ADJ-00009234

Complainant

Respondent

Anonymised Parties

A Nurse

A Health Care Provider

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00012134-001

26/06/2017

The complainant is a Staff Nurse, who claims that she satisfied the criteria for payment of the Senior Staff Nurse grade since August 2003. She said that she applied for the grade but her application was never processed by the respondent at the time. She claims that she did move on to the grade in 2015 and received retrospective payment were made back to 1 July 2013 in line with the Haddington Road Agreement. She is now seeking retrospective payment from 1 July 2013 back to August 2003, the date of her original application.

The respondent said that it has carried out a thorough search of the complainant’s personnel file and other old documentation held on file of the then Director of Nursing in 2003/2004 and there is no evidence of an application by the complainant for the Senior Staff Nurse grade. Accordingly, there is no evidence to suggest that it made a mistake and therefore it cannot support a claim for retrospective payments for a 10-year period.

The following is a summary of the complainant’s evidence.

The complainant is a Staff Nurse, who claims she satisfied the criteria for payment at Senior Staff Nurse grade since August 2003. She said that she applied for that grade with the then Director of Nursing in 2003 but her application was never processed at the time. The complainant said that she had a lot happening in her personal life at the time, so she put it to the back of her mind and never actually checked to ensure that the application was processed and the upgrade came into effect.

She claims that it was not until 2015 when she had a review of her pay and pension entitlements from an independent financial advisor that she was made aware that she was not, in fact, in receipt of the Senior Staff Nurse rate of pay. She claims that she contacted her employer in July 2015, submitted a second application form for the upgrade and sought retrospective payment to August 2003.

The complainant claims that the respondent wrote to her on 27 July 2015 to say that her application dated 7 July 2015 was forwarded to the personnel department for processing. However, it had conducted a search of the complainant’s personnel file and that of other old documentation held on file from the then Director of Nursing and said nothing was found in relation to a 2003 application. The complainant’s union representative took up the case on behalf of the complainant and it suggested that the 2003 application might have been mislaid. It mentioned that this had happened in another case in 2007 where an agreement was reached between that employee and the respondent. The complainant said that the respondent reiterated that no application was found and maintained its position.

The complainant said that it wrote to the respondent in May 2016 and suggested that it would provide Management with a sworn affidavit confirming that she tendered a completed application form to the former Director of Nursing in August 2003, if that would help to resolve the matter. As there was no reply she wrote again in October 2016 and November 2016. However, the respondent told her that it was “not in a position to approve an application of the Senior Staff Nurse Grade retrospective to August 2003 as there is no evidence that [the complainant] made the application in 2003”.

The complainant wrote back in March 2017 attaching a signed sworn affidavit in which she confirms that she tendered her application for the Senior Staff Nurse grade in 2003. The complainant said that affidavits had been accepted as a satisfactory verification tool, to support other applications in her industry, in relation to confirming worldwide nursing service and it should be acceptable in this case. The dispute has not since been resolved.

The following is a summary of the respondent’s evidence.

The respondent accepts that the complainant has been employed with it in both a temporary and permanent capacity since 1981. It claims that the complainant made an application to be appointed as Senior Staff Nurse in 2015 and she was appointed as a Senior Staff Nurse and retrospective pay to 1 July 2013 was given in accordance with the terms of the Haddington Road Agreement.

The respondent said that on receipt of the complainant’s letter in June 2015 saying that her original application for the Senior Staff Nurse was filed in late 2003, the respondent decided to undertake a review of the complainant’s personnel file and that of other documentation emanating from the then Director of Nursing with a view to trying to gather evidence as to this previous ‘missing’ application. However, after an extensive search no application or any other evidence could be found to support the complainant’s contention.  

The respondent, in relation to the complainant’s suggestion, in May 2016, that she would provide Management with a sworn affidavit confirming that she tendered a completed application form to the former Director of Nursing in August 2003, said it was not content with that as sufficient evidence to help remedy the situation. It also points to an inconsistence of the complainant’s own evidence as to when this application was submitted. At one point the complainant references the application as of late 2003 and at another point she said 2004. The respondent said that sworn affidavits have not in the past been used to address this type of dispute. It went on to say that the use of sworn affidavits has been used in other situations in the nursing field, particularly when nurses have indicated, by affidavit, nursing experience in foreign countries. However, it claims, that in those cases, such facts can simply be verified by the respondent contacting the relevant hospitals named as places of work on a nurse’s application form. This is a totally different situation.

The respondent addressed the complainant’s point that she had not known that she was not a Senior Staff Nurse until a review of her financial matters in 2015. It said that the complainant was always recorded on its records as a Staff Nurse and the complainant was in receipt of a statement of service in December 2004 and superannuation statements in December 2007, 2008 and 2011 where it clearly states her grade as a Staff Nurse and she did not raise the matter with Management.

The respondent points to a certain circular in the area that the respondent and unions signed up to in relation to the Haddington Road Agreement where reference was made to clause 11 “cohort of nurses qualifying for the position of Senior Staff Nurse which were not processed in the preceding 4 years will be afforded the grade on 1 July 2013 …. There will be no retrospective application of the grade.

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

It was not in dispute between the parties that the complainant had exhausted the internal grievance procedures prior to the referral of the present dispute to the Workplace Relations Commission.

Having given careful consideration to the extensive and helpful oral and written submissions from both parties to this dispute I have made the following conclusions and recommendation.

I note the complainant is well respected by the respondent and that was very evident from the interactions of the parties at the hearing. The respondent was adamant that it was not a case that it did not believe the complainant, but rather that it has no evidence of the application or that an application was ever made and therefore cannot accede to the request for retrospective payment.

The complainant is adamant that the application for the Senior Staff Nurse was made back in 2003 and she recalls interactions with the then Director of Nursing when she requested updates on how the application was proceeding. The complainant said that she would not be pursuing this case unless she was definite that she submitted the application and she feels that her application must have been lost. She cites another nurse whose application was lost and where the respondent accepted that the application had been made and granted retrospective payment.

Having listened carefully to the parties I am satisfied that the onus is on the Staff Nurse to make an application for the position of Senior Staff Nurse and that the respondent requires that application to be processed before the formalities are made and completed. I accept that this is the custom and it is proper and appropriate.

I am satisfied that the complainant is pursuing this case in good faith and is utterly convinced that she made her application and with the passing of time presumed she was paid as a Senior Staff Nurse and simply forgot about it. I am satisfied from hearing from the respondent that it did its upmost to try to investigate this completely, in a timely fashion and had it found evidence of an application or mention of an application from in and around that time, it would have sought to address the complainant’s dispute in a reasonable manner as it had done in the other case referred to from 2007. However, it has not been able to locate anything on the complainant’s file or from its review of other historical documentation. The complainant unfortunately is not in a position to present any evidence of an application or communications with the respondent from that time to help support her case.

I have heard the arguments suggesting a sworn affidavit as a possible solution for this dispute, however, I am not convinced that will give the evidential support that the respondent needs to support making a significant decision, if not just in monitory terms in this case, but in relation to retrospection of payments generally.

I find that there is a lack of documentary evidence - a paper trail – to support the complainant’s position that an application was made through the proper channels. I note that the complainant seems to have a slightly different recall of dates that this application was made, this maybe is as a consequence of the passing of a considerable period of time –14/15 years – and admittedly it would very difficult to recall event with crystal clarity. On the basis of the foregoing, I cannot support the complainant’s application for retrospective payments in this instance.

Industrial Relations Act – application for next grade – no evidence.