Complainant

Respondent

Anonymised Parties

A Worker

An Employer

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-00015731-001

11/11/2017

1.     Pay Grade.

The complainant is a registered nurse in the field of intellectual disability having qualified in 1997. He has been employed in a nursing capacity in the respondent hospital since that time having commenced his pre- nursing training on campus in 1992. From 2007, the employer engaged the complainant to ‘act up’ to the post of night superintendent of the service on an intermittent basis. From 2012 until 2014 he acted up to this role on a more consistent basis due to retirement of both previous incumbents. The previous incumbent of the vacancy to which he was subsequently appointed was paid on the ADoN Scale band 1.

When the vacancy was advertised on a permanent basis that the complainant applied and was appointed. This appointment was at CNM 3 scale. In recognition of his previous acting service the complainant was placed on the 6th point of the CNM3 scale.

In his role the complainant assumes full night Line management responsibilities for the service during the night. The scope of his responsibilities is even greater than the previous incumbent in the post, despite being paid on a lower grade. His job description includes having sole responsibility for all grades, in all locations, through the area for the period of his shift. He is responsible for the clinical management of all services for troubleshooting any issues that arise and dealing with out-of-hours personnel issues. He advises staff in relation to all issues that may arise in any of the locations. These may be clinical issues, staff issues, or administrative issues. He reports to two directors of care and support for the service whilst the previous incumbent only reported to a single director of nursing. In line with the policy of de-congregation, the service has expanded considerably since the complainant took on his role, as have the statutory responsibilities of Managers vis a vis HIQA compliance, policy compliance and client safeguarding practices. The grade CNM 3 was created further to the commission on nursing report in 2001. This grade was envisaged as having clinical responsibilities for an overall department or area for example theatres or an emergency department. It was never envisaged as applying to a post with a sole reporting responsibility for a service such as the respondent. The respondent’s sister organisation providing psychiatric services in Dublin advertised the post of night manager at ADON level in 2016. In addition, the Labour Court recommended a regrading of two INMO members in 2006 from CNM2 to ADON in a similar but smaller service in Sligo. The INMO lodged the claim for regrading but this was never resolved by the employer and the issue was referred to the WRC for adjudication.

2.       Legal Fees

 In 2015 the complainant became the subject of a serious historical allegation by a client.  He was placed on administrative leave at the time and the matter was reported to the Gardaí. Accordingly, and as advised by the then General Manager they complainant retained a legal representation in the subsequent internal investigation costing him €750. Separately and later  on the same client made a number of allegations against other staff members. These were also reported to the Gardaí.  In this instance the respondent provided legal representation to those employees. The complainant had not been offered this facility by the employer at first instance and so he sought reimbursement of his costs. This was rejected by the employer hence the referral of the matter to the WRC.

3.Night Shift.

In his role as night superintendent the complainant works a 12-hour shift and is paid. However, for the period June 2014 to March 2015 he received the premium rates which accrued for night duty for only 11.5 hours each night. This was subsequently corrected and he currently receive the accurate payment however there was no back pay applied for, for the period discussed.  The complainant requested same to be paid.  This was rejected.

The matter before the WRC concerns a claim by the complainant against his employer under Section 13 of the Industrial Relations Act, 1969. T000he claim was filed on 11th of November 2017. The respondent refutes the claim in its entirety.

1.       Pay Grade.

The complainant states that he has a trade dispute in relation to his pay grade. The complainant alleges that he should be remunerated at ADON  level instead of CNM 3.

 The respondent submits that this is a missed placed claim as this matter cannot be an individual issue rather it is a collective one as it would affect an entire grade and should be processed through the normal mechanism for collective claims.  Section 13 of the Industrial Relations Act, 1969 precludes and adjudication officer investigating in a dispute connected with the rates of pay of a body of workers.

" subject to the provisions of this section where a trade dispute other than a dispute connected with rates of pay..... exists or is apprehended and involves workers within the meaning of part VI of the principal act a party to the dispute may repair it to a rights commissioner. "

The requirements as regards the rule were discussed in Shannon Airport Authority -V- A Worker 2013 AD 1389.

" claims which by their very nature and character have broader implications are inappropriate for the rights commissioner service and are dealt with by the Labour Court. The 1969 act provided a stipulation that issues concerning pay hours or times of work or annual holidays are issues which can have broader implications and are consequently not issues appropriate to the rights commissioner service. In all circumstances of this case the court is satisfied that the appeal before the Court concerns issues related to rates of pay and concerns a body of workers acting in concert. It is a claim which if conceded could potentially have broader implications for. On that basis the Court is of the view that it is precluded by the terms of section 14 subsection 2 of the Industrial Relations Act, 1969 from hearing the case.

2. Legal Fees.

In March 2015 there was an allegation made about the complainant by a service user. It resulted in the complainant been placed, initially on paid suspension from duty and subsequently, administrative duties whilst the allegations were investigated.  The allegation was not upheld against the complainant.  As is required by legislation and in line with HIQA requirements and the respondent’s own policy on managing allegations of abuse against staff, the respondent was obliged to notify the relevant statutory agencies including on Garda síochána. The complainant sought external independent legal advice. The complainant claims the cost in relation to the legal advice was €780.

During the course of the investigation, allegations were made by the same service user against a significant number of other staff members. All of which were reported to the relevant agencies. Under these circumstances a corporate decision was made to make legal support available to the staff involved with associated costs covered. The legal support provided was selected by the respondent, with one legal advisor arranged to meet with all relevant parties individually.  All costs associated were overseen in advance and as agreed at all times by the respondent.

On 18th March, 2016 the respondent wrote to the complainant's representative in relation to a request that was made on behalf of the complainant at a meeting on 7th January 2016 to have this legal fees paid for.  The respondent advised that the service would not be reimbursing the complainant his legal fees. On 5th May, 2016 the complainant responded again seeking payment of his legal fees. The complainant wrote again to the Director of services on 3rd July 2016 seeking payment of the legal fees. On 1st September 2016 the complainant was advised “the service engaged with the INMO regarding this matter and it was the complainant’s decision to obtain separate legal advice in response to the allegation made against him.  This was not pre-approved by the service and position remains that the service will not be reimbursed in the complainant.”

3. Night Premium.

The complainant alleges that he was incorrectly paid for his night duty shifts. The complainant alleges that he is at a loss of .5 hours premium per night.  It is accepted that he is receiving the basic rate .5 of an hour but that the issue outstanding is the premium .5 of an hour.

Historically, staff were rostered for 12 hours for which they received payment for working 11.5 hours and would take 30 minute unpaid break. HIQA 's first inspection of the Campus was made in May, 2014 and they raised an immediate issue with management in respect of a house been left unattended at night and supervised by the adjoining houses. Furthermore, they directed management to immediately increase the number of Staff working at night. As staff could no longer leave the house at night they recorded for time in lieu. This resulted in an accumulation of time in lieu having to be facilitated which was disrupted for the service. From April 2015 start working on campus have been paid for the full 12 hour shift.

Where an employee was unable to take a break, it had been agreed that payment will be made for 11.5 hours and then they would receive 30 minutes off as time in lieu at a flat rate unless they indicated they want to be paid on the time sheet.

On 23rd July,2014 there was an email sent to payroll advising that the complainant was to be paid 12 hours and not 11.5.  Payroll advised all CNM 3’s  of this.

On 28th July,2014 the complainant was advised that normal night duty was 11.5 hours and if working 12 hours, to mark it off on timesheets. The complainant responded to say "I will mark same on - off duty".

 On 9th February,2015 the complainant contacted payroll to state that he was paid 12-hour nights for week pay date 8th February 2015 and should only be paid 11.5 hours for these nights and ask for overpayment to be taken back. This was facilitated by payroll and he was given back time in lieu. The complainant has subsequently availed of that time in lieu. The complainant is now claiming that he worked 12 hour shift and that the 30 minutes should have been paid at the premium rate.

The complainant initially queried payment of 30 minute premium with payroll in April 2016. In respect of the following periods which were 1 to 2 years prior to his query.

July 5th 2014 - August 7th 2014

August 21st 2014 - September 11th 2014

November 6th 2014 -February 5th 2015

February 12th 2015 - April 2nd 2015.

It is clear on the timesheet submitted that they did not indicate that the complainant was requesting the time to be paid. As such payroll would have applied the 11.5 hours paid and 30 minutes unpaid as was the historical practice which was later taken as time in lieu by the complainant.

Payroll responded to advise that he was paid time in line with the information submitted on the timesheet for the specified period.  Therefore, his payment was correct. The 12-hour roster submitted at the time as per the timesheet submitted consisted of 11.5 hours and 30 minutes unpaid break.

Prior to the periods queried, the complainant was submitted for and paid premium for 11.5 hour nights which was never, queried.

On 10th August,2016 the payroll officer contacted the local HR office of the north east service in relation to the complainant's query. It was confirmed in this email that night shifts have been paid correctly for this period and no other queries from any other staff members have been received for the period in question. It was further stated that if the 11.5 hour shift indicated on those timesheet should read 12 hour shift this would apply to all other staff who worked night duty on the Campus during 2014/2015 period in question.  The complainant contacted the respondent on 26th August 2016 in relation to his query and stated “the problem lies in that the hours omitted or incorrect and should have been submitted as 12 hours and not 11.5 as they are with everyone else who works in a similar position on nights”

The complainant met with a respond and representatives on 1st September, 2016 to try and resolve the matter however no resolution was reached.

1.       Pay Grade.

Section 13 (2) Industrial Relations Act 1969,

" subject to the provisions of this section where a trade dispute other than a dispute connected with rates of pay..... exists or is apprehended and involves workers within the meaning of part VI of the principal act a party to the dispute may repair it to a rights commissioner. "

The requirements as regards the rule were discussed in Shannon Airport Authority -V- A Worker 2013 AD 1389.

" claims which by their very nature and character have broader implications are inappropriate for the rights commissioner service and are dealt with by the Labour Court. The 1969 act provided a stipulation that issues concerning pay hours or times of work or annual holidays are issues which can have broader implications and are consequently not issues appropriate to the rights commissioner service. In all circumstances of this case the court is satisfied that the appeal before the Court concerns issues related to rates of pay and concerns a body of workers acting in concert. It is a claim which if conceded could potentially have broader implications for others. On that basis the Court is of the view that it is precluded by the terms of section 13 (2) of the Industrial Relations Act, 1969 from hearing the case.

Pursuant to Section 13 (2)  of the Industrial Relations Act, 1969 I am satisfied that this issue relates to a body of workers  and any recommendation I make may have implications beyond the complainant himself.  Therefore, I am precluded from hearing the matter.

2. Legal Fees.

I recommend that the respondent should pay to the complainant the sum of € 780.00 in respect of his legal fees.

3. Night shift.

 I am making no recommendation in relation to this part of the complainant’s dispute on the basis that the complainant in his letter dated the 26th August 2016 accepted that the timesheets submitted were incorrect and should have been submitted as 12 hours and not 11.5. The complainant has availed of the hours in lieu and it is for that reason that I am making no recommendation.