Representatives

Tony Fitzpatrick Irish Nurses and Midwives Organisation

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-00006550-001

19/08/2016

The claimant is employed by the respondent as an Advanced Nurse Practitioner in their Emergency Dept.

Arising from the recommendations of the Commission on Nursing in 1998 , a clinical career pathway was established for nursing grades     involving the progression from Registered Nurse to Clinical Nurse Specialist (CNM2) and Advanced Nurse Practitioner – the highest operating clinical grade. The progression to ANP is overseen by the NMBI – the Nurse and Midwifery Board of Ireland.

The establishment of an ANP post in a work location requires a 2fold pathway. Details of the steps involved were presented by the INMO. In the first instance, the respondent applies for approval of a job description in site preparation following which the nurse applies for accreditation as an ANP. The accreditation requires the person to have demonstrated clinical competency , to work independently and to have completed a Masters relevant to the   area of clinical practise.

It was submitted that the claimant had completed the entire process and had operated as such since the 15^th.Oct.2012 .She was aggrieved that she had only been paid the ANP scale since the 31^st.Jan 2014.The claimant had been paid the CNM1 grade from October 2012 rather than the ANP scale – she had met the criteria for NMBI to practise in Oct. 2012.The employer had failed to confirm the approval of funding for the post until the end of 2013 and consequently the claimant was only registered as an ANP from the 31^st.Jan.2014.It was submitted that the delay in registration arose entirely from administrative failures on the part of the respondent. Despite not paying the claimant correctly, the respondent expected the claimant to work and operate as an ANP from the date she completed her course in Oct. 2012.

The ED Consultant to whom the claimant reported had confirmed by correspondence dated the 28^th.Jan. 2015 that the claimant had worked independently as an ANP in the hospital Group from the 15^th.Oct.2012.The Asst.Director of Nursing had confirmed that the claimant had been qualified as an ANP and working independently since Oct.2012.It was submitted that the respondent had benefited from the claimant’s expert practise and the only matter outstanding was payment for that period.

The union vehemently disputed the respondent’s contention that candidate ANPs are paid at their substantive grade and contended that the rate of pay was established by the Labour Court in LCR19230.It was submitted that the claimant was entitled to be paid at CNM3 grade for the duration of her assignment as candidate ANP from Sept. 2011 to Oct.2012 and the ANP salary retrospective to her commencement date on the 15^th.Oct.2012.

The respondent set out a chronology of the claimant’s progression from her commencement as an ANP candidate in October 2011.The claimant took up training in a major Dublin hospital in 2011 and “thereafter continued to work as a Candidate ANP pending registration”.It was submitted that throughout this period the claimant was paid at her substantive grade.It was submitted that the respondent had sought and received confirmation that individuals were to be paid at their substantive grade for “ the duration of training up to and until registration”.Reference was made to other individuals who were pursuing equivalent claims but with whom a settlement had been reached.

The respondent set out a chronology of the exchanges with the union on the claimant’s grievance – it was asserted that at the most recent meeting with the INMO the Director of Nursing who was present confirmed that it would be “unconscionable to accept someone working as an ANP autonomously and not registered to do so”.

It was submitted that accreditation and registration of ANPs has a statutory base pursuant to S.I.3 of 2010 and S.I.I 689 of 2010.It was contended that it was not legally possible to practise as an ANP unless the individual has received an offer of employment in respect of the ANP post. The moratorium had resulted in a substantial delay in obtaining approval for ANP posts .A step by step account of the respondents application for approval for the post was set out. The NMBI had advised that the tranisition from the Council to the Bord had caused considerable delays and were adamant that until registered, the individual is a candidate ANP up to the point of registration. It was submitted that legally , the NMBI nor the respondent cannot place an individual into an ANP post unless the post is approved.

Since the hearing , the parties made further submissions regarding the candidate ANP – the union invoked the provisions of the “Management Proposals to INMO/SIPTU in relation to Nurse/Midwifery Recruitment and Retention initiatives “ Feb. 2017 – which pitched the candidate ANP rate at CNM3 Grade. It was submitted that this had always been in place and was reaffirmed in this document – it was acknowledged that there had been slippage by the HSE in its application. The respondent – while acknowledging the reference to candidate ANPs in the document – submitted that the CNM3 rate was not always in place and submitted that concession of same in the most recent negotiations supported the management contention that the candidate ANP was always at the individual’s substantive grade.

I have reviewed the evidence presented at the hearing and noted the respective position of the parties.

With respect to the claim in relation to the claimant’s assignment as a Candidate ANP – I accept the contention by the union that the 2017 Proposals have established the going rate of CNM 3 into the future. However, it is acknowledged that there was slippage and while some candidate ANP’s were graded at CNM3 others were not.In the circumstances I must conclude that what is being sought by the union is a finding on a collective matter of widespread application to candidate ANPs who were not remunerated at CNM 3 level.Accordingly , I must find that I do not have jurisdiction to issue such a finding and recommend that the matter be pursued through existing channels for collective claims.

With respect to the dispute concerning the date of application of the ANP rate , I cannot ignore the confirmation by the ED consultant and the Asst.Director of Nursing that the claimant worked as an ANP from the 15^th.Oct.2012.While I acknowledge the compelling arguments put forward by the respondent with respect to the fact that the claimant was not registered to practise in that capacity, this was a matter outside of the claimant’s control and the local managers have accepted that the claimant was practising as an ANP during the disputed period , all be it without registration.In the circumstances, I recommend that the claimant be deemed to have been acting up during that period – that she be assimilated onto the nearest point plus 1 on the ANP scale with effect from the 15^th.October 2012 and that she progress up the scale in accordance with the current provisions for acting , to the time of her consolidation on the scale from the 31^st.January 2014.I recommend that the retrospection due be paid within 42 days of the date of this recommendation.