Worker

Employer

Anonymised Parties

A Clinical Nurse Manager 2

A Specialised Service

Representatives

Colm Porter and Kathryn Courtney  Irish Nurses & Midwives Organisation

Lisa Maloney, IBEC Executive

Act

Dispute Reference No.

CA-00053126-001

Date of Receipt

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

IR - SC - 00000727

06/10/2022

On 6 October 2022, the Union submitted details of dispute between the worker, a Clinical Nurse Manager 2 at a Specialised Service, and her employer.

The claim centred on the pursuance of a 2006 application for a Specialist qualification allowance, which had been overtaken in part by the addition of a location allowance.  

The claim is disputed by the Employer, who is represented by IBEC.

Both parties filed helpful submissions and both parties participated fully at hearing as I sought to investigate the claim and decide whether I could make a Recommendation in the case?

I am grateful to both parties for that high level involvement.

At the outset of the hearing, mindful of my time working as a Trade Union Official for the INMO 2001-2015, I flagged this to the parties and asked if either party had an objection to my hearing the case?

In the absence of an objection, I pressed on with the hearing.

The Worker is a Clinical Nurse Manager 2 aligned to the Employers service since 2005, when the service she worked in since 1999 had been taken over.

Following review of the services in 2006, she was appointed as Co Ordinator / CNM2 with responsibility for service user care plans and training.

The Worker undertook a higher diploma in multiple and complex disability studies, which concluded in September 2006. At this point, she enquired from the then Human Resource Department whether she was eligible for a Specialist Qualification allowance? The worker, already in receipt of location allowance, was “incorrectly informed “that she was ineligible, due to her CNM2 status.

In January 2021, the worker learned that staff engaged in like work with her were in receipt of the specialist qualification allowance. This prompted her to action another application, which was successful and backdated to January 2021. The worker then chased the historical differential in retrospection between location allowance and specialist qualification allowance back to 2006.

This figure is calculated as €13, 697.87 and has been put forward as the preferred resolution of the dispute.

In an unintended error, both allowances were paid simultaneously from January 2021 to August 2021. The Union has included a reconciliation of this amount to address this error in the above figure.

The parties have made some attempt to resolve the matter locally, prior to referral to the WRC on 6 October 2022.

The Union contends that there was a communication lag on completion of the higher diploma in 2006. They argued that the worker was not informed of eligibility, nor was there a formal application process in place at that time.

The Union submits that the relevant national DOHC circular 112/99 permits the payment of the allowance. They contend that in 2002 a follow up letter issued permitting payment of allowance in respect of “Category 2 or equivalent specialist courses “The workers higher diploma is included in the qualification criteria.

The Union placed ADJ 24856 and r-120837-ir-12/JT on the record as analogous cases, which awarded retrospection.

The Union confirmed that there was an operative disjointed approach at play in the case, where the course was paid for at university level, study leave granted at service level, but no clear facility available for an automatic reward of the specialist qualification allowance on successful completion of the course.

The Worker has been placed at a disadvantage by this approach and had been denied reward for her acquired expertise by the employer. She had also been overtaken by a classmate on the course who had received the SQA from day 1 qualification.

During the course of the hearing, the worker submitted a copy of her qualification and some papers arising from her classmate’s application for SQA. As these were in addition to the main submission, I copied them and shared with the employer for comment.

The Union sought full retrospection.

The Employer operates a Specialised Service and has rejected the claim made.

The Employer gave a historical context to the worker joining the service through TUPE in 2005.

The Service is a Section 38 Voluntary Agency which provides specialised support across a large geographical area and is governed by a Service Level Agreement with a large public body. Employees are generally considered to be public servants and are employed in accordance with public sector terms and conditions of employment, inclusive of mobility through redeployment.

The Employer exhibited an unsigned copy of   contract of employment for the position of Co Ordinator, dated May 2007.

The Employer outlined that the worker completed the higher diploma in 2006. The Employer contended that receipt of a specialist qualification may allow for payment of a specialist qualification allowance payable to nurses directly on duties in speciality areas appropriate to the qualifications listed in paragraph 4 of the HSEA document attached to DOHC Circular 112/99.

The Employer contends that the onus of responsibility lies with the eligible nurse to apply in a timely manner. The Employer has not got any proof of application for this allowance in 2006 or since until January 2021. The Employer added that no real time grievance followed the workers recollection of being told she was ineligible in 2006.

The Worker applied for the SQA in January 2021 and the application was deemed successful with retrospection paid to date of claim, January 2021.

On June 3, 2021, the Worker pursued retrospection to date of qualification in the higher diploma in 2006. The Employer could not accept this position and contended that the rightful concession of the claim was framed against the date of claim.

The Union took up the matter from that point and sought to place a stay on the overpayment made to the worker.

The Employer confirmed that it was not their intention to seek reimbursement of the overpayment in November 2021. The matter was subsequently referred to the WRC a year later.

The Employer contended that they met the claim first requested in January 2021, with arrears paid to date of claim.

There is simply no organisational record internally at the service or from the workers own file of an earlier application.

The Employer was clear that a 15-year lag in action in this claim, without recourse to the grievance procedure made the matter untenable at the service, which had no hope of receiving retrospective funding from the sponsor, outside of the service level agreement.

In response to the late addition documents produced at hearing, the Employer remarked that the recipient of an earlier SQA was not present at hearing. The Employer submitted that the worker had forsaken the approved disputes resolution mechanism open to her by not actioning a grievance in 2006 or since.

The Employer sought that the case be dismissed.

In conducting my investigation, I have considered all relevant submissions presented to me by the parties.

My role in this case is to investigate the dispute submitted. If I find merit in the dispute, I must make a Recommendation to the parties.

In this case, I am mindful that this is a live working relationship.

This is a claim for retrospection of a specialist qualification allowance from 2006 to January 2021. The amount claimed is ameliorated by a concurrent duplicate payment of a location allowance.

 I was struck by the genuine approach adopted by both sides at hearing. Both parties engaged fully in the investigation.

 The Employer representatives outlined they were not employed at the service in either 1999 concurrent with the release of Circular 112/99 (dated November 1999) or on the 4th of September 2002 on the release of the confirmed expansion of the criteria for paying this allowance to “category 2 or equivalent by an Bord Altranais “to March 1, 2002.  The Union outlined that the worker had been present across two services during this time.

I can appreciate that it is difficult to judge a claim for retrospection through that lens.

However, the claim is live and must be investigated.

My next stop has been a careful consideration of the workers arrival to the employer service through TUPE in 2005 and her commencement on the higher diploma course. I asked the worker when she started the course as I wondered whether the approval had predated or postdated arrival at the employer’s service? In other words, was it incorporated in the due diligence which accompanied the TUPE in 2005?  

The worker was unsure but was clear that she had concluded the course before the end of 2006 as depicted on her University Diploma.

For the employer’s part, they had no earlier record of the preparatory work prior to course commencement or additional qualification prior to 2021.

I probed both parties on the process surrounding approval of the course, sanction of time off and eventual record of achievement.

 I learned that this process was partisan.

1 Approval to participate in the course was given from a central professional development unit external to the employer but operated by the sponsor.

2 The course was conducted in the University.

3 Time off was given by the employer.

4 I could not identify a requirement or action plan to submit a qualification at the conclusion of the course or a course of action if a candidate was unsuccessful.

I was concerned by the clear lack a co ordinated approach to this additional training, which I believe is an intrinsic historical element in the Dispute.

Crucially for me, I could not identify a universally pertinent application form for the specialist qualification allowance. This would have provided a transparent administrative pathway for me to follow the threads of events submitted by both parties.

This prompted me to consider the workers contract of employment issued by the employer in 2007. It was silent on payment of a location allowance, but did have a clause on pay, which stated:

“This (salary) will be adjusted in line with any applicable nationally negotiated increase for your grade “

It is clear that this contract binds the parties to nationally agreed pay increases.

It is clear that the specialist qualification allowance is payable up to CNM2 grade, Circular 112/99 emerged in the aftermath of a National Nurses strike and must be respected in that vein.

This Circular outline that the decision-making authority on application of the allowance falls to the employer to decide on “whether or not a nurse is engaged in a specialist area on specialist duties “

The Employer in this case has accepted this responsibility but has contended that they were not asked to decide until January 2021 and when they were, they granted the allowance as claimed.

However, there is another context and background to the case. In the workers contribution to the hearing, she confirmed that she had been fulfilling the identical role as now during the lifetime of her claim. Her classmate, who sat beside her on the course had received the specialist qualification. She argued that a chance encounter led her to this disclosure.

This was not disputed by the Employer. The Employer explained the approval process conducted by the employer in 2021. I gave the employer time post hearing to make any submissions they wished in relation to the late addition documents. None were forthcoming.

I asked the employer if they had been requested to participate in the costing document referenced in Circular 112/99? The Employer was not aware of any such process then or now.

I have considered the Employer strongly held contention that by not utilising the workers own grievance procedure, she had not been pro active in resolving her claim. They confirmed that there was no mechanism available to seek a reconciliation payment from the sponsor of the service to cover retrospection.

The Union position reflected that an early rejection on eligibility by a now retired HR person in 2006 deterred any further action by her until she made her chance discovery of her colleague’s retention of the allowance.

I have thought about this. There is no doubt that the gap in time from 2006 to 2021 is an enormous consideration for both parties.

I fully accept that the worker should have actioned a grievance in 2006. It is unusual that it was missed in the annual performance reviews conducted as per contract. I appreciate that the Employer has remarked that nursing is a small cohort at the service, however, given that approval seems to emanate from nursing, it is something that ought to have featured in a much earlier performance review.

However, I find that the lions share of responsibility much lie with the employer in treating all employees who undertake the same course, on the same sponsorship programme, in the same University in accordance with the same national circulars, particular to their grade, in the same and equitable manner.

What is missing in this case is a foundation document on which a candidate can apply for the allowance consistent with the completion of their course. It was not present in the service in 2006 and it is not present today.

I have considered all parties oral submissions and find that I believe the worker when she told the hearing that she requested access to the allowance on completion of the course and was discouraged when she was informed of her ineligibility. I accept that she should have pressed on to action a much more robust pursuit of the allowance as demonstrated by her in 2021. I appreciate that the 2021 energy is informed by her perceived inequitable experience.

  However, I have not been given a sufficient reason from the employer on the variance in the approach adopted by the service to Ms A, the classmate, and the worker.

If I am looking through the lens of what is fair and reasonable, I must find that the worker was left behind unnecessarily when she requested access to the allowance on completion of her course in 2006.

I have considered the historical cases put forward by the Union in this case and can see some analogy there, albeit the background circumstances differ.

I am struck by the lack of reasons given for refusal to grant the retrospection by the employer. As a public body, they have a duty to give reasons for any decisions made.

However, I have found a helpful reference point in the submitted ADJ 24856 at 3.10. This was a 2021 case involving a claim for the same allowance in a community setting. My colleague, Ms Emer O’Shea recommended concession of retrospection to the qualifying date in 2014.

In that case, the employer had contacted the claimant on 31 October 2019, seeking the claimant fill out a HR104 form that needed to be completed to pay the SQA.

This, at a very minimum suggests that the employers sponsor operates a mechanism on which application for a specialist qualification allowance can be made.

I have shared my unease surrounding the disjointed approach to administration of an augmented educational qualification in this employment. The objective of additional qualifications must be viewed as beneficial to the recipient and the service they work in.

This may have been a legacy of an incomplete due diligence prior to TUPE. I note the gap in time before a contract was raised in 2007.

However, the course was completed by the worker by year end 2006 and did not attract additional remuneration. Both parties accept that the classmate, named but not present at hearing, was paid the SQA. The additional documents presented at hearing seem to place her application to 2008 -2010.

 Both parties accept that the worker was present in the same role 2006 to 2021. She was sanctioned for the allowance in April 2021 within that role.

There is no information before me on whether an application for payment of the allowance has ever been submitted to the sponsor prior to or during the refusal to grant retrospection.

There is a clear inequity in how both classmates on the higher diploma were treated by this employer.

I have found merit in the dispute.

Payment of a Special Qualification Allowance