Employee

Employer

Anonymised Parties

A Clinical Nurse Specialist

A Hospital

Representatives

Mary Rose Carroll, Irish Nurses and Midwives Organisation

Peter Flood, Ibec

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-00034523-001

07/02/2020

The employee commenced employment in September 2009 as a Clinical Nurse Specialist.  In accordance with the provisions of a Department of Health Circular, 112/99, a nurse is entitled to a Specialist Qualification Allowance when they are employed directly on duties in specialist areas if or when they have obtained the approved course.

The employee only became aware of her entitlement to the allowance in March 2019 and applied for this allowance. The employer refused to pay any retrospection in relation to this claim.

When the employee commenced employment in 2009 she was required to provide documentary evidence of her qualifications and credentials for verification.  She provided these and also submitted a letter from her previous employer in the UK that she was employed as a Clinical Nurse Specialist.  As the employer was aware that she was being employed as a Clinical Nurse Specialist and provided her qualifications in this regard they did not follow up and set her up for payment of the Specialist Qualification Allowance that she was entitled to.  The employee was not aware of what the allowance structure was as she was moving from the UK to take up the post and the employer did not advise her of her entitlement to such an allowance either at interview of appointment stage.  The employee was classified as a Clinical Nurse Specialist on the payroll system and the employer did not have a robust checking system to ensure that the allowance was properly paid. The employer has accepted that she is entitled to the allowance and is penalised due to a management error.  It was submitted on behalf of the employee that a similar case, ADJ-00024856, the employee claimed and was awarded full retrospection.  In another case r-120837-ir12/JT the claimant achieved the specialist qualification in 2003 and only became aware of this in 2010.  The Rights Commissioner in that case awarded full retrospection.  In another case, CD/14/425 the Labour Court awarded full retrospection to an employee who was working in a higher grade and was not receiving an allowance.  Another case was also highlighted, r-151321-ir14/ED where the claimant was not aware that he was entitled to a senior staff nurse grade in 2008 and applied in 2013.  He was awarded the upgrade with full retrospection.

Financial details were provided for the relevant years, 2009 – 2019 and the total amount claimed is €26,793.57

The employer raised a preliminary point whereby Section 13(2) of the Industrial Relations Act 1969 states:  “Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay … a body of workers) exists or is apprehended and involves workers within the meaning of Part Vi of the Principle Act, a party may refer it to a Rights Commissioner.”

It was submitted on behalf of the respondent that an almost identical case was submitted by the trade union on 05/09/2019 which was ultimately adjudicated on by the Labour Court in July 2020.  As the trade union incorrectly confirmed to the Labour Court that no other or similar claims were pending this is a collective matter and should not be dealt with as a dispute involving one worker.

In relation to the substantive matter the employer confirmed that the employee commenced work as a Clinical Nurse Specialist in September 2009 and was entitled to a Specialist Qualification Allowance on taking up this role.  A specialist qualification allowance must be applied for within 6 months of obtaining the qualification.  The employee did not make any application for the allowance until 2019 and was paid from that time. There is a process whereby an employee completes a ” Specialist Qualification Form”.  In a previous case involving the same employer the Labour Court made an aware due to the “unique circumstances” of that particular case.  The process in place for claiming the allowance has worked satisfactorily for all others. The onus is on the employee to make the application and the employee had access to the same information as others who applied for the allowance. It is unreasonable for the employee to seek 9.5 years retrospection.  There are time limits in place to ensure the orderly operation of the hospital’s budget.

In relation to the preliminary matter raised by the employer that this matter is a collective matter as it is a dispute involving more than one worker.  The employer makes a specific reference to a previous similar case involving the same employer which was before the Labour Court in August 2020.  However, the employer also states that a further “325 nurses are in receipt of the allowance at present”.  In that context the employer should be aware if there are other potential claims.  I do not accept that this dispute relates to a “body of workers” as envisaged by S.13(2) of the Industrial Relations Act, 1969. 

The core issue in dispute is the retrospective payment of Specialist Qualification Allowance to a nurse who was employed in that capacity in September 2009.  The employer asserts that it is the employee’s sole responsibility to submit a claim for the allowance while it was submitted on behalf of the employee that the employer was aware of her qualifications and entitlement to the allowance from the date she commenced employment.

Based on the employer’s submission I clearly understand that if an employee obtained a relevant qualification during the course of their employment then it would be logical that the employee would submit a claim along with the supporting documentation.  Indeed, the employers form specifically states “Individual claims for payment of qualification allowance must be made either within six months of award of a relevant specialist nursing qualification and/or assignment to a qualifying ward or unit.  Claims received after 6 months will not be processed retrospectively.”

This form and its contents have no relevance to the employee involved in this case.  Her qualification was obtained prior to commencement of employment and her contract of employment specifically notes her job title as “Clinical Nurse Specialist”.  The documentation provided by the employee confirmed that she had the relevant qualification. In circumstances where an employee is being recruited in a specialist role I do not accept that the employer can abrogate all responsibility for ensuring that the correct pay including any allowances due to the employee.  The employer seems to link the application of the allowance to their education policy.  There is no process to inform an employee on recruitment that they will not be paid the specialist allowance until such time as they make a separate application. 

I also find it difficult to understand why the employee did not become aware of the allowance for a period of ten years.  The employee cannot reasonably expect the employer to pay such an amount retrospectively. 

Having considered the matter and taking into account the submissions I accept that the employee is entitled to this allowance.  I understand that the process in place is not clear, particularly for new recruits.   I am recommending that the employee be paid for the last three years she was entitled to this allowance:  2017 and 2018: €2791 and 2019: €744 with the total amount being €6,326.

I am recommending that the employee be paid for the last three years she was entitled to this allowance:  2017 and 2018: €2791 and 2019: €744 with the total amount being €6,326.

Clinical Nurse Specialist.  Specialist Qualification Allowance.  Retrospection of payment.