Complainant

Respondent

Anonymised Parties

Public Health Nurse

Health Service Provider

Representatives

David Miskell Irish Nurses and Midwives Organisation

none 

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-00031668-001

18/10/2019

The dispute relates to the non-payment of a specialist qualification allowance to a Public Health Nurse over a 6 year period.

The INMO made the following submission on behalf of the claimant:

Claim

The matter before you today relates to a  the Health Organisations refusal to apply the retrospective payment of the Specialist Qualification Allowance to the claimant  from September 2014 when she became eligible to receive the allowance, to 31st August 2019 when the allowance was applied.

The claim is being heard under the Industrial Relations Acts 1969-1990.

The following is sought in redress (calculation provided): €13,489.70

1.       Relevant Circulars

• Department of Health Circular 112/99, states that nurses up to and including CNM2/CNS level are entitled to be paid a Specialist Qualification Allowance when they are employed directly on duties in certain specialist areas where they possess the NMBI approved Category 2 course.  In 2002 the HSEA issued a follow up letter to this Circular to advise thatagreement had ‘been reached with the Nursing Alliance to extend payment of the Specialist Qualification Allowance to all specialist courses confirmed as Category 2 or equivalent by An Bord Altranais’ (NMBI)

·       CERS Memo 34/2020 of June 30th, 2020, states that PHNs who hold the paediatrics qualifications will be entitled to the qualification as per the above HSE 112/99 circular.

2.       Background

3.1 With effect from the 1st March 2002, payment of the Special Qualification Allowance (SQA) was extended to all specialist courses confirmed at Category 2 by the Nursing & Midwifery Board of Ireland (NMBI).

3.2 The claimant took up employment as a Student Public Health Nurse  with the respondent  in September 2013. Prior to this she undertook her General Nursing Degree in 2006 and subsequently worked in a Dublin Hospital. In 2011 the claimant undertook her category 2 NMBI Paediatric course in DCU and Temple street. 

3.4 The claimant applied for the Specialist Qualification Allowance in April 2019, prior to this she was advised by her Assistant Director of Public Health Nursing that she was not entitled to same.

3.5 The claimant sent an email to DPHN on the 29th April 2019 seeking application of the allowance; the manager responded by return seeking that the  ADPHN) would follow up with the claimant in regards to their Specialist Qualification. The claimant met with the ADPHN on the 9th of May 2019. The claimant stated to management that she was unaware that she should have applied for the allowance after her initial informal query.

3.6 On the 7th of June 2019 the DPHN contacted the claimant stating that they were seeking feedback from HR of how to commence the process of application of the Specialist Qualification. This seemed to indicate that the respondent had conceded the claim.                                                                                                                                                                                   

3.7 On the 8th of August 2019 the INMO intervened on behalf of our member and wrote to the employer seeking that the SQA for the claimant’s paediatric allowance be paid and the arrears addressed to when they first became eligible.

3.8 On the 9th of August email correspondence shows that Ms A   HR Manager for the respondent responded in the absence of the DPHN, she confirmed that Nursing Administration advised that the claimant met the criteria as set out by NMBI and the Circular 112/99. 

3.9 Following this correspondence, the claimant was advised as to the time limits to deal with issues once they left employment and it was agreed between the INMO and the respondent’s HR dept.  that as the matter remained unresolved locally the INMO would refer it to the WRC Adjudication Services to ensure that the claim remained valid.

3.10 The employer contacted the claimant on the 31st of October 2019 seeking that the claimant fill out a HR 104 form that needed to be completed to pay the SQA. 

3.11 HR contacted the INMO on the 27th of July 2020 to state that after further clarification nationally on the issue above that they would be processing the claimant’s claim in line with the 112/99 Circular. However, we have not received the applicable dates of retrospective payment. The HSE 112/99 circular has an effective date of the 1st of July 1999.

 4.The Union Argument

4.1Nothing in the original circular precludes the claimant from having retrospective application of    the allowance to September 2014.

4.2Despite the fact that management were aware that the claimant had achieved the specialist qualification applicable to the area she was working, they neglected to follow through and set up payment of the SQA.

4.3The respondent does not advise employees on completion of Category two courses, of their entitlement for the SQA to be applied to them or direct them to apply for this allowance.

4.4On completion of the PHN course the claimant sought informally to seek if she was entitled to the SQA and was advised that she was not, management made no attempt to advise her of her entitlement during the course of her employment, despite the claimant attracting the allowance as an Registered Children’s Nurse.

4.5 Other eligible PHN’s working in this area and elsewhere in the respondent’s employment have been paid the Specialist Qualification Allowance from the outset and the claimant should be treated no differently. Therefore, the respondent is already paying the SQA to the claimant’s colleagues in other areas without argument.

4.6There is an obligation on management to advise staff members of their entitlements and have a process in place to ensure they advise all employees of same.

4.7In 2008 the requirement to have the Midwifery qualification to enter PHN training was removed. From this time the respondent’s policy position has been that PHNs who had a qualification, other than Midwifery, were eligible to access the SQA. The respondent has identified the Registered Children’s Nursing qualification as an eligible standard that should attract payment of the SQA. This is recorded in the attached Memorandum from the respondent.

4.8The Community Care Area is accepted as a specialised area attracting payment of the SQA where a PHN or Community RGN holds a course confirmed at Category 2 by NMBI. It is not a requirement that a Nurse is employed on duties relevant to their qualifications during all of their working time. For example, a PHN with a Midwifery qualification is paid the full allowance when employed on duties with male patients or elderly patients.

4.9The Claimant sought application of the SQA as she was eligible for same, and she was bringing her skills, experience and expertise as a RCN to her PHN role, thereby adding extra value for children and parents of children in her care.

Calculation

Specialist Qualification Allowance as per the agreed national agreement: €2,791.00 per annum and €3,349.00 (post LRC Recommendations 21900 and 21901 March 1st, 2019)

Retrospection: 4 years and 9 months

€2791.00 x 4.4 years =   €12,094.30 

                    +5 months =               € 1,395.40

Total =                              €13,489.70

Conclusion

Having regard to the foregoing, the INMO request full arrears for the claimant.

The respondent’s representative submitted as follows:

The claimant was an employee  with the respondent  from September 2013 to the 31st August 2019. She worked in the area of Public Health Nursing.

Background

In April 2019 the claimant applied to her line manager for the Specialist Qualification Allowance. This matter was addressed by management, however, there were queries raised on her entitlement. This matter was confirmed by Human Resources and the claimant was advised that the matter was being addressed.

The respondent wrote to the INMO on the 27th July 2020 (Appendix I) confirming that the claimant ’s Paediatric Specialist Qualification Allowance would be processed in line with CERS memo 34/2020. (Appendix II)

Respondent Position

The claimant will receive her entitlement to the Specialist Qualification Allowance as per Department of Health Circular 112/99.

It emerged in the course of the first hearing that while agreement in principle had been reached to pay the allowance to the claimant , the parties were polarised with respect to the matter of an effective date with the respondent submitting that they were bound by the provisions of Circular 44/2020 which referred to an effective date of the 1st.January 2020 while the union maintained that the claimant was entitled to payment with effect from the date she acquired the qualification in 2014.The union submitted that the circular was not an agreed document and was issued unilaterally by the respondent without any engagement with the union. The union further submitted details of individuals on all fours with the instant case who had received full retrospection   in other areas within the employment.

In a post hearing submission, the INMO contended that

“Prior to this matter being raised with the respondent the allowance was paid to those in possession of a Paediatric Qualification in a large number of areas and accordingly the INMO does not accept that memo 44/20 has the effect of limiting the retrospection payable to the claimant.

……………The reliance by the respondent on a memo that post-dates the claim is unfairly prejudicial to the complainant and such a memo cannot reasonably be deemed to have retrospective effect.

In summation, it is our contention that the claimant is legitimately entitled to full retrospection to the date that she became eligible for the allowance”.

I note that the respondent has not disputed the claimant’s contention that when she raised the matter of payment of the allowance with her line manager, she was advised that she was not entitled to the payment apparently on the basis that the allowance was not paid to nurses in that part of the country. I further note the union’s contention that the complaint should not be defeated by virtue of the contents of a unilateral circular which post dated the referral of the complaint to the WRC. It is clear from the evidence presented at the hearing that had the claimant been assigned to another area of the country, she would have been in receipt of the allowance from the date of qualification. I note that the respondent’s initial circular 34/2020 refers to the application of the allowance being “subject to the conditions set out in Circular 112/99- which states “It will be a matter for the employer to decide whether or not a nurse is engaged in a specialist-on-specialist duties”. The circular further states that “Arrangements will be made to review the allowance system including locations, qualifications and payments on a bi-annual basis in the future within the overall framework of reconciling payment systems and service requirements. “One would have to conclude from the foregoing that the onus for ensuring adherence to the provisions and review provisions of this circular rested with the respondent. In light of this and given the persuasive evidence presented by the union of retrospective recognition being conceded elsewhere, I am upholding the complaint.

I recommend in full and final settlement of this case that the claimant be paid the allowance retrospective to her qualifying date in 2014.