Complainant

Respondent

Anonymised Parties

Nurse Manager

Health Care Provider

Representatives

Caroline Brilly Psychiatric Nurses Association

HR

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-00033196-001

17/12/2019

The dispute is concerned with payments to a nurse manager for periods of providing cover on night duty on what is commonly known as an acting up arrangement.

The former Employee is a retired CNMII formerly employed in the mental health services  assigned to a named hospital.

In the hospital night duty is rostered on a rotational basis for periods of six weeks. It became the practice for some nurse managers to ask others to cover periods of their night duty. The former Employee had as a condition of his employment that he would be required to do night duty and to take on the role and responsibility of what is known as the acting clinical nurse manager III. As a consequence of the unavailability of others to cover their requirement to act up in the CNMIII positions following a change of the roster period from four to six weeks, the former Employee found himself covering extended periods of night duty for six weeks at a time which according to his union could run into months.

Following the issuing of the HR Circular 17/2003 the practice of paying for acting up to the former Employee continued. However, it was abruptly ceased in November 2016 without any warning or correspondence from nurse management. There was a vacant CNMIII post on night duty and the union contends that the former Employee should have been given short term contracts to cover the periods of extended acting up. The duration of these periods was given as 84 days (which suffices as 90), 238 days and 259 days between 2017 and 2019. Efforts to obtain payment for these periods of acting up were unsuccessful and were not resolved prior to his retirement in December 2019.

During his periods of acting up as a CNMIII the Employee received payment and the union contended that the provisions of the HR Circular 17/2013 were not afforded to him. Finally, it was contended that the situation that arises in the hospital where the former Employee was employed is an anomaly and that it should be possible to reach a solution for this unique situation.

The Employer’s case was as they put it to be defended by them on the application of HR Circular 17/2013. That circular states that the payment of an acting up allowance is only possible when the employee is acting up to the higher position for a period which is more than three months. Consequently, short term payments for acting up ceased and were replaced by the application of new thresholds for temporary appointments in accordance with the circular. In the hospital where the former Employee was employed, it was proposed by management to the unions that in order to comply with the circular and to continue the payment of the acting up allowance consensus was needed from their members to change the rotational night duty roster period from six weeks to twelve weeks or more. Neither of the unions representing nurses could gain consensus from their members and therefore it was not possible to meet the requirements of 17/2013. The CNMIIs in the hospital wished the roster to remain unchanged so that they would continue to have a liability for a six-week period at a time. Staff continued to “give their night duty away” to others who it suited to stay on night duty for longer periods, but management could not make an offer of a temporary appointment as per 17/2013 to these staff as it would be a breach of an agreed roster.

Management added that until about late 2016/early 2017 there was also the complicating factor that there was no vacant CNMIII position that management could submit for a temporary appointment which was in turn linked to the terms of Circular 17/2013. There was an agreement to create two positions so that management could pay temporary appointments, but the union side still could not get consensus from their members to change the roster to provide for 12 weeks or more of night duty. Management stated that the former Employee had a tendency to cover other staff at their request for their night duty because they did not like night duty themselves. The management position to the former Employee is that they were not able to process his claim for payment as it would be a breach of the agreed roster and outside the terms of a temporary appointment offer under Circular 17/2013.

Management were asked at the hearing to clarify how many people were affected by this dispute as it was important at the outset to establish if this was potentially a group claim with knock on effects. They stated at the hearing that if the claim were conceded it would affect one other person at the hospital. Different roster arrangements including the 12-week arrangements have been concluded elsewhere within the remit of the management in this case and the particular hospital is an exception. On this basis the concession of the claim does not fall within the category of a group claim as the number of two falls within the maximum number which is established under the 1969 Act in practice of no more than three people being involved in a claim or affected by it at any time in most instances. Otherwise, they would represent a group and not individual or small numbers of individuals as was intended by the originating legislation. The union confirmed at the hearing that this was not a case to create precedents within the particular employment or elsewhere based on roster arrangements. However, the union was also it would appear arguing against Circular 17/2013 and indeed the union official expressed some dissatisfaction with the way it was applied and had affected nursing grades compared to previous practice. This brought into question the application of Circular 17/2013 and again whether any concession of the claim could interfere with that circular and its intentions. It was acknowledged by  management at the hearing, that the purpose of Circular 17/2013 was to replace a situation where acting up allowances were paid for very short periods of temporary cover on the one hand which in turn in many instances led to staff being designated into acting up positions which were never intended to be of a long duration but which over time developed into what might be termed a “sitting tenant” arrangement which in turn led to the regularisation of many people in the employment into fulltime promotional positions without competitions and without other staff having any realistic opportunity of accessing those promotions. These practices were not confined by any means to nurses.

It follows therefore that Circular 17/2013 requires examination in this case. The title of the circular is “Regularisation of Acting Posts in conjunction with the introduction of new arrangements for the short-term filling of posts and the reintroduction of Senior Staff Nurse positions”. Management were invited at the hearing to examine the circular against the facts in the current dispute and to advise which aspect of the circular applied in this case. Having considered the question management suggested that clause 9 may apply. For the record, the following is the text of clause 8 and clause 9 of the particular circular.

“8) With effect from the 1 October 2013 there will be no payment for any temporary appointment that covers annual leave, sick leave, special or other leave, or to allow for the completion of a recruitment process, or the appointment from a panel, following a retirement or resignation. Staff will be expected to take on the role and responsibility of the higher post for such periods, provided this period does not exceed 3 months.”

It is evident that the terms of clause 8 do not apply to the type of cover provided by the former Employee for extended periods.

“9) In instances where there is prior knowledge that the period will be in excess of 3 months, and the employer has deemed there to be a requirement to fill the post, a temporary appointment to the post will be made from the first day of absence with appropriate remuneration. Where an appointment was envisaged as concluding within 3 months but subsequently exceeds the period, and where no temporary appointment has been made, appointment will be made on a temporary basis, retrospective to the first day of absence.”

“9) In instances where there is prior knowledge that the period will be in excess of 3 months, and the employer has deemed there to be a requirement to fill the post, a temporary appointment to the post will be made from the first day of absence with appropriate remuneration. Where an appointment was envisaged as concluding within 3 months but subsequently exceeds the period, and where no temporary appointment has been made, appointment will be made on a temporary basis, retrospective to the first day of absence.”

Unless one is to define a refusal to comply with a requirement to provide night duty for periods of six weeks as generating a temporary vacancy requiring a temporary appointment then as was suggested to management at the hearing and from which they did not demur, the terms of clause 9 do not comprehend the circumstances of this case or the claim made by the former Employee. It is a matter of fact that he was simply covering the requirement of other employees to perform night duty and making up for their refusal to do so by acting up in the CNMIII role. For the record, the CNMIII is the designated person in charge on night duty in the hospital at any time and this has always been the case albeit the title of the postholder has changed over the decades.

On this basis, allowing for the fact that the hospital management must have known from rosters or from sign in sheets or from payment records that the former Employee was providing extended periods of cover into a CNMIII post, the former employee in this case should have been paid as he was covering the duties of that position when others had refused to do so. This was not a question of a temporary vacancy requiring a competition as the former Employee would not have been filling a vacant post but covering for a refusal of others to meet their contractual commitments. To expect that he would meet other employees’ contractual commitment and do so without any payment is considered to be unreasonable.

Finally, and of significance, this recommendation should not be read and is not intended in any way to vary the terms of Circular 17/2013 and any attempt to use this recommendation to interfere with the terms of that circular would not be justified in a situation where the terms of this recommendation are designed only to remunerate the former employee who provided long periods of acting up to cover for other employees and for which he should be paid. Management of night duty cover and adherence to contractual commitments are a matter for management and are unaffected by this recommendation.

On the basis of the conclusions reached in considering this dispute and concluding that the terms of Circular 17/2013 do not apply to the facts of the case, I recommend concession of the claim and payment of the monies due to the former employee for those periods where he was acting up in the post of higher duties  for in excess of 90 days in the three periods claimed by the Union.

Payment for acting in a post of higher responsibility