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 ORGANISATION) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr Nash |
1. Appeal of a Rights Commissioner's Recommendation No: r-068923-ir-08/SR.
BACKGROUND:
2. This case concerns an appeal by the employer of Rights Commissioner's Recommendation r-068923-ir-08/SR.The issue concerns a member of the nursing staff employed at Mayo General Hospital and the retrospective application of the Dual Qualified Payscale to September 2001.
The Union's position is that the worker meets all the eligibility criteria for the payment of the Dual Qualified Scale on the basis of her additional qualifications and employment within the sector.
Management's position is that the Department of Health and Children Circular 112/1999 set out the qualifying criteria for the payment of the Dual Qualified Scale and to whom it was to be applied. Its position is that the worker is not entitled to be assigned onto the Dual Qualified Payscale .
The dispute was referred to a Rights Commissioner for investigation. His Recommendation issued on 5th March, 2009. In his Recommendation the Rights Commissioner found that the worker was suitably qualified for payment of the Dual Qualified Scheme as she was a registered nurse prior to 11th July, 1998 and met the other eligibility criteria. He recommended that the employee be placed on the Dual Qualified Scale from the date of the claim (14th October 2007).
On the 2nd April, 2009 the employer appealed the Rights Commissioner's Recommendation in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 15th June, 2010.
UNION'S ARGUMENTS:
31 The worker is entitled to be placed on the Dual Qualified Payscale on the basis of having been previously registered as a nurse and being employed in the Health Services at the appropriate time.
2The circular issued by the Department of Health and Children in relation to the qualification criteria for payment does not specify that those employed in private health care facilities cannot be assigned to the Dual Qualified Payscale.
MANAGEMENT'S ARGUMENTS:
4 1 The worker is not entitled to be assigned to the Dual Qualified payscale as she was not in the employment of the HSE at the relevant time. In addition, the Circular concerning qualification for payment of the scale specifically appliedto Health Boards, Public Voluntary Hospitals and Joint Hospital Board and to Each Mental Handicap and Specialist Agency. The circular did not apply to those who were employed in privately funded nursing homes.
DECISION:
The claim before the Court is an appeal by the HSE of a Rights Commissioner’s Recommendation, which found in favour of the Claimant and recommended that she should placed on the Dual- Qualified salary scale with effect from 14th October 2007.
The HSE appealed the Recommendation on the grounds that it was at variance with the Circular 112/1999 which set out the conditions for payment of the salary scale to Nursing Grades. The HSE held that the Circular provided that only those who were in employment of the HSE (formerly the Health Boards) at the time of its implementation could be eligible to retain their Dual-Qualified salary scale, on a personalised red-circle basis. It stated that Nurses appointed after 1st July 1998 may not be paid the Dual-Qualified salary scale regardless of their qualifications.
The HSE held that as the Claimant was not in the employment of the HSE on 1st October 1996, she was therefore not eligible for payment of the Dual-Qualified salary scale. She was at the relevant time in the employment of a private nursing home and consequently the Circular did not apply to her at the time.
Otherwise there was no dispute that the Claimant met the relevant criteria for payment of the salary scale.
The Union on behalf of the Claimant submitted that the fact that she was employed in a privately run facility at the time was of no relevance as she had been in continuous employment in the health service during the applicable period of time.
Having considered the oral and written submissions of both sides, the Court notes that the Claimant had previously been employed with the Western Health Board from March 1994 until August 1995 when she voluntarily left the service and proceeded to work in a privately run nursing home. She returned to work with the HSE in September 2001.
The Court notes that Circular 112/99 applied to“Each Health Board, Each Public Voluntary Hospital and Joint Hospital Board and to Each Mental Handicap and Specialist Agency”. It had no application to the privately run and privately funded nursing home where the Claimant was employed at the relevant time.
The Court is satisfied from the details supplied that the Claimant does not meet the full criteria for eligibility for payment of the Dual-Qualified salary scale as she was not appointed to work in a position for the HSE (formerly the Health Boards) on 1st October 1996 and consequently was not in receipt of a (Dual-Qualified) salary from the State at that time.
Accordingly, the Court upholds the HSE appeal and the Rights Commissioner’s Recommendation is overturned.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
5th July, 2010.______________________
AH.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.