Complainant

Respondent

Anonymised Parties

Staff Nurse

Health Care Provider

Representatives

 Psychiatric Nurses Association

 H.R. Manager

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-00015207-001

23/10/2017

The complainant has been employed by the respondent as a staff nurse since 2001. The issue in dispute relates to a claim by the complainant to be recognised in the management role which she contends that she has effectively been performing for a number of years.

The complainant has been carrying out the responsibilities of the role since February 2012. The previous post holder was graded as a manager.

The complainant is listed in official documentation as a “person in charge.”

The complainant performs a number of functions that are proper to management.

The complainant has responsibilities that are the function of management.

The previous post holder retired under the Voluntary Early Retirement Scheme. Under the rules of that scheme posts vacated cannot be backfilled.

The complainant requested permanent night duty and in taking up the vacated position in 2012 she achieved same.

The complainant receives acting-up allowance only for the weeks that the Nurse Manager is absent and does not meet the terms of the Regularisation of Acting Posts circular.

No approval has been received for the post that the complainant is claiming and, if approval was given, the post would have to be advertised and applications sought.

The complainant qualified as a nurse in 2000 and joined the respondent organisation in 2001.   The respondent is a Section 38 provider of residential services to persons with intellectual disabilities.   In 2008 the complainant moved to continuous night duty as a staff nurse and from 2009 covered the Clinical Nurse Manager (CNM) position during annual leave / sick leave in an acting-up capacity.

In February 2012 the night-duty CNM2 retired under the Voluntary Early Retirement (VER) scheme.   Under the rules of that scheme, posts vacated could not be back-filled and corresponding funding reduction was applied. The complainant agreed to move to the vacated shift which had fixed nights and was permanent. The complainant accepted that she would not be regraded to CNM2 at that stage but understood that the situation would be reviewed in the future. She continued to receive the acting-up allowance to cover the leave / absence of the CNM2 on the opposite shift.

In her role the complainant carries out many of the duties and responsibilities that were performed by the CNM2 and that are associated with management. In addition, the complainant is listed in management positions in some official forms and her annual review described her as the “Person in Charge on Night Duty.”

Over the period the complainant raised the issue regarding her grade with members of management.   In early 2017 her union wrote to the Director of Nursing requesting the regularisation of the complainant into the CNM2 position on several occasions without response. The respondent was verbally informed that the respondent would not accede to this request. In June the complainant met with the respondent’s HR Manager and was informed that there was no CNM2 position. In September a meeting took place between the parties at which the complainant had union representation but no progress was made and the issue was referred to the WRC.

The respondent’s position is that the existing CNM2 post went when the person in that position availed of the VER scheme in 2012. Any new CNM2 post requires permission and funding and that does not exist at the moment. Furthermore, given the declining number of residents which has reduced from 60 in 2011 to the present 35, there is unlikely to be a requirement for a CNM2 post at night but consideration could be given to a CNM1 post. If such a post was approved, then it would have to be advertised and go to competition. The respondent also stated that other CNM2 positions had been advertised within the organisation but that the complainant had not applied for these.   The complainant does not agree that the CNM1 post should apply but does accept that if approval was received for a management position then there would have to be a competition.   The complainant also believes that she should be compensated retrospectively for the management role that she has performed over the period in question. The respondent rejects this claim.

I understand that when the complainant accepted the position that she did not believe that she would remain in that position for the amount of time that has now elapsed.   At the same time the respondent has not been in breach of the various agreements that have been reached at national level. It is, however, unfortunate that correspondence on behalf of the complainant went unanswered.

It appears from the documentation that the complainant has been assigned roles and functions that are proper to a management grade.   This would appear to indicate that there is an existing need for a manager in that position. I therefore recommend that the respondent proceed without delay to make a business case for the appointment of a Nurse Manager at a level commensurate with the responsibilities of the position. In this respect regard should be given to the grade in which the respondent’s opposite number in the facility operates and the practices that exist in this regard in similar sized residential units. I further recommend that if the application is approved then the filling of the vacancy be done in the normal manner – i.e. that the post is advertised and filled through competition. In all the circumstances I cannot recommend a retrospective payment.