ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00006095

Complaint(s)/Dispute(s) 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-00008334-001	23/11/2016

Date of Adjudication Hearing: 07/02/2017

Workplace Relations Commission Adjudication Officer: Ray Flaherty

Location of Hearing: The Harbour Hotel

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 13 of the Industrial Relations Acts 1946 - 2015] 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 disputes.

Background:

The Complainant is a Clinical Nurse Manager at a hospital within a National Hospital Group. The Complainant is seeking regrading to Assistant Director of Nursing (ADON) with retrospection to 18 October 2016.

The Complainant was appointed to the role of Clinical Nurse Manager (CNM3) in a particular unit of one of the Respondent's hospitals in October 2006. In December 2009, following a request for a transfer, the Complainant took up the post of Clinical Nurse Manager (CNM3) on night duty.

Summary of Complainant’s Case:

In submission to the Hearing, the Complainant's Trade Union representative made the following arguments on her behalf:

HR Circular 001/2007, gives effect to Labour Court Recommendation 18595, which provided for the upgrading of CNMs, with out of hours responsibilities, subject to six criteria. It was submitted on the Complainant's behalf that she fulfils all of these criteria.

All of the Complainant's night duty nursing colleagues are remunerated at the level of Assistant Director of Nursing (ADON)

In submission, the Complainant's representative stated that the response from management to the claim has not been to dispute her entitlement under the terms of the circular, but to challenge it on the basis that HR Circular 001/2007 is not applicable in the hospital in which the Complainant works.

The Complainant contends that HR Circular 001/2007 makes no reference to the level of the hospital concerned. In addition, the Complainant challenges management contention that the hospital in question is merely a site of a larger hospital. The Complainant's representative provided evidence, by way of public, published material to support the Complainant's contention that the hospital in question is a stand-alone hospital.

The Complainant further contends that HR Circular 001/2007 anticipated such disputes by making reference to "site".

In conclusion, the Complainant states that she is requesting the implementation of HR Circular 001/2007, which gives effect to a 2007 Labour Court recommendation and which was accepted at national level. The Complainant is therefore seeking a recommendation that she be upgraded to ADON in accordance with HR Circular 001/2007 and to have this upgrading applied retrospectively to 18 October 2016.

Summary of Respondent’s Case:

In response to the Complainant's claim, the Respondent stated that the hospital in which the Complainant works is a level 2 hospital and therefore does not meet the criteria for a night ADON.

The Respondent further states that the Complainant's Trade Union were informed that the hospital was downgraded to a Level 2 hospital and is no longer stand-alone. Consequently, the Respondent contends that in night ADON position cannot be warranted.

The Respondent stated that the Complainant was advised that she would be offered the next available night ADON post that would become available in the Level 4 hospital. The Respondent stated that the Complainant advised she was not interested in this offer.

In conclusion, the Respondent stated that the hospital at which the Complainant works has not been a stand-alone single hospitals since 2004. Since then it has been under the governance of the Level 2 hospital and, therefore, the terms of HR Circular 001/2007 are not applicable in this case.

Findings and Conclusions:

Having carefully considered all of the evidence adduced, I am very conscious of the complexities involved in this case and, in particular, potential relativity claims that may arise from a decision on the matters presented for consideration.

Recommendation:

Section 13 of the Industrial Relations Acts, 1946 – 2015 requires that I make a recommendation in relation to the dispute.]

Following on from the constructive exchange of the respective positions and discussions which took place during the hearing, I have deliberated carefully on the positions of both parties. Having done so, my recommendation is that the Respondent should regrade the Complainant, on a personal to holder basis, to Assistant Director of Nursing (Non-Band 1), effective from 18 October 2016.

Dated: 09/05/2017

Workplace Relations Commission Adjudication Officer: Ray Flaherty

Key Words:

Regrading Positions