FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE DUBLIN MID LEINSTER - AND - A WORKER (REPRESENTED BY IRISH NURSES AND MIDWIVES ORGANISATION) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal of Recommendation of a Rights Commissioner R-100938-Ir-10/RG / R-120856-Ir-12/RG.
BACKGROUND:
2. This case concerns an appeal by the employer of Rights Commissioner's Recommendation r-100938-ir-10/RG and r-120856-ir-12/RG.
The issue concerns a Registered General Nurse (RGN) who has recently retired but had previously acted up to a CNM2 post since 2006. The worker is seeking the appropriate salary level of the CNM2 which should have been applied and subsequently reflected in the retirement lump sum and pension payments going forward.
The matter was referred to a Rights Commissioner for investigation. Her Recommendation issued on the 23rd July 2012 and recommended that, in the unique circumstances of the case, she be placed on the CNM2 scale at a salary level of €53,360 for the sole purpose of calculating her retirement lump sum and her pension entitlements.
On the 13th August 2012, 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 the 28th November, 2011.
MANAGEMENT'S ARGUMENT:
3. 1The Health Service Executive is bound by the provisions of the Moratorium on Recruitment and Promotion within the Public Service, the Public Service Agreement 2010-2014 and the provisions of the Financial Emergency Measures in the (2009) Public Interest (No. 2) Act 2009. In such circumstances the employer is unable to apply the Rights Commissioner's Recommendation as it represents a significant cost to the employer and is therefore not permissible at this time.
UNION'S ARGUMENT:
4. 1. This is a unique situation which applies to the worker. She acted up in the CNM2 post from 2006 until she retired in October 2012. A national agreement has been concluded on long term acting-up which is soon to be implemented by may not apply to the worker as she is no longer in employment. It is totally unreasonable that the worker has acted up for 6 years without the appropriate rate of pay and will subsequently incur a reduction in her retirement lump sum and pension payments going forward.
DECISION:
The Court has carefully considered the submissions of both parties to this dispute.
The Court notes that the applicant was paid the acting allowance in accordance with the provisions of the relevant Circulars. However the Court is aware that it was never intended that staff would be employed in an acting capacity for in excess of six years. Where such arrangements have come before the Court it has recommended the regularisation of staff in long term acting positions.
The Court notes the difficult financial circumstances facing the HSE and the Exchequer and the exceptional measures agreed between the Government and the Trade Unions to address them. In this context the Court notes that discussions are taking place between the Nursing Unions and Health Service Employers with a view to concluding an agreement regarding the regularisation of nursing staff in long term acting positions.
It is clear that the Nurse in this case has been adversely affected by the delay in concluding those talks. The Court takes the view that, as she is not culpable in any way in causing this delay and as she has acted to bring a complaint before the Rights Commissioner in good time before she retired, she should not be disadvantaged by the time it has taken to conclude the agreement on this matter.
Accordingly, in the very particular circumstances of this case and on the basis that she had progressed a complaint through procedures and received a Recommendation from the Rights Commissioner before her retirement date, the Court recommends that the terms of any agreement regarding the regularisation of nurses in long term acting positions when finalised be applied to her in the manner recommended by the Rights Commissioner.
The Rights Commissioner’s Recommendation is varied accordingly.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
19th December, 2012.______________________
AH.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.