ADJ-00020486

Complainant

Respondent

Anonymised Parties

A Practice Development Coordinator

A Hospital Group

Representatives

AnneBurkeINMO

Jean Kelly

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-00027027-001

13/03/2019

The Complainant, a qualified nurse/midwife had commenced employment with the Respondent, a hospital, in 1983 as a staff Midwife. In 2006 the Complainant successfully applied for the post of Practice Development Coordinator (PDC) and was graded as an Assistant Director of Nursing (ADON), non-Band 1.

After a number of years, the Complainant became aware that her counterparts as PDCs, in both General Nursing and Mental Health Nursing were graded at ADON Band 1. In 2013, the Complainant approached the former Director of Nursing (Ms A) seeking to be regraded from ADON non-Band 1 to ADON Band 1, on the basis that her aforementioned colleagues were on the latter grade.  Ms A subsequently wrote to the Group Head of Human Resources on 23 October 2013, setting out the salary anomaly and seeking that the Complainant be regraded as ADON Band 1.  The request for regrading was unsuccessful based on the belief that the Maternity Unit, in which the Complainant worked, was deemed to be a non-Band 1 hospital.

Also, in 2013, the Complainant, at the request of Ms A, undertook a very significant project which had a group wide remit.

In 2016, the Complainant contacted the HR Manager at the hospital, on an informal basis, in order to progress her claim for regrading. The HR Manager referred the matter to the then Director of Nursing (Ms B). The Complainant subsequently met with Ms B and raised her concerns regarding her claim for regrading and retrospection which was lodged with Ms A back in 2013. As a result of this meeting, the HR Manager wrote to the Complainant on 24 October 2016 confirming that she would be assimilated onto Point 7 of the ADON Band 1 salary scale, with effect from 3 October 2016.

On 6 July 2017, the Complainant met with Ms B and raised her objections to being placed on the Point 7 of the ADON Band 1 scale, advising that this had not addressed the retrospective aspect of her claim.  On 9 August 2017, the Complainant received confirmation from the HR Manager that the assimilation arrangements had been revised to the effect that she was placed on Point 9 of the ADON Band 1 scale. This correspondence set out that the revised assimilation was in full and final settlement of the Complainant’s claim.

The Complainant’s Trade Union wrote to Management on 10 October 2018, seeking a meeting to comprehensively address her claim. During a meeting on 11 December 2018, Management offered to revise the regrading back to January 2016, given that the Complainant was intending to retire in February 2019. This offer was declined.

The Complainant submitted her claim to the WRC, on 13 March 2019, seeking adjudication under the Industrial Relations Act, 1969.

The Complainant’s claim:

The Complainant’s Trade Union representative set out her claim as follows:

a)       The Respondent, in 2006, failed to issue the Complainant with a Contract of Employment that was in line with those undertaken by comparators in the same hospital.

b)      The Respondent ignored the Complainant’s claim made in 2013 in relation to regrading.

c)        The Respondent unilaterally made a decision in 2016 about regrading without consultation with the Complainant and this adversely affected her intended retirement date.

d)      The Respondent had constructive knowledge during this time that the Complainant was undertaking dual roles even prior to the further expansion of the role in 2013, as the sole Midwifery Practice Development Coordinator in the Healthcare Group in 2013.

e)       The Complainant is seeking retrospective payment for the difference between the non-Band 1 ADON  salary and the Band 1 salary scale from 2006 to 2016.

f)        The Complainant is seeking compensation of €15,000 for the unacceptable manner in which the Respondent left her in a dual role, disregarding her claim and failing to include her in negotiations that adversely affected her remuneration and ultimately affected her planned retirement date.

 The Complainant’s arguments in support of her Claims:

It was submitted on behalf of the Complainant that she was employed in a Band 1 hospital in 2006. It was further submitted that the remuneration of Director of Nursing/Matron grades were defined and underpinned in a Department of Health Circular, dated 26 March 1997.

It is further submitted, on behalf of the Complainant, that, according to the aforementioned Circular, the hospital in which the Complainant worked was clearly comprehended as a Band 1 hospital as were a number of other named hospitals. According to the Complainant’s evidence, as the circular further delineates three Maternity Hospitals in Dublin as Band 2 hospitals, the Complainant should have been comprehended and graded from 2006 as a Band 1 ADON.

According to the Complainant’s submission, she found herself in the anomalous position that she was being remunerated at a lower salary scale than comparators who were carrying out the same roles and responsibilities in the General Hospital and in the Mental Health unit on the same hospital site.

With regard to her claim for regrading, it was submitted on behalf of the Complainant that, as far back as 2013, she discussed her claim, with the former Director of Nursing, but the claim was not conceded by the Respondent at the time.

It was further submitted that the Complainant was never invited to participate in the discussions, which took place in 2016, about her claim. Therefore, the Complainant is challenging the Respondent’s contention that, as set out of their correspondence dated 24 October 2016, the offer was in full and final settlement of her claim. The Complainant’s Trade Union representative argues that the arrangement was not reached by agreement but rather was imposed on the Complainant through a unilateral decision by the Respondent.

The Complainant also submitted that Practice Development Coordinators in other Band 1 hospitals have been regraded in the last number of years. The Trade Union also contends that the Complainant’s comparator in another named hospital was locally regraded in 2014 and was regularised via National HR in May 2015.

It is further submitted that, in 2006, the Respondent presided over the Complainant taking up the dual roles, that of Midwifery PDC and the interim Nurse Tutor role, while still paying her at a non-Band 1 salary.

Finally, in this regard, it was submitted that all Midwifery PDC posts are now graded as Band 1, thereby correcting the contractual anomalies are set out in the Contracts of Employment issued to the Complainant and her colleagues in 2006.

Conclusion:

It is submitted on behalf of the Complainant that she is a dedicated and long serving employee. In taking up her role she clearly placed the service before herself in terms of remuneration. The fact that the Complainant, since 2013, clearly sought to have a claim comprehensively addressed, she was ignored by Management both locally and in the wider group, who took full advantage of her knowledge, competency and skills in seeking to extend her remit to a PDC for the other Maternity Units in the Group.

In conclusion, it was submitted that the Respondent has well extended the value for money received from the Complainant in terms of dual roles and, as a result, the Complainant respectfully requests that her complaint in this regard be upheld.

Background:

The Respondent submitted that they have a maternity unit and a general hospital co-located on the one site. It was submitted that both the General Hospital and the Maternity Unit have an Assistant Director of Nursing in Practice Development. It was further submitted that the Hospital is a Band 1 hospital which attracts a Band 1 pay grade for Nurse Managers. However, it is further submitted that the ADON in Practice Development on the general side was paid as a Band 1 ADON while the ADON on the maternity side was paid as a Band 2.

According to the Respondent, the Complainant has worked as a Midwifery Practice Coordinator since 2006. It was further submitted that, in 2016, the Complainant brought the issue in relation to her grading to the attention of the then Director of Nursing (Ms B). According to the Respondent’s evidence, it was agreed to pay the Complainant on the ninth point of the scale from 3 October 2016. However, the Respondent pointed out that it was clearly outlined to the Complainant, at the time, that this was in full and final settlement of the claim.

Respondent’s response to the Complainant’s substantive claim:

The Respondent submitted that the initial job specification for the role to which the Complainant was appointed in 2006, clearly states that the remuneration attaching to the role was that of “Assistant Director of Nursing Non-Band 1 Salary Scale”.  It was further submitted by the Respondent that, on 10 August 2006, the Complainant signed and returned a copy of her contract accepting the post as defined in the job specification.

The Respondent submitted that the agreement put in place in October 2016 in response to the Complainant’s claim for regrading, was made in good faith by the then Director of Nursing and the Group Director of HR. The Respondent submitted that the agreement was clearly stated as a full and final settlement of the Complainant’s claim. Consequently, local management considered that, due to the fact that the Complainant lodged no further objection and accepted the payment which was made on foot of the agreement, she accepted the agreement and that the matter was closed. The Respondent submitted that the Complainant’s salary was amended to reflect the agreement of 14 September 2017 and a payment, representing retrospection for the period between 3 October 2016 and August 2017, was made to her on 12 October 2017.

However, notwithstanding this, the Respondent submitted that, on 10 October 2018, the Complainant’s Trade Union wrote to the HR Manager, stating that as the Complainant had entered into negotiations with Management, a number of years ago “without the benefit of Trade Union advice”, they were now seeking to revisit the claim.

The Respondent submitted that it is their position that the matter had been settled in full and it is not appropriate to retrospectively revisit it. Further, the Respondent contends that if the Complainant was unhappy with the content and the agreement stipulated in the letter of 9 August 2017, she should not have accepted the payment and should have raised an objection in that regard immediately. It was further submitted that Management in the Hospital have always and continue to communicate and engage with the Trade Union on a variety of local matters. However, the Respondent contends that it is the responsibility of the employee to engage their union, should they believe they require representation or advice on a matter.

Consequently, the Respondent does not accept that an agreed and subsequently closed matters should be reopened on the basis that the employee did not have the benefit of Trade Union advice. Furthermore, the Respondent stated that management do not wish to set precedents whereby matters that have been resolved locally can be open to review due to a lack of union consultation on the employee’s part.

In conclusion, the Respondent submitted that, as far as they are concerned, the matter was settled as per letter dated 9 August 2017 and the acceptance of the payments dated 14 September 2017 and 12 October 2017 confirm this.

Having carefully considered all of the evidence adduced, I have come to the conclusion that this claim is not so much about whether or not the Complainant has a case for regrading, as the Respondent, in effect, conceded this point when they agreed to regrade the Complainant in October 2016.  In my view, the complaint is about the effective date of the retrospection applicable to the regrading.

In particular, I am of the view that the key issue relates to the Respondent’s contention that the concessions provided in response to the Complainant’s regrading claim, as set out in their letters of 24 October 2016 and 9 August 2017, which gave retrospection to 3 October 2016, were in full and final settlement of that claim. In this regard, the Respondent is insistent that, having accepted the retrospection payments at the time, it is not acceptable to have the matter reopened, over two years later, on the basis that the Complainant did not have trade union representation at the time.

In response to this, the Complainant’s Trade Union is contending that not only did she not have union representation, but she had no participation in any discussion and was not consulted in any way in relation to the final outcome. Consequently, the Trade Union is contending that this was not an agreement, per se, between the Complainant and the Respondent, but rather a unilateral action imposed by the Respondent.

Having carefully reviewed the evidence, I can understand how the Respondent might feel their position is supported by the fact that the Complainant did not raise any objection to the position set out in their letter of 24 October 2016 for more than nine months later, when by letter dated 11 July 2017, she queried the point of assimilation and also requested retrospection back to 2006. 

In response to this, the Respondent wrote to the Complainant on 9 August 2017, agreeing to revise the assimilation to Point 9 of the scale. It was this letter that referred to the position being articulated as being in “full and final settlement” of the Complainant’s claim. Once again, there is no further correspondence or communication in relation to the matter until the Trade Union writes to the Respondent on 10 October 2018, almost 14 months later. In this correspondence, the Trade Union seeks a meeting with the Respondent on the basis that the Complainant had entered into those negotiations without the benefit of union advice.

I note from the evidence, that a meeting did take place between the Respondent and the Complainant, who was represented on this occasion by her Trade Union, on 11 December 2018. It is clear from the correspondence emanating from the meeting that the Respondent proposed a further extension of the retrospection period back to January 2016, as opposed to 3 October 2016 as set out in their correspondence of 9 August 2017.  The fact that the Respondent was willing, in December 2018, to amend the terms as set out in their correspondence of 9 August 2017, could reasonably be considered to undermine their contention that those said terms were in full and final settlement of the claim and therefore could not be revisited.

Based on the oral evidence provided by the Complainant at the Hearing I am satisfied that any tardiness on her part in responding to the Respondent’s correspondence of 26 October 2016 and 9 August 2017 was genuine and may well have been influenced, to an extent, by her focus on attending to her ever-increasing level of responsibility on the job.

Consequently, taking all of the above into consideration, I am satisfied that it would be reasonable, in the circumstances, to consider some further extension of the retrospection period applying to the Complainant’s regrading. In this regard, I am of the view that retrospection to January 2013, being the year in which the Complainant took on the additional group wide responsibilities, would be a fair and reasonable compromise in the circumstances.

Given this additional three years of retrospection, as set out above, I am not making any recommendation in relation to the Complainant’s request for compensation.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I make the following recommendation:

·         That the Respondent agrees to revise its response to the Complainant’s regrading claim and assimilate her onto the Assistant Director of Nursing Band 1 scale, at Point 9 with effect from 1 January 2013.

·         That the Complainant accepts this revised outcome as full and final settlement of her claim.

·         That the Trade Union agrees that the outcome is personal to the Complainant and that the Respondent’s concessions in this regard will not be used by the Trade Union in any subsequent claims on behalf of other members.

 This concludes my recommendation.

Industrial Relations Act