nursing (ADON) and that the HSE had previously confirmed that the claimant would be upgraded.
Management's position is that the upgrade cannot occur as it would be at variance with Circular 125/2000 which sets down the criteria for such upgrades. It contends that concession of the Union's claim would have serious repercussive effect.
The dispute was referred to a Rights Commissioner for investigation. His Recommendation issued on 27th February, 2008 and found that the upgrade should be applied with immediate effect and that the worker should be paid an ex-gratia payment of €10,000 compensation on the basis of the length of time the issue has been on-going.
On the 7th April, 2008, the HSE appealed the Decision to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on 2nd July, 2008 in Limerick.
UNION'S ARGUMENTS
3 1 The Union's claim is fair and reasonable in the circumstances. The CNM1 reports to the ADON at least 50% of the time as the CNM3 is frequently absent on other duties.
2 The claimant's work replicates the work of the CNM2 on the opposite shift and the upgrade is warranted on the basis of like work.
3 The upgrade should apply to the post and not just to the post holder for the duration of his tenure.
3 It was agreed when the service changed from the hospital to the community based unit that in certain circumstances and reporting structures that an upgrade from CNM1 to CNM2 would occur. This has not occurred despite agreement reached with the HSE.
MANAGEMENT'S ARGUMENTS:
4 1 The CNM1 is not entitled to the upgrade as he reports directly to the CNM3 and not to the ADON. The Rights Commissioner accepted that the provisions of circular 125/2000 sets out the appropriate criteria and that this did not apply to the claimant.
2 The upgrade was accepted by management on the basis of the expectations at the time but on a personal to holder basis and not to the position itself. If the claimant was to leave/retire, the position would revert to CNM1.
3 The award of compensation is inappropriate as Management clearly abided by the appropriate provisions of the circular and are being penalised for doing so.
DECISION:
Bearing in mind the commitment given by the Health Service Executive in regard to the claimant's permanent upgrading to CNM2 and considering the circumstances outlined, the Court upholds the Recommendation of the Rights Commissioner and dismisses the appeal.
Signed on behalf of the Labour Court
Raymond McGee
23rd_July 2008______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.