AD0911

FULL RECOMMENDATION

CD/08/792

APPEAL DECISIONNO.AD0911

(r-062788-ir-08 & r-062790-ir-08/SR)

INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969

PARTIES :

THE ADELAIDE & MEATH HOSPITAL

- AND -

TWO WORKERS
(REPRESENTED BY IRISH NURSES ORGANISATION)

DIVISION :

Chairman: Ms Jenkinson
Employer Member: Mr Murphy
Worker Member: Ms Ni Mhurchu

SUBJECT:
1. Appeal of Rights Commissioner's Recommendations r-062788-IR-08/SR & r-062790-IR-08 /SR.

BACKGROUND:

2. The Union's claim is for the regrading of two Workers from Clinical Nurse Manager III (CNM 3) to Assistant Director of Nursing (ADON). The Union claims that Labour Court Recommendation LCR18595 and HSE Circular 01/2007 entitle the Workers to be upgraded to ADON in line with 'Out-of-Hours Nurse Managers' and 'Site Managers with out-of-hours responsibilities'. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 23rd October, 2008 the Rights Commissioner issued the following Recommendation:-

- “The employer submits that the claimants do not meet all of the criteria of Circular 01/2007. The INO submits that the claimants meet the criteria as much as anyone else who was upgraded. It would be both unreasonable and unrealistic to insist that anyone would have to meet 100% of the criteria 100% of the time, and it is doubtful if anyone could in fact meet such a strict or absolutist condition.
  
  I have carefully considered all of the evidence and the submissions made and I have concluded the following. I am satisfied that the claimants do the same work/carry out the same responsibilities as their colleagues who were upgraded, sufficiently frequently to justify the claimants receiving the same rate of remuneration. There is considerable merit in the claim and it is upheld. I recommend that the claimants be upgraded to the level of Assistant Director of Nursing (ADON) with effect from 1st December 2006”.
On the 20th November, 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 23rd January, 2009, the earliest date suitable to the parties.

EMPLOYER'S ARGUMENTS:

3. 1. Circular 01/2007 is an Industrial Relations Agreement between the HSE-EA and the INO, arrived at under the direction of the Labour Court and has very specific applicability.

2. Circular 01/2007 applied to Out-of-Hours staff and not Night Duty staff such as the Workers.

3. Without prejudice to the fact that Circular 01/2007 does not apply to the Workers, they do not meet any of the six criteria of Circular 01/2007.

UNION'S ARGUMENTS

4. 1. The Workers have the same duties and responsibilities as their colleagues who were upgraded.

2.On the grounds of equity and equal pay for equal work the Workers are entitled to be treated equally with their colleagues who were upgraded.

3.The Workers are being disadvantaged by a unique nurse management system which is a legacy of the amalgamation of the formerly three seperate hospitals in 1998.

DECISION:

The case before the Court concerns an appeal by the management of the Hospital against a Rights Commissioner’s Recommendation which found in favour of a claim by the Union on behalf of the Claimants, to upgrade them from Clinical Nurse Manager III to the level of Assistant Director of Nursing, with effect from 1st December 2006.

Hospital management appealed the Recommendation on the basis that the two claimants did not meet the criteria set down in Circular 1/2007, as agreed between the HSE EA and the INO.

The Union disputed the contention that the claimants did not meet the criteria and stated that they were carrying out identical duties to the Out-of-Hours Nurse Managers, who had been upgraded to the same level as Night Superintendents (i.e. Assistant Director of Nursing level), in line with Circular 1/2007.

Having carefully considered the submissions of both parties and having examined all aspects of the positions and the reporting relationships of the two claimantsvis-a-visthe criteria set down in Circular 1/2007, the Court does not concur with the view that they have the same level of responsibility as Night Superintendents.

Consequently, the Court upholds the Hospital management’s appeal and overturns the Rights Commissioner’s Recommendation.

The Court so decides.

Signed on behalf of the Labour Court

Caroline Jenkinson
9th February, 2009______________________
JMcCDeputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Jonathan McCabe, Court Secretary.