FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE SOUTH (EAST) - AND - A WORKER (REPRESENTED BY INMO) DIVISION : Chairman: Mr Haugh Employer Member: Mr Murphy Worker Member: Mr McCarthy |
1. Appeal of Adjudication Officer's Recommendation.
BACKGROUND:
2. The Employer appealed the Recommendation of the Adjudication Officer to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 9th May 2017. The following is the Decision of the Court:
DECISION:
The Worker is employed as a Staff Nurse and is currently assigned by the Respondent to an acute medical ward in one of its facilities in the South East. It is accepted by all parties that this ward has at all material times been designated as a general ward. It caters for patients of all ages who require treatment for a range of medical conditions. The unit is not dedicated as a specialist care of the elderly ward although the Worker’s Union have in the past unsuccessfully sought to have the unit re-designated as such.
In 2014 the Worker, of his own initiative, sought sponsorship from the Respondent to undertake a postgraduate course in Gerentological Nursing at University College Cork. On successful completion of the course in 2015, the Worker applied to the Respondent for a specialist qualification allowance. His application was refused on the grounds that the ward he was (and continues to be) assigned to is a general acute medical ward and not a dedicated care of the elderly ward. Thereafter, the Worker referred a claim under section 13 of the Industrial Relations Act 1969 to the Workplace Relations Commission. The Adjudication Officer assigned to deal with the matter issued a Recommendation (ADJ-0000371) on 18 November 2016 in favour of the Worker and recommending payment of the qualification allowance to him retrospectively from 1 January 2016 “as a once-off in the unique situation and in the recognition that the ward is not a specialist location which can be quoted as precedent”.
The Respondent appealed that Recommendation to this Court.
Submissions
The Union submits that the decision to apply the specialist qualification allowance in accordance with Circular 112/99 is “within the gift” of the Respondent. It listed examples of nurses in other hospitals whom it claims are in receipt of a specialist qualification allowance although they are not working in wards that have been designated as specialist locations. The two examples identified by the Union were the Webb and Maguire Wards in Tallaght Hospital and Medical Ward 5 in University Hospital Waterford (UHW). The Union also emphasised the contribution the Worker has made by utilising his expertise in the care of the elderly to deliver training and development programmes in this area to his colleagues.
The Respondent submits – having regard to the Department of Health and Children Circular 112/99- that in order to qualify for receipt of the Specialist Qualification Allowance, the Worker is required to be actually employed in a designated care of the elderly unit and be carrying out the duties associated with caring for a cohort of elderly patients. The Respondent took issue with the examples cited in the Union’s submission, pointing out that Tallaght Hospital is a voluntary, “section 39”, hospital and not under the HSE’s remit. Management there voluntarily conceded payment of the specialist qualification allowance. The situation in UHW Medical Ward 5, according to the Respondent, differs from the situation in which the Worker is employed. All of the nurses employed in Medical Ward 5 at UHW are in receipt of a location allowance as they are all required to attend to the full complement of patients on that ward which is a 25-bed unit and only a fixed quota of which is assigned to care of the older person patients.
The Respondent referred the Court to the HSEA document,Summary of Guidelines on Agreements Concluded as Part of the Settlement Terms of the 1999 Nurses’ Dispute, Part 1 of which deals with location/qualification allowances. The following statement occurs at page 6 of the document: “It will be a matter for the employer to decide whether or not a nurse is engaged in a specialist area or on specialist duties.” Finally, the Respondent stressed that the Worker himself took the initiative to gain his postgraduate qualification; he was not requested by management to undertake the course.
Recommendation
The Court has carefully considered the parties’ written and oral submissions. It has also noted the relevant terms of the agreements entered into by both the nursing unions and the HSEA following the nurses’ dispute in 1999. On the basis of the foregoing, the Court is of the view that the Worker in this, although caring for elderly patients, among others, on a regular basis is doing so in the course of his work in a general medical ward. The Worker, however, is not actually employed in a designated care of the elderly unit and therefore does not meet the criteria to automatically qualify for a Specialist Qualification Allowance. The Court, therefore, recommends that the Recommendation of the Adjudication Officer at first instance be set aside.
The Court so recommends.
Signed on behalf of the Labour Court
Alan Haugh
19th May 2017______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.