ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00011066

Parties:

	Complainant	Respondent
Anonymised Parties	A Nurse	HSE

Representatives

Maura Hickey Irish Nurses and Midwives Organisation

Complaint(s):

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-00014737-001	03/10/2017

Date of Adjudication Hearing: 09/05/2018

Workplace Relations Commission Adjudication Officer: Shay Henry

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015and/or Section 13 of the Industrial Relations Acts 1969]following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The complainant was carrying out functions at a more senior level than her substantive grade for a number of years and is seeking to have the matter regularised.

Summary of Complainant’s Case:

The complainant is employed as an Infection Control Nurse covering community services area. She has been in her present role for 16 years and was on the top point of the CNM11 scale and was paid an additional allowance of €2,791 in recognition of a dual responsibility recognising her role in the local university hospital on a cross programme basis. She was in receipt of this allowance from 1 Dec 2006 until 30 Sept 2013 when she was placed on the CNM111 scale. In 2011 the complainant sought an upgrading of her post to Assistant Director of Nursing grade (ADON) in line with several colleagues across the country. Under the Haddington Road Agreement a Circular 17/2013 issued allowing anyone who had been acting in a post for 2 years on 31 Dec 2012 to be regularised in that post. The complainant completed an application for regularisation which was supported by the General Manager. The application was approved but at a grade lower – CNM111. The complainant signed a contract but under protest as she was aware of several comparators doing the identical job getting paid at ADON level. The regularisation process has ended in the HSE and no further process exists to resolve the matter.

The complainant is seeking parity with her counterpart in the local hospital with whom she has equal responsibilities. The complainant is seeking payment of the differential back to March 2013 and; to be placed on the top point of the ADON scale and; to be compensated for the manner in which she has been treated and the tardiness in addressing her claim.

Summary of Respondent’s Case:

The respondent has made a number of attempts to resolve this issue under circular17/2013. The matter was referred through the internal process and the outcome was a decision to regrade to CN111 rather than the ADON grade. The position of local management was that the complainant was acting at the ADON grade in terms of carrying out the responsibilities appropriate to that grade. If the complainant had been in receipt of an allowance equivalent to the ADON grade then she would have been appointed permanently to ADON grade. There is no process within the HSE to deal with job evaluations comprehending these grades.

Findings and Conclusions:

There is a question over whether or not the complainant’s specific case should have been dealt with under Circular 17/23. However, the respondent’s management unit responsible for administering the circular chose to apply it to her. There was nothing in the circular which provided for regularisation of a claim to a grade below that being claimed. Furthermore, it appears incongruous that someone, who had not been in receipt of the correct allowance appropriate to her responsibilities, should be treated in a lesser manner than those who were actually in receipt of the allowance and had received some benefit. I note that some other cases without documentation were also processed under that circular.

In my view it is anomalous that a procedure was introduced to address the needs of staff in acting roles (who were in receipt of payment appropriate to those roles) but not for those carrying out similar work but not getting the allowance. Similarly, no process has been put in place to address outstanding issues where individuals are graded lower than the accepted level of responsibility. I note that a job evaluation scheme exists for administrative staff to deal with these issues.

It is an important consideration in this case that the respondent accepts that the level of responsibility of the complainant is at ADON level.

Recommendation:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I recommend that the respondent place the complainant on the Assistant Director of Nursing Scale on a permanent basis with effect from March 2013. For the avoidance of doubt, I confirm that this recommendation is unique to the special circumstances of the Complainant’s case and cannot be quoted or used by either party in any other case.

Dated: 9th August 2018

Workplace Relations Commission Adjudication Officer: Shay Henry

Key Words:

Consolidation of existing responsibilities to permanent grade