Worker

Employer

Anonymised Parties

Nurse

Hospital

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00030664-001

05/09/2019

The Worker is seeking retrospective payment of a Specialist Qualification Allowance paid to her since March 2019 which she believes should have been paid from September 2010.

The Worker submits as follows:

When the Worker commenced employment with the Employer in August 2009, the Employer agreed to fund the second year of an MSc programme which the Worker was undertaking at the time. On completion of the MSc, the Worker successfully applied for reimbursement of fees. However, she did not apply for the Specialist Qualification Allowance to which she was entitled as a result of attaining an MSc, as she was not aware that she was entitled to the allowance.

In 2012 the Worker became aware that she was entitled to payment of the Specialist Qualification Allowance and in September of that year she applied to the Employer for same. The Employer informed her that it was not processing any further Specialist Qualification applications following a directive from the HSE, effective since February 2012. The Worker responded that she was unaware that she should have applied for the allowance.

On 20th February 2019 the Worker wrote to her Assistant Director of Nursing (ADON) seeking to have the Specialist Qualification Allowance paid to her. The Worker received her first payment in March 2019. She subsequently emailed the Employer on 26th March 2019 seeking retrospective payment of the allowance. The Employer responded on 27th March 2019 to advise that the allowance would not be paid retrospectively.

The INMO, on behalf of the Worker, wrote to the Employer on 11th July 2019 seeking full retrospection to September 2010 when the Worker first became eligible for payment of the allowance. The Employer responded on 2nd August 2019, to say that as the Worker did not adhere to the application process, which required submission of the relevant claim form with six months of the receipt of a qualification, payment of the allowance would not be applied retrospectively. The Employer indicated, however, that it was prepared to offer 6 months retrospective payment.     

Worker’s case

·         Nothing in the original circular precludes the Worker from having retrospective application of the allowance to September 2010.

·         On taking up employment with the Employer, the Worker advised management that she was in the first year of an MSc. The Employer agreed to fund year two. On completion of her course the Worker applied in writing to be reimbursed for her year two fees but she was not aware that she was entitled to be paid a Specialist Qualification Allowance and, therefore, did not apply for payment of same.

·         The Employer made no attempt to advise the Worker of her entitlement to the Specialist Qualification Allowance either at interview or on completion of her course. The Employer’s education policy does not advise employees of their entitlement to the Specialist Qualification Allowance or direct them to apply for this allowance on completion of a relevant course.

·         The fact that MSc fees were reimbursed demonstrates that the Employer was fully aware that the Worker had achieved a specialist qualification. However, despite this, the Employer neglected to follow through and did not set up payment of the Specialist Qualification Allowance to the Worker.

·         On 19th September 2012, when the Worker asked HR if she was entitled to any additional remuneration following successful completion of the MSc, she was told that she was not, and was advised that the HSE had issued a directive not to process any Specialist Qualification Allowance payments. Accordingly, the Worker took it in good faith that she was being paid correctly by the Employer. However, it was confirmed by the Minster for Expenditure and Reform on the previous day (18th September 2012), that following the Review of Allowances, all Specialist Qualification Allowances were to be retained and paid retrospectively.

·         The HSE issued a memo on 12th October 2012 confirming that Specialist Qualification Allowance was approved for new beneficiaries who had been denied the allowance with effect from the 1st February 2012. The Worker would argue that the Employer should have conducted a retrospective review to ensure that the allowance was paid to all eligible workers.

·         The Employer does not have a written policy detailing the criteria and application process for the payment of Specialist Qualification Allowance. There is an application form available in the HR section of the intranet. However there is no mechanism to direct employees to this form or make them aware of its existence. 

·         Other eligible clinical nurse managers and clinical nurse specialists employed by the Employer and elsewhere in the health service have been paid the Specialist Qualification Allowance from the outset and the Worker should not be treated any differently.

·         As the Employer has accepted that the Worker is entitled to the Specialist Qualification Allowance, it would be unfair if the Worker was penalised as a result of the Employer’s actions.

The Employer submits as follows:

The Worker commenced employment with the Employer as a CNM 1 in August 2009. She was promoted to CNM 2 in July 2010.

A Qualification Allowance is payable to a nurse with the appropriate qualification for the role she is performing. A Qualification Allowance has to be applied for within 6 months of obtaining the qualification.

The Worker completed her Masters in 2010 and she was entitled to the Specialist Qualification Allowance from September of that year. However, she never applied for the allowance at that time.

On 19th September 2012, some two years after obtaining an MSc, the Worker sent an email to Nursing Administration querying her entitlement to an allowance as follows:

“Some of my colleagues have informed me that it is possible that I may be entitled to a qualification allowance. I contacted HR to establish if this is the case and it was suggested to me that I contact you. How would I establish what allowances may be available that are linked to qualifications and my current post? It may be the case that I don’t meet the necessary criteria for such allowances.   I would be happy to discuss with you if needed….”

Nursing Administration responded on the same day in the following manner:

“Unfortunately HR is any not processing any further qualification applications because of a directive from HSE with regard to the suspension of qualification/acting allowances which has been effective since February 2012 and we do not know when this will be lifted.”

The Worker responded to this email as follows:

“Thank you for your response. I completed my masters 2 years ago. Unfortunately I was unaware that I should have applied for the allowance.   However, I did receive partial funding from St James’s for the masters which was very much appreciated. I suppose it is a lesson to check things out in time.”

A HSE Directive was issued to the Employer in February 2012. This stated that no allowances could be approved for new beneficiaries until a review of allowances had been completed. There were in fact 13 applications for a qualification allowance not processed by the Employer in the months March, April and May of 2012.   The Government review of allowances was completed in October 2012.   Retrospection of the allowance was backdated to January 2012 for those who had applied for it.

On 5th October 2012 the INMO communicated with all of its members giving an update on the Government Review of Allowances.   On 12th October 2012 the Government decision on the review of allowances was issued to hospitals.  

However, the Worker did not pursue the issue any further until March 2019. The Director of Nursing submitted an application for payment of the allowance on her behalf on 12th March 2019. The allowance has been paid to her since that time.

On 11th July, 2019 the INMO, on behalf of the Worker, wrote to the Employer alleging that it had refused to pay the allowance in 2010. This statement is incorrect. The Worker never applied for the allowance at that time. She made an enquiry in 2012 and was told that a HSE directive prevented the payment of the allowance and the Worker appeared to accept this position at that time. She did not apply for the allowance until March 2019

On 2nd August 2019 the Director of Nursing wrote to the INMO informing it that the allowance must be applied for within 6 months of obtaining the award and confirming that claims are not processed retrospectively. The Employer has offered 6 months retrospection in line with that policy.

Employer’s Case

·         The onus rests with the individual employee to apply for an allowance.

·         The Worker had access to the same information as others who had applied for the allowance.

·         When the Worker enquired about an entitlement to the allowance it was no longer being paid due to a HSE directive.

·         The Worker states in her email of September 2012 that it was a lesson to check things out on time. However, she still failed to apply for the allowance when it was reintroduced.   She was not informed in 2012 that it would not be paid. It is clear from the email sent to her that payment of the allowance was only suspended and that management did not know when this suspension would be lifted.    

·         This issue of non-payment of allowances and their re-introduction got significant publicity at the time. (I.e. September/October 2012). The Worker must have been aware of this and yet failed to follow up on whether or not she may be entitled to such an allowance.

·         The Worker’s contracts of employment state that claiming an entitlement to an incremental credit must be done within the first 6 months of employment. Claims received after 6 months will not be processed retrospectively. Although this dispute does not concern an increment the Worker was on notice that there was a principle established that there is a time limit of 6 months for making claims on payments it is claimed are owed to a worker.

I am of the view that the Worker was entitled to be paid the Specialist Qualification Allowance from the time she was awarded an MSc in September 2010. I find that the fact that the MSc was work-related is persuasive in this regard.

To my mind, the Employer had a duty to ensure that all of its employees, including the Worker, were fully aware of the allowances to which they are entitled and that any restrictive condition in the relation to the payment of allowances, such as existed in this case, should be explicitly drawn to the attention of all employees.  

I am surprised that once the Employer became aware, through its fee reimbursement procedure, that the Worker had been awarded an MSc, it did not make her aware of her entitlement to the Specialist Qualification Allowance and of the six month time limit for applications which was in force.

Frankly I am at a loss to understand the attitude of the Employer as reflected in the email exchange in 2012 as submitted by both parties. When the Worker asked if she was entitled to the allowance, the Employer did not answer her query but instead informed her that it was no longer processing such applications. Shortly after that, the process was reactivated but the Employer did not contact the Worker to inform her of this. The Employer cannot rely on INMO circulars or the media to relieve it of its duty in this regard.

I note that the Employer has given great weight to the six month time limit, from the date of attaining a qualification, within which applications for payment of a Specialist Qualification Allowance must be made. However, the six month time limit does not seem to have hindered the Worker when she successfully applied for payment of the allowance in 2019. I note that the Employer has already conceded the principal of retrospection albeit only for a six month period.

The Worker has quantified her loss as €23,491. At the hearing, the Employer accepted that this figure was correct.

I find that this complaint is well founded and I direct the Employer to pay the Worker €23,491 in respect of non-payment of the Specialist Qualification Allowance.

Non-payment of qualification allowance