Complainant

Respondent

Anonymised Parties

An employee

A Government Agency

Representatives

Irish Nurses and Midwifery Organisation

Employee Relations 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-00015259-001

24/10/2017

The Complainant is a nursing professional employed by the Respondent. The Complainant successfully applied for a promotional position and her acceptance of same was conditional on the position being re-graded to a higher grade than the one outlined in the job advertisement.

In 2004 the Complainant was seconded from her employing hospital to a position in infection control for a period of two years, she retained her “grade” with the specialist qualification allowance for this period.

On the completion of her two-year secondment the Complainant was asked to apply for a permanent position within the area of her secondment, she agreed to this. The position was regraded to a higher level (CNM 3) with the retention of the specialist qualification allowance.

In September 2014, the Complainant was asked to consider a transfer to vacant Infection Prevention and Control position on a temporary basis due to the infection prevention and control issues which were emerging from the Ebola virus outbreak in West Africa, which was declared a public health emergency of international concern.

From the middle of September 2014 until 15th October 2014 the Complainant worked between two jobs, providing infection prevention and control support. During this period, she remained on her existing grade (CNM 3).

The position of IPC Nurse Manager was advertised in March 2015 at ADON non-band 1 level. As this was a senior nursing post operating at national level it should have been graded as ADON band 1 level. The banding concept relates to activity levels, budgets etc. of individual hospitals, therefore the non-band 1 classification for a national role was not appropriate.

The ADON non-band 1 grade is higher than CNM 3 grade, it would entail the Complainant taking a drop in salary due to the loss of the specialist qualification allowance.

Following a successful interview on 8th April 2015 the Complainant was offered the position, however, she informed the Recruitment section that her acceptance was subject to her grading issue being addressed. The Recruitment section did not progress the recruitment process due to the issues the Complainant had raised regarding her grading.

Attempts where then made at local management level to resolve the issue. These efforts culminated in a meeting on 20th April 2017, present at this meeting were the Complainant, her INMO representative and the Head of Employee Relations.

On 30th August 2017, the Head of Employee Relations wrote to the INMO representative claiming that the Complainant was being paid the rate for the job, this is factually incorrect, the Complainant’s total salary is marginally higher than the top point of an ADON non-band 1 position, she is doing the work of an ADON but paid the salary of a CNM 3. This adversely impacts on her ability to discharge duties that would normally be associated with this role e.g. to sit on interview panels.

In the same letter rejecting the claim the Head of Employee Relations also stated that if the Complainant was not satisfied with her current position she could return to her previous position which remained her substantive post. The Complainant’s representative objects to this statement as her previous position no longer exists as she has been replaced by two nurses at CNM 2 level.

Since then the Respondent appears to have accepted that the non-band 1 application is inappropriate as they are now seeking to appoint two new posts at ADON band 1 level.

INMO Arguments.

In good faith, the Complainant assisted management at a time of crisis in terms of the outbreak of the Ebola virus which was declared a public health emergency of international concern.

No reasonable person would expect a staff member to accept a higher promotional post and suffer financial loss, as would be the case if the Complainant officially took the ADON non-band 1 post.

The Respondent is now seeking to appoint two new ADON’s at band 1 level yet they have failed to correct the Complainant’s grading. The Complainant is entitled to be treated with equity and fairness.

In August 2014, the position of infection control nurse became vacant following the resignation of the post holder.

The Complainant was released from her role as a CNM 3 in her home department and took up the new position on a temporary basis on her existing terms and conditions.

The substantive position was graded at Assistant Director of Nursing level Band II. Authorisation was sought to fill the post on a permanent basis. Authorisation to fill the post at the recognised grade was granted and the task was sent to the national recruitment service in August 2014.

The position was advertised in mid-February 2015. The advertisement was clear in terms of salary offered and there was no ambiguity regarding the fact that the position would be paid at ADON Band II level.

The Complainant was interviewed for the position on 4th April 2015.

The Complainant accepted the job offer on the proviso that the starting salary be changed from that of ADON Band II to ADON Band I or that she be allowed to retain the allowance which she was paid as part of her substantive role. There is a significant difference in salary scale between Band I and Band II ADON grades (€52,059 - €62,534 v €54,870 - €68,853).

The Complainant raised the issue through her trade union. The Respondent met with the trade union and clarified the position by letter dated 30th August 2017.

Management position.

Recruitment of new and promotional positions within the Respondent organisation are dealt with by a national recruitment service provider. All new and promotional posts must be recruited through an open and transparent recruitment process which includes an application and interview process.

The recruitment process is supported by all unions and staff associations including the INMO.

The Complainant was offered the new position at ADON Band II level. This was the position which was advertised and which the Complainant competed successfully for.

The only mechanism for the Complainant to be appointed to an ADON Band I position through an open and transparent competition.

If the INMO wish to pursue a claim that the role should be pitched at a higher salary level this should be done through national negotiations in line with current industrial relations practice.

It is the Respondent’s position that for this role the salary scale was clearly specified from the start and all the candidates who applied for the position including the Complainant were aware of this.

Should the Respondent change the salary offered for the role it would be acting outside of its own recruitment licence and would be creating a dangerous precedent.

The Complainant is free to return to her substantive post if she so wishes where she will be entitled to hold on to her current terms and conditions of employment.

It would create a dangerous precedent whereby it would be ok to advertise one thing and offer another. In all the circumstances this would be grossly unfair as a process and should not be countenanced.

Management have clearly pointed out that all new and promotional posts must be recruited through an open and transparent recruitment process which includes an application and interview process. It is very difficult to disagree with such a process and it would also appear that the Complainant’s trade union supports such a process.

In the Respondent’s submission, they have stated that if the Complainant’s trade union wish to pursue a claim that the role should be pitched at a higher level this should be done through national negotiations in line with current industrial relations practice.

I cannot overlook the fact that the Complainant was very much aware of the terms and conditions pertaining to the position, this was very clear in the job advertisement that was posted.

Job grades and salary scales pertaining to grades are normally established via some method of job evaluation and should never be based on opinion, there must be measurement involved.

Having considered the arguments presented at hearing and from reading the submissions presented by both parties I must agree with the Respondent. To do otherwise could, as pointed out by the Respondent, create a dangerous precedent and would be unfair.

For these reasons, I feel that the complaint fails.

For the reasons outlined above the complaint fails.