Complainant

Respondent

Anonymised Parties

Clinical Nurse Manager

Hospital

Representatives

Mary Rose Carroll Irish Nurses and Midwives Organisation

Peter Flood IBEC , Brian O’Sullivan, Catherine Tobin

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-00034522-001

07/02/2020

The Employee is employed as a Clinical Nurse Manager. She worked as a Clinical Support Nurse from 12th January 2015 to 17th December 2017. She was remunerated as a CNM1 grade. She is seeking to have been paid at grade CNM2. The retrospective claim amounts to €9,934.44. The Employer has rejected this claim.  

At the first hearing on 6th April 2021 it emerged that two Employer representatives lost contact with the remote hearing and were unable to provide clarification needed. In view of that it was necessary to reconvene the remote hearing for 4th October 2021.

The Employee worked as a Clinical Skills Facilitator in the Emergency Department (ED) for the period 12th January 2015 to 17th September 2017. The post was advertised and remunerated at CNM1 Grade. At the time similar posts within the hospital were paid CNM2 and the post in currently paid at CNM 2 Grade. She raised this with her line manager and she was advised that management were working on upgrading the post to CNM2. This did not occur until September 2018, she was no longer in that post when this occurred. The union wrote to management on 12th September 2019 seeking retrospective payment at CNM2 grade to be paid for the period that she was in that post. This request was refused. On receipt of correspondence from the National HR Directorate confirming that CNM2 is the appropriate grade for the post, the union wrote to management seeking that they would reconsider their position. At a meeting on 21st January 2020 management advised that their position remained unchanged. The matter was referred to the WRC.

It is the union’s argument that the nationally agreed grade for the Clinical Support Nurse post is CNM2 by the Grade Number 2119.  All grades and role profiles are agreed nationally. It is not within the employer’s remit or right to unilaterally alter grades that have been assigned to a particular role profile. The Job Description for this role from 2014 and now are the exact same.

The National Emergency Medicines Programme, Office of Nursing and Midwifery Services states “The Clinical Skills Facilitator role is at CNM2”. The employee fulfilled this role whilst in the post.

At the time of her appointment other Clinical Skills Facilitators were remunerated at CNM2.

The WRC /Labour Court determinations have supported retrospective claims in the past e.g. CD/13/252, CD /14/425 CD/14/248.

The union stated that management supplied the incorrect job advert and Job Description to this hearing. They stated that they spoke with management who confirmed to them that their documents were correct and the ones supplied by management were incorrect. The Job Description is exactly the same as the other CNM2s. So, if the union Job Ad and Job Description are correct then management’s case must fail. The Employee reported to a CNM3 during this time. Everything that she did was the same as a CNM2.

The Employee stated that you can go from Staff Nurse to CNM2, the union official advised that she went from Staff Nurse to CNM2. What is required is five years’ experience as a Staff Nurse. The Employee reported to a CNM3 at that time. She fulfilled the role of CNM2.The Employee stated that when she was appointed to a CNM2 role it did not refer to managerial experience requirement. The union is seeking that the Adjudication Officer finds that when examining the data presented the Employee’s role and that of a CNM2 Job Description are the exact same.

She is seeking retrospective payment of €9,934.44.

The Employer stated that the employee was not recruited as a Clinical Facilitator, she was recruited as a CNM1 and so was correctly graded in January 2015. In January 2011 the WRC facilitated an agreement between the union and management in relation to Emergency Departments. This agreement makes specific reference to CNM1 and CNM2 roles and their responsibilities. The agreement states that the CNM1 role involves specific responsibility for the education, professional development and mentoring of staff to ensure staff meet the required competency to deliver on the required standards for patients accessing care via the Emergency Department pathway. The CNM1 reports to the CNM2. The CNM2 role in the ED has responsibility for the development of policies procedures and practices, in conjunction with hospital management to ensure best possible care. The CNM2 reports to the CNM3. In November 2014 management advertised the role of CNM1 in ED. The responsibilities outlined are the same as other CNM1 roles. The post reported to CNM2. In September 2019 the union wrote to management seeking the role to be declared a CNM2. This was rejected on the grounds that the role was properly graded. A comparison of role profiles for CNM2 and CNM1 were set out and they are different.

It is the Employer’s position that the role of Clinical Facilitator is graded at CNM2. The employee was not employed in such a role. A Clinical Facilitator involves supporting nursing staff undergoing formal education and training in ED. The Employee was never employed in that role and did not perform such as role. The advertisement at that time sets out clearly the job grade and the primary role for the job. The Employee reported to the CNM2. Her experience and responsibilities required in that role did not justify the CNM2 grade. Therefore, this claim is rejected.

Subsequently the Employer has accepted that the Job Add and Job Description supplied by the union were the correct ones. However, they stated that this does not change their position. The Employee did not have the required two years management experience to be graded CNM2. In reviewing the templates for CNM2 it does state that two years management experience is needed. At the time of application, the Employee was a Staff Nurse and the next stage would have been CNM1, to go to a CNM2 it would have meant two jumps. They stated that seeking an upgrade going back over five years is unacceptable and untenable. The claim is rejected.

I find that this matter was the subject of local discussion which were exhausted before the matter was referred to the WRC.

I note that the Employee’s case is based on data supplied, the Job Add and Job Description in support of their position.

I note that at the first day of hearing the Employer was relying upon data that was subsequently discovered to be incorrect and they accepted that the Employee had submitted the correct ones.

I note the subsequent arguments by management that accepting the correct data their position rested on the fact that there is a requirement for an applicant to have two years managerial experience which the Employee did not have.

I note that the Employee and their representatives clearly stated that that is not the case but there is a requirement for five years’ experience as a Staff Nurse and the Employee had that experience.

I find that an examination of the data does show that there is a complete similarity in the data.

I find that given that fact, it is clear that there is merit in the Employee’s case.

I find that the setting of responsibilities and grading rests with the Employer.

I find that there has been ambiguity exposed in this case, which was created by the Employer.

I find that this ambiguity must be resolved by the Employer.

I recommend that the Employer re-examines this case and the data supplied to this hearing.

I recommend that the Employer approaches this review in a sympathetic manner towards the Employee.

I recommend that the ambiguity created by the Employer must be addressed and that fairness should prevail.

I recommend that this review process should be concluded within six weeks of the date below. 

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