Complainant

Respondent

Parties

Elizabeth Keywood 

An Garda Siochana

Representatives

 Sarah Hearns IRO

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00055098-001

14/02/2023

The Complainant is an occupational health nurse who has worked for An Garda Siochana Siochana since June 2010.

The Complainant argues that she was recruited to this post on the HSE’s CNM2 pay scale and various pay and allowance increases she is entitled to were not paid to her and that these constitute an unlawful deduction of her salary.

The Respondent argues that she is incorrect and that she was recruited to the civil service Occupational Health Nurse scale. This is set out in both her contract of employment and onboarding letter

In 2010 the Complainant left a role in the private sector to join the Respondent. This role was pegged to the CNM2 scale.

When applying to the post she engaged with the Respondent and agreed her terms and conditions. She negotiated a specific point on the scale (point 3) rather than start as a new entrant on point 1.

When she was onboarding, she was clear that they were discussing he CNM2 scale. Dr Quigley who had interviewed her later acknowledged in an email that the Occupational Health Nurses were appointed at CNM2 and that they had management responsibility.

She did try and get a copy of her HR file she was told at first that it was being copied and then that it had gone missing.

The Respondent has since resiled from this position and applied a different pay scale. She is owed two backdated pay increases which were due in October 2022 and March 2023 totalling €2160. These arose from the Building Momentum agreement. The Complainant referred to a number of INMO and HSE circulars. She believes that she did start on the CNM 2 salary scale but over time there was some mistake, and she was put on a different scale.

She is in receipt of a qualifications allowance which closely matches the HSE scheme. She had to apply for the allowance in the same way HSE staff do.  The Respondent gave her the exact amount of the HSE qualification at first. From 2012 increases were secured to the Qualification Allowance by the INMO however the Respondent did not pay apply them to the Complainant’s allowance.

She calculates that the total backdated increases owing to her are €6018.  She believes that she and her colleagues are such a minority that they are overlooked when the allowance and wage increases are applied.

The Complainant refers to the Respondent’s 2023 booklet. It states on the cover that they’re recruiting for CNM2/ CNS role but then contains the Occupational Health Nurse pay scale.

The Respondent hired the Complainant as an Occupational Health Nurse which is a civil service grade and paid her at the salary scale relating to that role.

She has never been paid at the CNM 2 grade and at no time has her pay corresponded to any point on the CNM2 pay scale. HSE circulars and agreements do not apply to the Complainant.  

As a civilian member of staff with An Garda Siochana the Complainant is a civil servant and her contractual terms of employment relate to the Civil Service regulations and circulars, rather than those of the Health Service Executive. 

She is in receipt of the Specialist Allowance since 2011 when she achieved her masters. This allowance applies to civil servants and is entirely different to the Qualification Allowance paid by the HSE to its staff.

The Respondent’s pay is set by DPER. They referred to a number of communications with DPER as to the relevance of the outcome of the nursing and midwifery bargaining unit outlined in the Building Momentum agreement dated January 2023. DPER was clear that the nursing and midwifery increases only apply to nurses employed in the health service.

The High Court in Marek Balans v Tesco Ireland Limited [2020] IEHC 55 outlined that in interpreting this act, it first must be established which wages which were properly payable to the employee before considering whether a deduction within the meaning of the Act had been made.

If it is established that a deduction within the meaning of the Act had been made, I can then consider whether that deduction was lawful.

When the Complainant joined the Respondent, she did so as a civil servant. This is outlined in her contract of employment. Her letter of appointment also identifies that she was appointed under point 3 of the Occupational Health Nurse Scale. She was not appointed on the CNM2 scale which does not exist within the civil service.

I do think it is likely that, in seeking to recruit the Complainant, someone in the Respondent suggested that she would be on a similar terms and conditions to the CNM2 scale. I note that this issue has persisted and that the candidate booklet for the Respondent’s 2023 competition for the Complainant’s role is titled Occupational Health Nurse, CNM2/CNS Level.  This booklet goes on to provide the Occupational Health Nurse terms and conditions. I also accept that at times the Respondent tried to fix the Complainant and her colleagues with the responsibilities of a CNM2 nurse. These would seem to be powerful arguments in favour of the Complainant and her colleagues obtaining pay parity with the CNM2 grade via an industrial relations process.

However, this does not change the fact that the pay and allowances of nurses employed by the Health Service Executive have absolutely no bearing on the pay and allowances of nurses employed by An Garda Siochana, in any legal sense. They are two different employers.

In fairness to the Complainant, I do not think that this situation is always known to individual public sector workers. Most people think of the public sector a single entity and do not distinguish between public servants and civil servants.

The Respondent has added to this lack of clarity by, at times, referring to the CNM 2 grade in a way that is interchangeable with their own Occupational Health Nurse grade. Despite this confusion the Complainant has failed to establish that she is employed on a totally different contract and salary scale to the one set out in her contract of employment and onboarding documents.

In these circumstances I cannot find that there is any breach of the act.

I would add as a caveat, that in interpreting the relevance of the Building Momentum agreement in this decision, I was entirely reliant on the Respondent’s emails with DPER. The Complainant was not represented by the INMO or SIPTU so no union position on the scope of the agreement was put before me.

The complaint is not well founded