Complainant

Respondent

Anonymised Parties

Staff Nurse

Health Service Provider

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-00019487-001

29/05/2018

       Introduction

1.1.               This claim is brought by the INMO under Section 13 of the Industrial Relations Act on behalf of the claimant .

1.2.               The claimant claims that;

a)    She should be paid her specialist qualification allowance retrospectively to 2014, which amounts to €7394.67.

b)    That her employer failed to inform her of her entitlement to the qualification in the first instant and then refused to pay her the full retrospective qualification allowance.

c)    The claimant be paid €3000 in compensation for failure of the Employer to inform and apply the specialist qualification allowance in accordance with national agreed allowances.

d)    Table A showing arrears of Specialist Allowances due

2.                  Background

2.1.               The claimant qualified with a Bachelor of Nursing Science, Honours in 2009. In 2013, the claimant completed a Higher Diploma in Midwifery achieving Honours.   The claimant is committed to lifelong learning and professional learning and has undertaken training in Children First, Compass E-Learning Education Programme, Nutritional Screening a “Must” for Healthcare, Stoma Care, Global Wound Academy as well as completing required mandatory training.

2.2.               The claimant has worked on Surgical/ Gynaecology ward in SUH since October 2014.

2.3.               In April 2017 Sligo University Hospital reviewed all allowances for Nursing and Midwifery staff.

2.4.               Following this review the CNM2 on the ward advised the claimant that she was entitled to the qualification allowance as the claimant uses her Midwifery qualification when nursing some of the women on the ward.

2.5.               On 26th April the claimant   emailed Human Resources (HR). Appendix 1.

2.6.               On 27th April at 8.48am HR   emailed Ms D requesting that she revert to the claimant at her earliest convenience. Appendix 2.

2.7.               On 7th May 2017, the claimant emailed Ms D with a scanned copy of her contract. Appendix 3.

2.8.               On 8th May 2017, Ms D responded to the claimant at 8.25 via email. Appendix 4.

2.9.               On 8th May 2017 at 10.29am the claimant emailed Ms D informing that her CNM2 had completed the form for the qualification allowance and queried the timeframe. Appendix 5.

2.10.            On 8th May 2017 Ms.D responded to the claimant’s email at 10.50am advising that it can vary depending on confirmation from Nursing Managers and processing by HR. Appendix 6.

2.11.            On 11th September 2017, the claimant   emailed ,the HR manager seeking payment of the qualification allowance and advised that she had submitted completed HR 102 Form. Appendix 7a and Appendix 7b. The claimant did not receive a response from HR.

2.12.            On 13th September 2017 Ms AG ERP emailed Ms J H and Ms TG seeking to establish if they would approve the claimant for the qualification allowance. Appendix

2.13.            On 29th September Ms T G emailed HR approving the claimant for the midwifery qualification. Appendix 9.

2.14.            On 6th October 2017, the claimant   emailed the HR manager for a second time and again received no reply.  Appendix 10.

2.15.            On 12th December the claimant eventually received a response from the HR manager, some 11 weeks later. This email apologised for an error which had occurred in regard to the set-up of the claimant’s qualification allowance. Appendix 11.

2.16.            By 19th January  2018 the claimant had not received any payment of the qualification allowance and emailed Ms M D at 12.20pm advising of this. Appendix 12.

2.17.            Ms D responded via email at 12.54pm advising that she had not received any update from HR with regards to the approved qualification allowance. Appendix 13.

2.18.            The claimant sought advice from Ms MD as to who was the best person for her to contact in relation to the matter.   Appendix 14.

2.19.            Ms MD responded advising the claimant to contact the HR manager or Ms AG.   Appendix 15.

2.20.            Following receipt of Ms MD’s email, the clalimant phoned the   HR Manager     who said she would contact the claimant on Friday 26th January 2018. The claimant did not receive a call back from the HR manager.

2.21.            The claimant emailed HR manager again on 31st January 2018 seeking to establish if the arrears owed was being addressed. Appendix 16. Again, the claimant received no response.

2.22.            The claimant sought representation from the INMO at this stage as her issue was not being addressed.

2.23.            The INMO sought a meeting with HR as evidenced in emails, dated 7th March and 9th March 2018. Appendices 17 and 18.

2.24.            The Hr Manager responded on 9th March giving availability of 27th March 2018. Appendix 19.

2.25.            On 27th March 2018 the INMO and the clalimant met with the HR manager where she informed us that an audit of all allowances had been concluded and that she had sent the claimant’s case to CERS who had informed her that the retrospective allowance was only payable back to the time that the application had been made. This was not accepted by the employer. Appendix 20.

2.26.            The INMO emailed the Hr manager on 22nd May seeking confirmation that the qualification allowance retrospection had been paid and advised that there is no requirement for the claimant to apply for the allowance, it should have been applied to her automatically. Appendix 21.

2.27.            On 11th June 2018, the clailmant   emailed Ms D seeking a breakdown of arrears in her payslip of 13th April 2018. Appendix 22a.

2.28.            Ms D responded at 14.18 confirming dates to be from 27th April 2017 to

20th November 2017. Appendix 22b.

3.                         Context of Claim

3.1            In 1999, the Nurses and Midwives took industrial action and went on strike for 9 days. Allowances, of which the specialist allowance is one formed part of the resolution. Appendix 23. The specialist qualification is payable to registered nurses holding a midwifery qualification which the claimant uses on a daily basis when looking after pregnant women up to 18 weeks gestation who attend for assessment, review and admission.

4.                 Unions Arguments

4.1             Management failed to inform the claimant that she was entitled to the qualification allowance when she commenced working in Surgical Gynae ward in October 2014.   The claimant was informed by a CNM2 of her entitlement to the allowance under 112/29 HSE Circular which was signed by Mr B then PrincipaCl Officer, Nursing Policy Division. Mr BC states that he is conveying sanction for the application of the revised schedule of allowances. The employer failed to apply this Circular to the claimant and in doing so denied the claimant payment that she was and is entitled to inclusive of retrospective payment.   This is unfair and unreasonable.

4.2            Management will argue that the claimant should have applied for the allowance, however, how could the claimant know she was entitled to the qualification allowance when her employer failed to inform her of same. A memorandum dated 12th October 2012 Appendix 24 states that “Arrangements should be made through the Finance Directorate to action payment of allowance listed as (ii) and (iii). It makes no specific mention to employees having to apply for these allowances. It is worth noting that on Appendix 7b HR Form 102 was signed by CNM2 and the DON with an effective date of October 2014. Management had accepted and conceded that the claimant was entitled to the qualification allowance.

4.3            Management have failed Ms Mc Hale as an employee and on this basis, Ms Mc Hale should receive compensation of €3000 for this failure.

5.                 Conclusion

5.1            The claimant applies the specialist qualification in her daily work in the Gynaecology/ Surgical ward and management have conceded this to be the case.   The claimant is entitled to have full retrospection of this allowance back to the date of commencement in this ward as her employer failed to inform her of her entitlement and then failed to apply the allowance to the claimant which is unreasonable and unfair.

We respectively seek a recommendation in our favour.

1.0 Complaint

The claimant submitted application on 27/4/2017, for the retrospective application of the payment of Specialist Qualification Allowance from 19/10/2014.

Approval to the payment of Specialist Qualification Allowance was provided from date application was made (in accordance to the respondent’s   Policy and National Payroll Financial Regulations). The claimant is seeking payment of the allowance for retrospective period 19/10/2014 to 26/4/2017.

2.0 Background of the Case

2.1 The claimant was contracted to work as Staff Nurse at the respondent’s Hospital on 26/8/2013 and at that time was contractually reviewed as not fulfilling the requirements to have the payment of Specialist Qualification Allowance applied.

2.2 On 27/4/2017, the claimant submitted application for the retrospective application of the payment of Specialist Qualification Allowance from 19/10/2014 (Appendix 1).

2.3 HR Form was received by the Hospital HR Dept in May 2017 and returned to Line Manager and General Management Office highlighting;

(i) the retrospective period being applied, significantly predating the date of application.

(ii) that Specialist Qualification Allowance is paid when person applies giving verification of holding qualification and working in the appropriate area (Appendix 2- confirmation by Employee Relations).

(iii) The respondent’s National Payroll Financial Regulations 3.8.6 stipulates that HR Form for Changes to Working Terms & Conditions must be submitted to HR, at a minimum, 4 weeks from date of change and section 3.8.8 confirms that forms which are not consistent with HSE policy shall not be processed. (Appendix 3)

2.5 Specialist Qualification Allowance was subsequently approved and applied by the Hospital from 27/4/2017 (date of application) and a total gross payment of €1,665.84 issued to the claimant in December 2018 for arrears 27/4/2017 to 30/11/2017.

3.0 Hospital Position

3.1 The claimant was recruited and contracted to work as Staff Nurse at the Hospital on 26/8/2013 and at that time was reviewed as not fulfilling the requirements to have the payment of Specialist Qualification Allowance applied.

Any amendment after this date was required to be submitted on appropriate HR Form to person’s Line Manager so that approvals/payroll update could be procedurally applied in line with respondent’s Policy.

It was the claimant ’s responsibility to submit application, to her Line Manager, in a timely fashion for the payment of associated Specialist Qualification Allowance.

Forms which are not consistent with the respondent’s HR/Payroll Regulations cannot be approved/ paid and accordingly, as required, approval and payment issued from the date from which the claimant applied for the application of this allowance.

4.0 Conclusion

4.1 In light of the above, I request the Adjudicator to reject the claimant’s complaint.

The WRC were advised by the INMO on the 30th.Oct. 2018 that the HR manager had reviewed the claimant’s file and was prepared to offer full retrospection of the allowance - the INMO stated in the email that the only matter now outstanding was the compensation (€3,000) sought for the respondent’s failures to the claimant. I fully acknowledge that the matter of compensation was raised at the hearing and in the claimant’s submission – however I note that the claimant’s complaint form refers only to “ full retrospection back to October 2014” and makes no reference to a claim for compensation. Given that the respondent was invited to attend a hearing under Section 13 of the Act on the basis of what was contained in the complaint form   , I find it would be improper to issue a recommendation on an issue about which the respondent received no prior notification. Accordingly I am declining to make any recommendation on the matter of retrospection.