ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00012690

Complaint(s):

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-00016762-001	11/01/2018

Date of Adjudication Hearing: 01/08/2018

Workplace Relations Commission Adjudication Officer: Shay Henry

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 13 of the Industrial Relations Acts 1969following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The complainant requalified as a Staff Nurse from the position of Care Assistant. On appointment he suffered a decrease in salary of approx. €4k. Subsequent to his appointment a circular issued which had it applied to him, would have meant he would not have incurred a loss. He suffered a salary differential of approx. €4k, relative to others with lesser experience appointed at a later time.

Summary of Complainant’s Case:

The complainant commenced work for the respondent as a Care Assistant in 1988. Subsequently, he was supported by the respondent to upgrade his qualifications and to train as a Staff Nurse. On successfully completing this training in 2006 he was assimilated to point two of the relevant Staff Nurse scale on approximately €31k p.a. On his previous substantive grade of Care Assistant he was on point 10 and on approximately €35k per annum. Subsequently, in 2008, HSE Circular 11/2008 included a provision that employees who had been sponsored to undergo the nursing degree programme should be assimilated on the nearest monetary point of the Staff Nurse scale, based on their existing salary. Having been appointed to the position of Staff Nurse shortly before this circular issued, the complainant was in an anomalous situation compared to those subsequently appointed under the scheme, and at an ongoing loss for several years.

Summary of Respondent’s Case:

The respondent acknowledges the anomaly of this case, resulting from the wording of the circular which did not address the complainant’s particular circumstances. The respondent acknowledges that the employee raised this anomaly on a number of occasions and was wronged by the refusal decisions then provided to him. It is accepted that there has been a long delay in bringing the matter to conclusion.

Findings and Conclusions:

Having reviewed the circumstances of the case I am satisfied that the complainant has been disadvantaged for several years due to the wording of the circular which would appear to put those appointed after him at an advantage, which I don’t accept was the intention. I note however, that due to the length of time that has passed since the issue was first raised, the complainant is now at the top of the Staff Nurse scale. Accordingly, I believe that compensation is the appropriate remedy. I am upholding the complaint and recommend in full and final settlement of this dispute that the claimant be paid €9,000 compensation for the distress arising from the unfairness of his treatment and the tardiness in addressing this issue.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that

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

I recommend that the respondent pay the complainant €9,000 as full and final compensation, which sum, not being an award of wages is not subject to tax. For the avoidance of doubt, I confirm that this recommendation is unique to the special circumstances of the Complainant’s case and cannot be quoted or used by either party in any other case.

Dated: 21/09/2018

Workplace Relations Commission Adjudication Officer: Shay Henry

Key Words:

Assimilation to a pay scale.