ADJUDICATION OFFICER RECOMMENDATION
Adjudication Decision Reference: ADJ-00005500
Dispute for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act 1969 | CA-00007662-001 | 17th October 2016 |
Date of Adjudication Hearing: 11th January 2017
Workplace Relations Commission Adjudication Officer: Seán Reilly
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act 2015 and Section 13 of the Industrial Relations Act 1969 and following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
Background:
SIPTU were in dispute with the Respondent in relation to the payment of an ‘On Call Allowance’ and in particular the retrospective payment of same to the Complainant.
Summary of Trade Union Case:
SIPTU said they are seeking to have the appropriate on call allowance applied to the Complainant for providing an out of hours support service to the Respondent in a named area.
SIPTU said the Complainant has been employed by the Respondent from August 1977 and he is currently employed as an Assistant Director of Nursing (ADON).
SIPTU said the Complainant has been providing an on call service to the Respondent for the past 5 years. This service provides back up and support to Nurse Managers at CNM3 and CNM2 levels and also from nursing staff when critical incidents occur. The Respondent have not been providing payment of the nationally agreed allowance of €6,625 per annum with a 1 hours time-off-in-lieu for each night covered for this service .
SIPTU said it is accepted that this service is paid for in 12 other named counties, including ones adjacent to the one the Complainant works in. SIPTU said that when the Complainant became aware that this service was being paid for in other counties he lodged his claim for the payment.
The Complainant contacted the named Acting Area Director of Nursing (AADON) by email, setting out his position and the discrepancy that exists around the payment of the on call allowance -- and this correspondence was forwarded to the named HOS, Mental Health, CHO2. SIPTU said that a protocol for on call support was devised and recommended for acceptance by the AADON. An email was issued to the HOS from the AADON on 8th December 2016, referring to a discussion where approval was indicated and that payment would be made by Christmas 2016.
SIPTU said that the Complainant understood that the matter was resolved in line with the arrangement put forward by the AADON, namely:
Red circled to the current Area Director of Nursing and 4 ADON’s.
It was accepted that this service has been in operation for at least 5 to 7 years without the present employees being paid.
A retrospective payment of 2 years from 5th September 2014 to apply
The AADON was confident that this arrangement would bring closure to this application and would ensure that the appropriate management structures and clinical governance was in place of the named area Mental Health Services. It would also continue to support the provision of a high level of service quality as well as effective management of risk.
SIPTU said that however a further email was received from the Manager again deferring the payment.
SIPTU said that the Respondent have enjoyed the benefits of this on call service without payment and they have once again reneged on resolving the matter at the last minute. SIPTU said that the Respondent have accepted that the allowance in paid in other counties of the CHO2 Area.
SIPTU said they were seeking a favourable recommendation that will ensure that the Complainant will be paid the rate of the job with full retrospection i.e. 5 years.
Witness No. 1. A Witness gave evidence. The Witness said that he is CNM2 in the same area as the Complainant. The Witness gave evidence ADON’s in the Area, including the Complainant, being ‘called in’ on a regular basis as part of an on call service in the Area.
Summary of Respondent’s Position:
The Respondent said that the claim relates to a dispute concerning the non-payment of an on-call allowance to the Complainant as a ADON on the named Area. The Respondent said that this matter was first brought to their attention by email on 5th September 2016. Upon receipt of the email from the AADON the Head of Mental Health engaged with nurse management on establishing precedent for such a payment and how it would benefit the Service.
The Respondent said that at present there is one DON and 4 ADON’s employed across the Area and the Complainant is one of the ADON’s.
The Respondent said that in 2008, a proposal to address the “Out of Hours Cover for ADON’s in (a named area) Mental Health and older People Services was put forward by the Industrial Relations Forum whereby:
An ADON be placed “on-call” to provide nursing management cover for outside of normal working hours.
Each ADON and DON be rostered for one week block every 8 weeks
The ‘on-call’ period to be 5pm to 9am during which the ADON to deal with any nursing emergency, visit the hospital or sector and maintain a record of such activities.
A payment of €5,000 p.a. to be made for such duties
The number of CBN2’s on night duty to be reduced to take account of the availability of an ADON
The CNM2 on night duty to be paid an allowance equivalent to CNM2 (see Appendix 2)
The Respondent said that following this adjudication a rota system for out of hours cover was developed in a named Area Mental Health and Older People Services and extended whereby each ADON taking part in the rota would be paid a Standby Payment per fortnight.
The Respondent said a Proposal was submitted by the Mental Health Services in the Area,, which was approved by Senior Mental Health Management whereby payment of the On-Call Allowance to the Area DON and the 4 ADON’s that would be made from the date contained in the proposal, i.e. 31st October 2016 and this would ensure clinical governance following reconfiguration of the Mental Health Services in line with the Croke Park Agreement.
The Respondent said that as a gesture of goodwill they approved a back-dated payment to the date of the initial correspondence, i.e. 5th September 2016.
The Respondent said that they are fully supportive of the establishment of an on-call service across the Mental Health Service in the named Area that enhances the service being provided to service users as well as ensuring the appropriate management structure and clinical governance is in place. They said that until such time as the proposal was brought to management’s attention on 5th September 2016. Management were not aware of a formal arrangement, encompassing the DON and the 4 ADON’s being in place to provide an on-call service. The Respondent said that to date they have been unable to source a document stating the provision of an on-call service prior to the one being established with effect from 31st October 2016.
The Respondent said that as this is a cost increasing claim, approval was sought from the Head of Service Mental Health Services, SHO Area 2. That approval has been secured and Finance are awaiting direction to process the payment backdated to 5th September 2016.
Based on the foregoing the Respondent sought that their position be upheld and the claim be rejected.
The Respondent said that previously the on-call service was provided by the DON. However they accepted that it was not possible for one person to provide an on-call service as they would need time off for rest period, sick leave, holidays, personal matters etc etc. However they said they were in effect being asked to pay to 5 persons (the DON and the 4 ADON’s) for coverage provided by one person. In further discussion the Respondent the Respondent accepted that the DON had been absent form work for the previous year and the on-call coverage was provided solely by the 4 ADON’s.
Findings and Recommendation:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation setting forth my opinion on the merits of the dispute.
I have carefully considered the evidence and the submissions made and I have concluded as follows.
I note that it is accepted by both parties that the ‘On Call Allowance’ should and will apply to the Complainant (and his 3 colleagues) going forward and accordingly the only remaining issue in dispute is the question of the level of retrospection that will be applied.
I accept that the Complainant was providing part of the on-call cover in the Area in the last 5 years and that he is entitled to recognition for that on-call service provided. However I do not accept that he provided a full time on-call service throughout that 5 year period and I do not accept that it would be reasonable to expect the Respondent Employer to pay 4 people 5 years retrospection.
In recommend that as a full and final settlement of the matter that the Respondent pay to the Complainant the On-Call Allowance with effect from 1st September 2014.
I so recommend.
Seán Reilly, Adjudication Officer:
Dated: 2nd March 2017