ADJ-00015876

Complainant

Respondent

Anonymised Parties

A Nurse

A Health Service Provider

Representatives

David Miskell, INMO

J.J. Tevlin, H.S.E.

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-00020587-001

17/07/2018

This case is about a nurse who worked in an acting up capacity as Emergency Department nurse lead in a hospital. She is seeking payment of salary in respect of the scale higher than she holds for that period. Or in the alternative she is seeking the payment of an allowance for that period, an allowance that her predecessor received.

The Complainant was working as a nurse and held a position of CNM2 on the salary scale

In June 2014 she was appointed to do extra duties as emergency department (ED) nurse in charge. The vacancy of these extra duties was created because the person who had held that position before her left. This predecessor was also a CNM2 and she received an allowance.

The hospital in which the Complainant worked was a band 2 hospital however this was later changed to be a band 1 hospital and the role performed by the Complainant should have been reclassified as a CNM3.

The permanent post of CNM3 (which included ED nurse in charge duties) was advertised in September 2017. The Complainant applied for this post but was not successful.

In April 2018 the Complainant raised an IR grievance. This was tow fold. Firstly, she sought a CNM3 post or in the alternative the payment of the allowance from 2014-18 for the duration of the period that she had done the extra acting up duties of ED nurse in charge.

The outcome of the Stage one grievance was that she would receive this allowance, as her predecessor had done. By letter dated 10 April 2018 she was offered the allowance by the Assistant Director of Nursing.

However, following that letter, in 24 May 2018 the Complainant received an email from the Director of Nursing who advised the Complainant that due to the existence of circular 34/2002 the payment of the allowance was restricted to the first holder of the allowance and did not pass on to benefit nurses who took up the in charge duties subsequently.

The Complainant feels that this is unfair as she did the extra duties from 2014-18, she did not receive the allowance although her predecessor had done, she was offered the allowance by way of letter dated 10 April 2018 and in which she was told that she had ten days to accept the offer, which she did so.

The Respondents state that they are bound by the wording of circular 34/2002. It is unfortunate that the Complainant was offered the allowance in April 2018 however that was done without the knowledge of circular 34/2002, which expressly restricts the payment of the allowance to anyone other than the first holder of the allowance.

The circular states this allowance is effective from 1 June 2002 and will cease to be paid when the post holder is promoted, transferred or retired.

There is no dispute that the Complainant did these extra duties and that her predecessor did receive the allowance but the wording of the circular is not discretionary and the Respondent is compelled to apply it.

In respect of the claim that the Complainant should be raised to the CNM3 salary scale, the Respondent states that the CNM3 role has been filled and the Complainant no longer has responsibilities for the ED nurse in charge duties.

This case is unfortunate in that the Respondent finds itself in the uncomfortable position that they agreed to pay her the allowance in April 2018, after she raised a stage one grievance without knowing about the existence of circular 34/2002. The Complainant was offered the allowance which had a value of €3023.25 per annum which over a four-year period, would have totalled €12092.00. However, a month later on 24 May 2018 once the circular was brought to the attention of the Director of Nursing, this offer was rescinded.

Everyone accepts in principle that the allowance was a fair payment to reflect the extra duties that the Complainant had performed between 2014-18, but the Respondent submits that its hands are tied by the wording of the circular.

I am of the view that the offer made in April 2018 should not have been made and while it arose due to a mistake (that being of the ignorance as to the existence or terms of Circular 34/2002) this was not the fault of the Complainant.

I cannot find that the circular did not apply to the Complainant, because it did and its wording was express namely that the allowance only applied to the first holder of the allowance and no one after that. However, as an amelioration I recommend the payment of a nominal sum of one year’s loss of allowance. I recommend this as a once off lump sum payment to reflect the fact that an offer was made by the Respondent and accepted by the Complainant in April 2018 and not because the allowance was an entitlement, because it expressly was not and I am bound to apply the ordinary meaning of the circulars as agreed at the LRC between unions and management.

In respect of the claim for a CNM3 salary I accept that this position is not vacant and therefore it would not be an appropriate remedy. I also do not accept the Complainant’s point that she should have received the CNM3 salary during 2014-18 because this was never offered nor agreed between the parties

Recommendation payment: €3023.25