Complainant

Respondent

Anonymised Parties

A staff nurse

A psychiatric hospital

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-00010824-001

12/04/2017

The complainant is a staff nurse in an independent hospital funded by the Health Services Executive (HSE). The terms and conditions appropriate to her grade are governed by HSE regulations which are communicated to the funded hospitals and agencies by circular letter from the Office of the National Director of Human Resources of the HSE.

This dispute centres on changes to terms and conditions set out in HSE Circular 17/2013 which confirmed the changes arising from discussions during 2013 between the HSE and the public service trade unions that resulted in the Public Service Agreement 2013, otherwise known as the “Haddington Road Agreement.” The specific change which gave rise to this dispute relates to the ending of the payment of acting-up allowances where cover is provided for less than three months. Section 8 of the Circular states:

“With effect from the 1^st October 2013 there will be no payment for any temporary appointment that covers annual leave, sick leave, special or other leave, or to allow for the completion of a recruitment process, or the appointment from a panel following a retirement or resignation. Staff will be expected to take on the role and responsibility of the higher post for such periods, provided this period does not exceed 3 months.”    

From 2007, the complainant provided cover for holidays and short absences of clinical nurse specialists (CNS) in a specific unit of the hospital. In September 2016, she discovered that she had not received the acting-up allowance for 18 weeks during which she provided cover for the CNS between November 2009 and August 2016. It appears that she received payment for one week in September 2015 and then for one week in October 2016, after she raised the non-payment with the Director of Nursing. Apart from these two weeks, she was not paid for providing cover for the CNS.

On November 30^th 2016, in response to enquiries about the non-payment from 2009, the Human Resources and Operations Manager of the hospital wrote to the union to confirm that, with effect from October 2013, in accordance with section 8 of Circular 17/2013, acting-up payments no longer apply to short-term cover.

In the union’s view, two issues arise. The first is that the hospital management did not consult with them with regard to the application of the changes in Circular 17/2013. Secondly, the changes apply from October 2013, but the complainant was not paid the allowance from November 2009.

In January 2017, the complainant accepted a contract for a temporary role as a Clinical Nurse Manager II (CNMII). Her salary is at the first point on the CNMII scale. The union argues that, if HSE circulars are to apply in the hospital, then in accordance with HSE Circular 08/2016, the complainant should be on the sixth point of the scale.

Representatives for the hospital said that while there were no direct discussions with the PNA about section 8 of Circular 17/2013, the changes apply across all HSE funded institutions and must be applied in this hospital without exception. The hospital is aligned with HSE consolidated pay scales and must therefore comply with the Circulars governing allowances.

With regard to the acting-up allowances paid in September 2015 and October 2016, the hospital representatives said that these were paid in error and no further payments have been processed since October 2016. The representatives were not aware that, from 2009, the complainant provided cover for the CNS without any payment.

While the issue of the point on the scale of the CNMII was not the subject of this referral to the WRC, the hospital representatives agreed that it was an issue for consideration.

Non-payment of the Acting-up Allowance

It is clear that the terms of HSE Circular 17/13 must apply without exception in this hospital.   However, it is also apparent that the complainant lost out on acting-up allowances that were due before the effective date of the Circular on October 1^st 2013.

At the hearing, the hospital agreed to review the hours for which the complainant provided cover from November 2009 to September 30^th 2013 and to reimburse her for the allowance not paid during this time. There will be no payment for cover from October 1^st 2013.

Temporary Assignment to a Promotional Role

HSE HR Circular 08/2016 follows from Labour Court Recommendation 21104 which addressed the point on a scale to which a person is to be assigned when they are appointed on a temporary basis to a higher grade post. The Court recommended no change to an earlier circular, Circular 10/71, which provides that, on appointment to a temporary higher-grade post, the person should move across on the nearest point on the scale plus one.

As the terms and conditions of employees in the hospital are governed by HSE regulations, the terms of this Circular must also apply to the complainant.

There was constructive engagement at the hearing and a clear indication that the complainant’s grievances can be resolved. Circular 17/2013 ends the practice of payment for temporary acting-up cover from October 1^st 2013. I recommend that the hospital investigate the hours for which the complainant provided cover from November 2009 to September 30^th 2013 and reimburse her for the hours for which she was not paid the acting-up allowance.

I also recommend that both parties accept the application of Circular 08/2016 and the terms of Labour Court Recommendation 21104 in the manner in which it provides for assimilation to the appropriate point on the CNMII scale.

HSE Circulars, acting-up allowances