LCR21895

A subsequent hearing took place on the 28th of January 2019.

Union's Arguments:

It is claimed that the Worker is incorrectly graded at Clinical Nurse Manager 3(CNM3) level in his role as Night Supervisor for the service. The Employer failed to pay the Worker the full night duty premium from the period June 2014 to March 2015.

Employer's Arguments:

No formal grievance has been raised with the Employer. The Employer has well established and agreed dispute resolution procedures that allows for the handling of all grievances at local level in the first instance, including this instant case.

The Employer contends that it is not fair or reasonable for the Worker to rely on an external third party prior to engaging in the company's own dispute resolution mechanisms.

DECISION:

This case is an appeal by a Worker of the decision of an Adjudication Officer. The issue in dispute between the parties is the Worker’s claim for regrading to ADON grade.

The Worker commenced work with the Employer in 1997 as a Staff nurse. In May 2014 the Worker applied for and was successful in obtaining a promotion to a CNM3 post. It is the Worker’s contention that up to 2012 the post he was placed in had been graded at Assistant Director of Nursing (ADON) level. The Worker in his submission to the Court set out a table indicating his responsibilities and those of the previous occupants. It is his contention that his duties are at least equal to if not more onerous than his predecessor. The Worker’s representative drew the Court’s attention to correspondence that had issued from the HSE in 2005 relating to the re-grading of Night Superintendents Learning Disability to ADON. The letter attaches the relevant circular and revised job description. The Union in its submission to the Court accepted that the Worker did not carry out and or have the opportunity to carry out a number of the tasks set out in the Job description. The Union in response to a question from the Court confirmed that another Worker carries out the same work on the opposite shift but they are not party to this claim. The Union could not identify any other post in the disability sector where the work currently being carried out by the Worker seeking the upgrade is carried out at Assistant Director of Nursing grade other than the person who had held the post up to 2012.

It is the Employer’s case that this claim has the potential to affect more than one worker and therefore is not properly before the Court. In relation to the person who held the post up until 2012 at ADON level this arrangement was red circled to that individual. No other similar post in the Disability Sector is graded at ADON level. The post that Complainant successfully applied for was advertised at CNM3 level as this was the appropriate grade for the work attaching to the post. The Employer disputes the fact that the Employer is carrying out the same work as the previous post holder or that his work is more onerous than the previous post holder. A review of the post was carried out in 2012 and CNM3 was identified as the appropriate grade for the duties attached to the post. The Worker, does not nor is he required to carry out most of the tasks set out in the job description attached to the 2005 letter which the Union are relying on.

The Court having read the submissions of both parties and listened carefully to the oral submissions made at the hearing are of the view that in all the circumstances of this case the appeal before the Court concerns issues related to rates of pay of a group or grade of workers which if conceded could potentially have broader implications beyond the Complainant himself. 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.

The second issue raised by the Worker relation to premium payment for .5 of an hour for the period June 2014 to March 2015. The Union on behalf of the Worker confirmed that the Worker had claimed and received time in lieu in respect of the relevant period.

On that basis the Worker’s appeal on this issue falls.

The Court upholds the Decision of the Adjudication Officer on both issues. The appeal fails.

Signed on behalf of the Labour Court



Louise O'Donnell
5th February 2019______________________
CHDeputy Chairman



NOTE

Enquiries concerning this Decision should be addressed to Carol Hennessy, Court Secretary.