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-00026417-001

20/02/2019

In December 2013, the Complainant transferred to the Respondent’s hospital, as Hygiene Services Coordinator. In this role, which entailed the implementation and auditing of hospital hygiene standards, the Complainant was paid at Clinical Nurse Manager 1 (CNM1) level.

In July 2014, the Respondent’s Household Manager (Grade 5) retired and this job was lost due to the moratorium in place at the time. Consequently, the Complainant, on top of her roles and responsibilities as Hygiene Services Coordinator, assumed responsibility for household management. The Complainant, who did not have staff management or strategic management duties/responsibilities in her Hygiene Services role, now assumed responsibility for roster management, attendance management, employee relations, implementation and development of Policies Procedures and Guidelines hospital wide. The Appellant was also responsible for the training, development and interpersonal relations of over 25 staff.

In May 2016, following an unannounced HIQUA report, which highlighted non-compliance in the above area, the post of Household Manager was re-advertised with the view to a Grade 5 appointment. However as there were no applicants, the Complainant was appointed internally on the agreement that the post would be regraded to a CNM2 grade.

Following the retirement of the Head of Portering, in February 2018, the Complainant had her duties extended further to include the operational management of this Portering/Security function. The additional responsibilities taken on by the Complainant with regard to this role included roster management, waste management training, Dangerous Goods Safety management and all risk assessments involving the staff and new machinery.

The Complainant has tried on numerous occasions to progress her regrading claim locally with management, but this has not yielded any success. Local hospital management, including General Management, HR and Nursing Department Management supported this approach. However, despite four applications being made in relation to the regrading of the Complainant’s position, it was turned down on each occasion at Hospital Group level.

The Complainant’s Trade Union made representations on her behalf to Hospital Management in October 2018. The Trade Union appealed the Complainant’s grievance to the Respondent’s Group Director of Nursing on 15 November 2018. Following a number of meetings, management confirmed to the Trade Union on 11 January 2019, that, while agreeing that the Complainant’s role was above that of a CNM1 grade, her claim for regrading could not be conceded. However, it was confirmed on behalf of management that they would participate in a referral of the matter to a third party.

The Complainant submitted her claim to the WRC, under the Industrial Relations Act, 1969, on 20 February 2019.

The Complainant’s claims:

In her submission to the WRC, the Complainant set out the following claims:

1)      That the Respondent accepted that the job being carried out by the Complainant should be paid at a grade higher than that of Clinical Nurse Manager 1 (CNM1). In this regard, the Complainant claims that the Respondent, locally, has made four business cases for the role to be regraded at Clinical Nurse Manager 2 (CNM 2), as this grade is comparable with the Complainant’s work, role and responsibility. It is claimed on behalf of the Complainant that CNM2 grade should be a starting point, subject to a Job Review which the Complainant’s Trade Union has suggested to the Respondent.

2)      That regrading of the Complainant’s grade should be made and applied retrospective to May 2016.

3)      That the Complainant received an appropriate compensatory sum, in the amount of €5000, for the manner in which her employer, in the higher echelons, has delayed in respect of her regrading claim.

The Complainant’s arguments supporting her claims:

It was submitted on the Complainant’s behalf that when a synopsis of the roles and responsibilities attaching to her current role (Business Manager Support Services) are compared to those required of a CNM2/Grade 6 or a CNM3/Grade 7 it is clearly identifiable that the Complainant is effectively performing the role competently at responsibility levels above those of CNM1 grade.

It was submitted that the Complainant has been seeking to be paid at the appropriate grade for the work she does since 2016. It was submitted on the Complainant’s behalf by her Trade Union representative that, as agreement in principle had been reached with Management that the Complainant’s job was above that of a CNM1 grade, the HSE should be made to follow through on this agreement and upgrade her to a CNM 2 role.

In addition, it was submitted on the Complainant’s behalf that an independent job review should be allowed. According to the Complainant’s Trade Union representatives, this request is predicated on the contention that, while the Complainant is performing in a CNM3 role, there are few comparative job roles to present to the Adjudicator in support of the claim in this regard. However, it is contended by the Complainant’s Trade Union representative that it has been conceded nationally that those with the portfolio responsible to HIQA are, at a minimum, graded at CNM2 level, in care of the elderly facilities.

It is also contended that the Respondent hospital is a University Hospital within the Hospital Group and therefore carries a higher portfolio. The Trade Union contended that the conducting of an independent job review will be the action of an honourable employer and the right and just action to take in response to the Complainants claim.

According to the Complainant’s representative, no one at the local Nursing or business Manager level objected to her claim nor was she ever informed that she did not have a legitimate claim. It is contended that this is evidenced by the number of senior nurse managers, HR and General Manager who sought to have her claim progressed.

According to the Complainant’s evidence, she commenced her regrading application in 2016 and has, since then, been unable to get the matter addressed. Consequently, it was submitted on behalf of the Complainant that the claim of €5000 is justified in the context of the aberrant actions of the HSC and the unnecessary delay, at higher levels within the organisation, in addressing the Complainant’s claim.

In conclusion, it was submitted on behalf of the Complainant that the HSE has not acted in good faith or in an honourable manner in respect of her regrading claim. It is contended that the Complainant has shown flexibility in respect of her role to date and, on that basis, her Trade Union requests that the Respondent be made to honour the agreement by upgrading the Complainant to the grade of CNM2, thereby paying the Complainant commensurate with the work she is carrying out and that they agreed to review her role independently in line with the criteria under the four main headings as stated in the NRS and apply same if unfavourable to the Complainant.

The Complainant’s Trade Union representative requested a recommendation in her favour based on the arguments set out above.

The Respondent submitted that the Complainant commenced employment on 16 December 2013, at which point she was graded CNM1. According to the Respondent, the role of Business Manager in Support Services was advertised, in 2016, as an expression of interest invitation which would be filled on a grade for grade basis. It is submitted that the Complainant was successful in her application and moved into the new role on 9 May 2016, where she continued to be paid her original CNM1 grade.

It was submitted by the Respondent that the position of Business Manager for Support Services was a new role in the Respondent’s hospital and was created by suppressing another position in the hospital.

It was further submitted that the role, which reports to the Director of Nursing and Midwifery, is responsible for the management of approximately 45 support staff, the management of external contractors, the implementation and monitoring of hygiene services and supporting development of new organisational structures.

According to the Respondent’s submission, the Complainant feels that, because of the extra duties and responsibilities which she has taken on, her position warrants regrading and that she has subsequently sought this through a job review and a business case which were sent to hospital management. However, the Respondent submits that, unfortunately, hospital management have no mechanism to regrade the position for the following reasons:

1.       The job review scheme is only open to clerical and administrative positions, with nursing positions not covered by this scheme.

2.       Under the HSC Pay bill Management and control the Respondent is prevented from regrading this position without national approval and the suppression of another post, as, in 2016, a post was already suppressed to create this business manager role.

In conclusion then, the Respondent submits that there is no comparable role in other hospitals to that carried out by the Complainant in her current role. Therefore, it is contended that because of the uniqueness of this job the Respondent would be agreeable to third party job review.

Having carefully considered all the evidence presented by, and on behalf of, the Complainant and the Respondent I am fully satisfied that the Complainant’s claim for re-grading is well-founded, fully justified and indeed long overdue. This view is expressed in relation to the Complainant’s claim for regrading from her current grade of CNM1 to that of CNM2.

Consequently, I am satisfied that this regrading should apply without any further delay, with full retrospection to 16 May 2016.

With regard to the Complainant’s contention that the duties/responsibilities attaching to her current role are more commensurate with those of the CNM3 grade, I find that I am not in possession of sufficient evidence of the nature that would allow me to make a valid assessment of such a claim. However, in order to assess the validity of the Complainant’s claim in this regard, I am of the view that a job review, conducted by a reputable and competent third party, with experience/ qualification in carrying out such an review, is the most appropriate and, perhaps, the only valid way of resolving this matter.

Finally, while I accept that, bearing in mind the inherent and uncontested validity of the Complainant’s claim, there has been significant delay in the processing her regrading application, I note that the situation was beyond the control of the Respondent’s local management. Consequently, I am reluctant to concede on the request for compensation, particularly to the extent claimed.

However, I do note that the Complainant has extended commendable flexibility in assuming duties and responsibilities attaching to 2 other full-time posts on top of those already attaching to her original position and carrying out the combined workload in a positive and competent manner. Consequently, I am of the view that a payment of €1000 would be a fair and reasonable award to make in the circumstances.

The award set out in the previous paragraph is predicated on the expectation that the Respondent will accept the recommendations set out below in relation to the immediate regrading of the Complainant to the CNM2 grade and the timely arrangement/conclusion of the job review exercise.

With particular reference to the job review, I am of the view that it should be possible to have this concluded no later than the end of September 2019. Other than for reasons outside of the Respondent’s control, should this process not be concluded by the end of September, then I would feel it appropriate that an additional compensatory payment of €1,000 be made to the Complainant.

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

·         That the Respondent agree to implement an immediate regrading of the Complainant’s current position of Business Manager for Support Services from its current grade of CNM1 to that of CNM2, backdated to 9 May 2016, with full retrospection to apply.

·         That the Respondent immediately engage the services of an appropriately qualified person(s) to conduct a comprehensive job review of the Complainant’s current role. I would further recommend that this review should take place under the auspices of the Nursing Commission Report, where the appropriate competencies for comparison purposes would be those of the Clinical Nurse Manager (Promotional Grade)

·         That the Respondent will endeavour to have the job review process completed by the end of September 2019 and, in the event that it is not, the Respondent will adhere to the recommendation in relation to a further payment to the Complainant of €1,000 as set out in the previous section.

·         That the outcome of the job review will be accepted by both the Complainant and the Respondent and, where appropriate, all findings are implemented accordingly.  

·         That the Respondent will agree to make an immediate payment of €1,000 to the Complainant as fair and reasonable compensation for the delays that have taken place in the processing of her legitimate grievance and in recognition of her flexibility and goodwill in the manner in which she carried out her increasing level duties/responsibilities throughout the period.

That concludes my recommendation.

Industrial Relations Act