Worker

Employer

Anonymised Parties

Public Health Nurse

Public Health Service Provider

Representatives

 Irish Nurses and Midwives Organisation

 HR Manager

Act

Dispute Reference No.

Date of Receipt

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

IR - SC - 00000280

19/05/2022

This dispute is concerned with the date of application of an allowance for an additional nursing qualification-in this case a paediatric nursing qualification.

The Employee is a Public Health Nurse who commenced employment with this Employer on 29 October 2010. She has three registered nursing qualifications: General; Children’s and Public Health. In the course of her work, the employee provides care to people in the community across the age spectrum. As the Employee transferred from nursing in another country, she was unaware of the existence of an entitlement to be paid a specialist nursing qualification in respect of her paediatric nursing qualification. When she became aware of that allowance in 2019, she applied for payment. The application was rejected on 30 December 2019 on the basis that it applied only to those with a midwifery qualification. The matter was subsequently raised with the Head of Corporate HR who issued a memorandum 34/20 clarifying that the specialist allowance was payable to those who hold paediatric allowances. In September 2020 the INMO wrote on behalf of the Employee seeking payment of the allowance. Another decision maker again rejected the claim determining that Public Health Nursing is not a specialist area. This decision was appealed. In the meantime, another memorandum was issued by Corporate HR directing that the allowance be paid to those community-based nurses who hold the paediatric qualification. Finally following a threat of referral to the WRC, the allowance was paid from 1 January 2020 as confirmed on 7 March 2022.

The Employee should be paid the allowance (less a location allowance recommended by the Labour Court in 2019) retrospective to the date of employment in 2010. Failure to pay retrospectively to that date was described as erroneous and reference was made to another AO Recommendation-ADJ-00024856 which applied the allowance back to a commencement date in 2014. In 2008 the requirement to have a midwifery allowance was removed. Other eligible PHNs who do not hold the midwifery qualification received the specialist allowance from that later date. That right was further reinforced in circular memo 34/2020. The right of the employer to determine whether an employee is performing the duties associated with the additional qualification does not give them the right to deny an employee the allowance on a whim.

In response to the employer submission on the subject of exchanges between the Union at National Level and the Employer at Corporate Level representing an agreement to an implementation date of 1 January 2020, this was denied as confirmed with the INMO National Official in a sidebar at the hearing. What issued as 44/2020 was a unilateral memo and not an agreed circular.

The stance of the Employer in refusing the allowance when requested in 2019 and subsequently was in line with the terms of Circular 119/99. CERS memo 34/2020 clarified that the allowance was to be paid to those with a paediatric qualification within the discretion allowed to the Employer in 119/99. In May 2021 the Employer confirmed that the allowance would be paid based on 34/20 less the difference in the location allowance which is the lesser of the two payments. Further clarification was provided in memo 44/20 which gave1 January 2020 as a date of payment of the allowance to those with a paediatric allowance and that date was applied to the Employee in this dispute.

This issue was the subject of engagement between the INMO and the Employer at national level. A copy of correspondence of 8 October from the Union to the Corporate HR Manager was provided at the hearing. In that correspondence the Union again sought that managers would be reminded of the terms of payment of the allowance. A subsequent memo 44/20 was issued containing a date of application of the allowance to paediatric nurses of 1 January 2020. While the submission was a little confused between the circulars and dates-the point made was there was no objection to that set date of 1 January 2020.

This is a national issue affecting a category of workers and the WRC has no jurisdiction in the matter.

The first point to be made is that I have no doubt that in relying entirely on circular 112/99 in their responses to the Employees request for payment of the allowance was entirely incorrect. There was a sole reliance on the midwifery allowance in those responses. I am satisfied that this point was conceded when the terms of the circulars of 2002 and 2008 were put to the relevant manager at the hearing. Furthermore, I cannot see any reason why it took almost two years after the memos of 2020 which management now want to rely on to make the payment to the Employee. 

The positions which I have to decide between are, whether the management are entitled to rely entirely on January 2020 as the date of effect of the change, in which case I would be accepting that this is in effect a group issue where a number of people were affected by the terms of the same memoranda which followed discussions with the INMO. If I decide this is in effect a group issue, then the case made on behalf of the Employee must fail.

Or, alternatively, am I to be swayed by the terms of another WRC AO recommendation which resulted in six years retrospection to the date of commencement and was not appealed. Incidentally since the hearing of this dispute, I note that another AO considering the application of the allowance for a different discipline, recommended a role profile review. However, that case appears to differ from this one in that there appears to a be a dispute as to the application of the terms of the circular of 112/ 99 on grounds of the work performed-whereas the management in this current dispute failed to recognise or to apply the terms of the circulars of 2002 and 2008 by insisting on limiting eligibility for the allowance to those with a midwifery qualification.

Having reviewed the dates of referral of the disputes in ADJ-00024856 and this dispute I note that the earlier case was referred to the WRC in 2019 when there was no memo in place setting the date of 1 January 2020 as the date of application for those covered by memorandum 44/2020, whereas the current dispute was referred to the WRC in May 2022 after the Employer had agreed to apply the terms of memorandum 34 and 44/2020 and set a specific date in number 44. This dispute therefore represents the appeal of the application of a national memorandum affecting a body of workers and therefore cannot succeed as an individual dispute under the Industrial Relations Act. I cannot accept that Head of Corporate Relations felt compelled to issue not one but two memoranda in the one year on the same subject, if only one person was to be affected by their terms.  The union may correctly say they did not specifically agree to the date contained in the memorandum of 44/ 2020, but neither did they object to it as has been pointed out by the Employer representative in this case. Indeed, the correspondence of 8 October 2020 refers to engagement on that very morning on the subject of 34/2020 and simply asks that the Head of Corporate Employee Relations ensure that the remaining reluctant enforcers of such memos and circulars would be told(again) about the application of the allowance to those with paediatric qualifications. In terms of the weight of the respective arguments about what was ‘agreed’ and what was not, I find the position of the Employer carries more weight in this argument on the accepted norm that silence means consent in such matters. That said, if there is a dispute about a date in national memo following discussions between the parties, then that is a national issue and not one for deciding in an individual case.

In the circumstances I find that the Employee in this case is comprehended by the terms of memorandum 34/44 2020 as part of grade group or category and not as an individual with distinct rights for preferential treatment outside of the terms of that memorandum. As such I do not have jurisdiction to issue a recommendation on the substance of the dispute.

Specialist allowance Nursing/retrospection