Complainant

Respondent

Anonymised Parties

A Nurse

A Health Care Service Provider

Representatives

Martina Weir SIPTU-Workers Rights Centre

Tracey Regan, HR Manager

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-00020889-001

30/07/2018

The Complainant is a specialist nurse who is seeking a retrospective application of a specialist qualification allowance which she was entitled to but was not paid. The Respondents do not contest her entitlement to the allowance in terms of her specialist qualification and have paid this to her since January 2017 but deny that she is entitled to a retrospective application of the allowance back to 2007 (when she received the qualification) as she did not furnish her specialist qualification until January 2017. They contend that the onus is upon the nurse seeking the allowance to provide the details of qualification.

The Complainant started work with the Respondent in 1997

She qualified as a Clinical Nurse Specialist in Dermatology in 2007 and her qualifications were entered on the Clinical Nurse Specialist data base at that time, which was copied to the Director of Nursing in the hospital where the Complainant was based also at the time.

The Complainant was not aware of her entitlement to the specialist allowance until 2017, ten years after she gained her specialist qualification.

The Respondent were put on notice of her qualification in 2007 and other than this, she did not apply for the specialist allowance because there is no known procedure for applying for such a qualification.

She has been out of pocket €2703.00 per annum from 2007 until 2017.

The Respondent do not deny that she was entitled to be paid, but rather contend that she did not apply, and yet there is no procedure by which to apply.

It is an artifice to contend that an application should have been made to her line manager when at all times her line manager and all those with whom she worked, knew that she had a specialist qualification and that she was using this this qualification in her daily work from 2007 onward.

The Complainant seeks a recoupment of the unpaid allowance in the sum of €2703.00 per annum, a loss of €18921.00

It is accepted that the Complainant gained the specialist qualification in 2007 that would have entitled her to the specialist qualification allowance.

It is accepted that she applied for this qualification to be registered on the Clinical Nurse data base in 2007.

It is accepted that the Complainant signed a contract of employment on 1 January 2007 in which her job description was Clinical Nurse Specialist – Demotology.

The allowance is subject to it being applied for and the Complainant did not apply for the allowance until December 2017. As an attempt to ameliorate their position the Respondent did back date the allowance to be payable for the full year of 2017, but it did not have the discretion to do this prior to 2017.

There is a process to apply for an allowance and this is that the person must provide to her line manager the proof of the qualification, which in this case was not done.

Her specialist qualification was completed in 2008 and it was up to her to apply to have this update on her qualification registered with HR payroll, which she did not do.

There is no discretion for payroll to pay retrospective claims where no application for an allowance has been made.

The Respondents cannot be tasked with the responsibility of trawling through every employees’ qualifications to ascertain whether they are or are not entitled to an allowance. The onus of this must lie with the Complainant

This complaint revolves not on whether the Complainant is or is not entitled to a specialist qualification allowance, but rather identifying upon who the onus lies, either to apply for or to provide the allowance.

I have heard both party’s submission and what is regrettable and somewhat surprising is that the Respondent has not clearly set out in either the contract or any other document, that is furnished on all employees, the terms upon which the payment of this allowance is conditional.

Such a clause should clearly set out that the onus lies on the employee to provide their specialist qualification, a step by step procedure that an employee must follow in order to apply for an allowance, the time line to do so and an averment that the failure to do so in accordance with the set procedure and within the expressed time frame will result in a denial of the allowance.

In the absence of such a contractual term, I am not prepared to make a recommendation that the onus lies on the Complainant in this case to do anything other than she did do, which was in November 2008 she emailed the North West Health Board, as it then was, to confirm that she had completed a Bachelor of Nursing (Level 8) as per the criteria for Clinical Nurse Specialist and to furnish evidence of this by way of forwarding her results if necessary. This email was not replied to by the Respondent.

I accept however in general that it cannot fall to the Respondent to take on the responsibility of the onus to pay an allowance that has not been applied for. I accept that the onus must lie on employees to bring this to the attention of management, as long as the Respondent has a clear procedure in place for an employee to follow, which is not the case here.

I find the complaint to be well founded and I recommend that the Complainant part-recover the losses that she has suffered since 2008. I recommend the sum of €16000.00 be paid to the Complainant on the basis that the Respondent has failed to set out clearly the procedure to be followed by an employee seeking the payment of a qualification allowance and because I find that in the absence of a formal application process, the Complainant did take adequate steps to inform the Respondent of her qualifications and offered to provide proof thereof.

Industrial Relations - entitlement to an allowance