ADJ-00013254

Complainant

Respondent

Anonymised Parties

A Clinical Nurse Manager

A Health Service Provider

Representatives

Noel Treanor Irish Nurses and Midwives Organisation

J.J. Tevlin Health Service Executive

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-00017451-002

15/02/2018

This dispute relates to a Clinical Nurse Manager 1 (CNM1) who is employed in a named Hospital. The worker is seeking that her position be regraded to that of Clinical Nurse Manager 2 (CNM2).

The worker is seeking that she be permanently regraded to the post of CNM2 in line with the provisions of Circular 17/2013 and that she should continue in this role with commensurate incremental adjustment.

The worker contends that she was promoted to CNM1 in 2004 on the Female Medical Unit.   She contends that in December 2008 she began acting as CNM2 in the Unit as the incumbent CNM2 was working to establish the Medical Assessment Unit.     The complainant acted up by default as she was the most senior nurse employed in Female Medical at the time.   She applied for an acting up allowance in 2010 but this was declined. Following the embargo on nursing recruitment in 2008 significant numbers of nurses were acting up with no remuneration and an agreement was reached in 2011 between the INMO and the HSE to regularise such posts.   This agreement came into effect in October 2013 in the form of Circular 17/2013.

Prior to the circular a decision was made to close the Female Medical Unit in 2012 and the complainant was offered a move to Male Medical.   The complainant submits s that she was assured in a telephone conversation with the Director of Nursing (DON) that there was a need for more than one CNM2 in Male Medical and she understood that she was going to Male Medical as acting CNM2.   The complainant sought regularisation under Circular 17/2013 and to be regularised according to the circular an applicant was required to have a minimum of two years acting on December 2012 and still be acting in the post.   The complainant had acted up as CNM2 in Female Medical until October 2012 and was advised that she was three months short of CNM2 on Female Medical and that as she was not sustaining a CNM2 post from 2012 onwards she did not meet the criteria.   The complainant submits that she agreed to move from Female Medical to Male Medical in September 2012 on the understanding that there was a requirement for an acting CNM2 grade and that she would sustain her acting CNM2 position.   Had that agreement been honoured she would have met the criteria for regularisation without difficulty.   Her understanding at the time was that she would be next to be regularised within the hospital as a similar commitment had been made and honoured previously to other colleagues.

The employer rejects the worker’s claim. The employer’s position is that the worker does not qualify for regrading to CNM2 under the terms of circular 17/2013.

The respondent agrees that the complainant was employed as a CNM1 on Female Medical and that she assumed the role of CNM2 there when the substantive CNM2 transferred to the Medical Assessment Unit MAU.   This CNM2 post was filled on a permanent basis in October 2012 when Ms. G transferred into it after her ward closed. The respondent submits that the Female Medical ward was moved upstairs, and that the complainant was given the option to move with Female Medical in her post as CNM1 or to move to Male Medical as CNM1. The complainant submits that she was offered the option to stay in Female Medical as CNM1 or to transfer into Male Medical as acting CNM2 and that she opted to transfer to Male Medical and has remained in that post to date. She claims to have been told by the Director of Nursing(DON) prior to her move that she would be appointed as acting CNM2 in Male Medical and that she would be next in line for regularisation.

The respondent submits that the claim is not valid and that the DON is very clear that she did not promise the complainant a CNM2 post on Male Medical.   The DON is also clear that given the facts the claimant would not satisfy the criteria for regularisation in accordance with the Circular 17/2013. The DON at the hearing of this matter stated that she would not have made such a promise to the complainant as she could not make such a commitment.

The respondent advised the hearing that the complainant had applied for regularisation under the circular and was advised that she did not meet the terms of the circular.    She appealed this process and this was concluded early in 2017.

The employer submits that the complainant did act up as CNM2 in Female Medical but not for the duration required under the Circular. The respondent added that it would have no hesitation in recommending her application for regularisation if she had met the criteria to satisfy the terms of Circular 17/2013. The DON told the hearing that she could not have promised the complainant a CNM2 post in Male Medical as there was no CNM2 vacancy in Male Medical. The DON added that there was already a CNM2 in situ in Male Medical when the complainant transferred to Male Medical and that she would have had to make a business case seeking an additional CNM2 post if she had wished to create an additional CNM2 post in Male Medical. She stated that that she did not have authority to offer the complainant such a post when no such post existed.

The DON also denies that she had promised the complainant that she would be the next to be regularised as regularisation can only happen where an applicant meets the terms of the Circular and the complainant in this case did not meet those requirements set out in the Circular.

The respondent adds that the DON was not in any position to make such promises to the complainant and that in any event appointments or upgrades cannot be made based on promises alone.

The worker in this case has sought an upgrading of her post from CNM1 to CNM2 as she submits that she was promised that she would be regularised in accordance with Circular 2017/13.     She also submits that her understanding when she moved to Male Medical was that she was going to a CNM2 post and not to a CNM1 post as the DON had told her she was going to a CNM2 post.     The DON denies that she made any such commitment or promise as she states she was not in a position to create an additional CNM2 post for the complainant or to regularise the complainant if she did not meet the terms of the circular.

I am satisfied from the evidence adduced here that the complainant did apply for regularisation and that the respondent concluded that she did not meet the requirements for regularisation under the Circular 17/2013.   I am also satisfied that there was already a CNM2 in situ in Male Medical when the complainant transferred to Male Medical.   The complainant submits that it was her understanding that she was going to Male Medical to take up an acting CNM2 post and not a CNM1 post however it is now clear that this was not the case. The respondent submits that there was no application made for a second CNM2 post in Male Medical and that the CNM2 post which existed was already occupied by someone else when the complainant moved to Male Medical. The respondent added that it would have no problem in awarding the complainant the upgrade to a CNM2 post if she met the terms of the Circular.

Having considered the written and verbal submissions of both parties, I am of the view that the complainant was not regularised to the post of CNM2 as she did not meet the requirements of the Circular 17/2013.

Accordingly, I do not recommend in favour of the complainant on this matter.    

Having considered the written and verbal submissions of both parties, I am of the view that the complainant was not regularised to the post of CNM2 as she did not meet the requirements of the Circular 17/2013.

Accordingly, I do not recommend in favour of the complainant on this matter.