Worker

Employer

Anonymised Parties

Assistant Director of Nursing

Health Service Provider

Representatives

Niall O Sullivan Psychiatric Nurses Association (PNA)

 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 - 00001307

21/04/2023

The Worker was seeking reinstatement of a specialist qualifications allowance that was removed from him in 2004 due to his appointment/promotion to the Assistant Director of Nursing role.

The Worker commenced his training to be a Registered Psychiatric Nurse with two different hospitals upon completion of his studies in October 1993. The Worker took up a temporary contract post as a nurse in until February 1997 when he moved to Dublin to gain permanent employment.

The Worker then moved to work with in the NHS at Cambridge Mental Health Services in Addenbrookes hospital. While working in Addenbrookes Hospital the Worker completed the ENB 998 (Teaching and Assessing in Clinical Practice Diploma) from Cambridge University.

In January 2001 having attained the position of a Deputy Charge nurse (F grade) the Worker returned to Ireland where he accepted a position in a specialist Hospital.

While employed in the specialist Hospital the Worker was in receipt on the

Qualification Allowance in recognition of his qualification ENB 998 (Teaching and Assessing in Clinical Practice Diploma) as this course was deemed to meet the criteria agreed as settlement of the nurses' dispute in 1999. During his time there the Worker undertook further studies in Trinity College and attained a Forensic Nursing Certificate, an Honours degree in Nursing (level 8) and a Post graduate diploma in Clinical Practice (level 9).

In 2004 after the offer of a Clinical Nurse Manager 2 post the Worker moved to west of Ireland. During his time there he took up long-term acting positions as Assistant Director of Nursing from 2008 to 2017 before being permanently promoted in 2017 to his current Assistant Director of Nursing post.

After moving, it took the Worker a while to adjust to his new role as a Clinical Nurse Manager 2 as well as the stress of moving home so some time passed before he was aware he was not being paid the qualification allowance he had been granted working in the specialist Hospital however once he became aware the Worker made numerous informal enquiries to have it reinstated to no avail.

On the 24th April 2008 the Worker wrote to the Assistant Director Nursing requesting the reinstatement of the qualification allowance he had previously enjoyed, supported by the additional qualifications he had achieved since it was first granted to him in the Specialist Hospital.

The Assistant Director met with the Worker on the foot of this correspondence and informed him that only Addiction Counsellors received the Qualification Allowance in their location, unfortunately the Worker accepted this information in good faith and did not pursue the matter further at this time. It wasn't until August 2017 when in a joint/union management forum Mr Rory Kavanagh, Industrial Relation Officer with the Psychiatric Nurses' Association, highlighted to senior managers in attendance that there were nurses not receiving the Qualification Allowance who met all the criteria, the Worker who was in attendance at this meeting realised he had been misled.

Following this meeting the Worker wrote to the Acting Area Director of Nursing, on the 4th of August 2017 asking for his Qualification Allowance to be approved as he was now aware of colleagues who were in receipt of the allowance.

On the 6th August 2017 the Acting Director responded to state if the Worker's course met the category 2 criteria and as it was a level 9, he did not see any blocks to him receiving this allowance.

On the 28th February 2018 the Worker wrote to the Nursing and Midwifery Board of Ireland (NMBI) seeking confirmation that his Post Graduate Diploma qualified as a category 2 course. On the 10th April 2018 the NMBI responded to confirm the course he had completed had category 2 approval.

On the 18th June 2018 the Worker wrote to the Area Director of Nursing to again request payment of the Qualification Allowance supported by his letter from the NMBI and a breakdown of what he was due.

On the 25th June 2018 the Worker wrote once again to the Director to request payment of the Qualification Allowance as he had previously been in receipt of it and that the previous Acting Director had inferred his claim would be looked at favourably once he could prove the course met the criteria.

On the 19th July 2018 the Worker received correspondence to tell him his claim for payment of the Qualification Allowance had been forwarded to the Acting Head of Service at this time for approval.

On the 4th September 2018 and the 28th September 2018 the Worker wrote to the Acting Head of Service regarding his claim but received no responses. Following several telephone calls from the Worker on the 1 st November 2018 the Worker received correspondence from the Director requesting additional information to support his claim.

On the 7th November 2018 the Worker responded to the Directors letter correcting the date of application and provide the information requested.

On the 14th December 2018 the Worker wrote to the Director requesting an update on his claim and to state the omission of the allowance since 2004 was very unfair.

The Worker once again wrote to the Director on the 14th April 2019 requesting an update to his claim as he had not received responses to his earlier emails.

On the 27th September 2019 the Worker again wrote to the Director as he had still received no responses to his earlier correspondence to once again request an update to his claim and advise that he had previously been in receipt of the Qualification Allowance only for to be incorrectly omitted from his salary upon commencing work for the Employer West.

With the outbreak of the Covid19 Pandemic the Worker set aside his claim to address the immediate needs of the service but on 23 rd March 2022 as the crisis abated the Worker again submitted his claim for payment of the Qualification Allowance under the Employer Grievance Procedure.

On the 5th April 2022 the Worker met the Director accompanied by his union representative under Stage 1 of the Grievance Procedure. On the 8th June 2022 the Director issued her decision to not uphold the Worker's grievance.

On the 12th September 2022 the Worker wrote to the Head of Service, to appeal the Director's decision under Stage 2 of the Grievance Procedure.

The Worker met the Head of Service under Stage 2 of the Employer Grievance Procedure on the 27th September 2022 but did not issue his decision until 22nd February 2023.

Despite the Worker giving numerous examples of how he met the criteria for payment of the Qualification Allowance the Director decided not to uphold his grievance after consulting with the Area Director of Nursing who had heard the Stage 1 Grievance.

On the 21 st March 2023 the Worker wrote to the Employee Relations Manager, appealing the Directors decision.

On the 4th April 2023 the Worker met the Employee Relations Manager under Stage 3 of the Employer Grievance Procedure accompanied by his union representative.

The Employee Relations Manager issued his determination on the 6th April 2023.

He did not uphold the Worker's grievance and the Representative believed his reasons for not upholding the Worker's grievance were due to a flawed understanding of the Employer Grievance Procedure and an attempt to conflate the Worker's claim to have an allowance he previously had reinstated with other national agreements.

The Representative alleged it was clear the Worker l s claim for payment of the qualification allowance has been frustrated from the outset, having been in receipt of the allowance in the Specialist Hospital the allowance was removed without explanation when he commenced his employment in the Employer West Region.

The Worker was misled in 2008 when he pursued his claim for the allowance and there has been clear efforts to frustrate his claim since 2017 by not responding to correspondence even after the Worker began his claim using the grievance procedure it took a year for his grievance to progress to stage 3.

The Acting Area Director of Nursing in his correspondence intimated the Worker would be successful in his claim for the Qualification Allowance if he could verify it was a category two course, which he did, it is therefore appear grossly unfair that a change in personnel would lead to a completely different outcome.

In her decision in Stage 1 of the Grievance Procedure the Director made several erroneous and subjective statements when making her decision, she claimed the payment of the Qualification Allowance in the specialist Hospital was because it is a specialist service in forensics.  This is incorrect;  the allowance was paid because the Worker was involved in the mentoring, teaching and assessment of students in the specialist Hospital because of his ENB 998 qualification attained in the UK, the Director further goes on to say that providing a quality learning environment for student nurses is an integral part of the role and responsibility of a CNM2 ignoring the fact that the Worker was doing more than this due to his qualifications in Teaching and Assessing in Clinical Practice.

The Director in her determination did not challenge the Worker's claim he was using the ENB 998 in his everyday work it therefore seems unfair the Worker should be awarded the allowance for using this course in one part of the Employer only to have a disallowed in another part due to a manager's subjective interpretation of the role of a CNM2 and her decision to ignore the criteria set out in the Employer circulars.

The Representative alleged that it could be seen from the minutes of the Stage 1 grievance meeting the Worker went into great detail on the plethora of other things he has done that were not part of a CNM2 role but were possible because of his additional qualifications however the Director chose to ignore these in her determination.

In the Directors determination he acknowledged the Worker's use of risk assessments learned in his forensic course, another specialist role, however, the Director determination was tainted by his decision to consult with the person who had heard the stage 1 grievance therefore negating the independence of his decision.

The Employee Relations Manager in his decision refers to a procedural issue with the Worker's use of the Employer Grievance Procedure to further his claim although no such issue was raised in the Stage 3 meeting.

In any event the Employee Relations Manager's interpretation of the Worker's request for payment of the Qualification Allowance is incorrect as this is not a collective dispute but merely an attempt by the Worker to have an allowance he previously had reinstated.

The Employee Relations Manager references a passage from page 3 of the Employer Grievance Procedure 2004 while failing to mention an earlier paragraph on the same page that which clearly states interpretation and application of national/local agreements including matters relating to pay related benefits are within the scope of the procedure therefore the Employer

Grievance Procedure 2004 is the appropriate mechanism for the Worker to pursue his claim.

The Employee Relations Manager includes circular 112/99 in support of his decision not to uphold the Worker's claim but fails to mention the employers update from May 2000 which gives greater clarity on payment to nurses who have completed ENB courses of a minimum six month duration which the ENB 998 was. A circular from the 4th of September 2002 which extended the qualification allowance to all specialist courses confirmed as category 2.

The Employee Relations Manager makes further claims in his determination that this grievance is a collective dispute however it the Representative contented that this grievance is specific to the Worker, the Unions position is supported by a similar case LCR2213  where the Court determined that the circumstances within the dispute were particular to the worker and did not give rise to a trade dispute relevant to la body of workers.

The Employee Relations Manager also referred to ADJ-39525 to support his erroneous claim that this issue is a collective dispute however in the same adjudication the Adjudicator states "the employer's discretion must be applied fairly and consistently", this is clearly not the case here.

The Worker was in receipt of the Qualification Allowance by virtue of having the ENB 998 and continued to utilise this qualification when he commenced employment in the Employer West.

The Worker added to the list of qualifications he uses in his day to day working upon completion of the Forensic Course and his Post Graduation Diploma in Clinical Practice.

The specialist Hospital determined the Worker was entitled to the allowance because of his ENB998 qualification and his involvement with students, the Acting Director was satisfied that if the Worker could confirm his course had category 2 approval, he did not see any blocks to him receiving the allowance, it is therefore grossly unfair that another manager can refuse an allowance that was previously approved by other managers, the Union questioned where is the consistency in application here.

The decision to remove the allowance from the Worker is inexplicable, in making her decision in ADJ-00024137 the Adjudicator states "to my mind, the employer had a duty to ensure that all of its employees, including the worker, were fully aware of the allowances to which they are entitled and that any restrictive condition in the relation to the payment of allowances, such as existed in this case, should be explicitly drawn to attention of all employees", this did not happen in this case.

The post graduate studies undertaken by the Worker have allowed the Employer to maximise the benefits of the skills he has attained; it is grossly unfair that nurses who reported to him with lower levels of qualification have received the qualification payment and yet he was denied this allowance he had previously enjoyed.

The Labour Court in its many determinations has provided for a "what you have you held" approach to terms and conditions including working hours and entitlements, and removal of the Allowance from the Worker by the Employer was incorrect as it had already been established by the Employer that he met the criteria to be in receipt of the allowance.

The Employer in a Circular dated 04th September 2002, stated the Specialist Qualification Allowance is paid to all specialist courses confirmed as Category 2 and that is payable to nurses employed directly on duties appropriate to the qualifications held.

In 2004 the Worker completed a Post-Graduate Diploma in Clinical Practice another Category 2 course as required for payment of the allowance. As can be seen in these modules of the syllabus of the postgraduate provided the Worker with additional specialist skills appropriate to his role as a Clinical Nurse Manager Il in an area where staff he supervised are currently in receipt of the allowance.

When considering the Worker's claim, the Union drew attention to ADJ 000 24137 in a Nurse v Hospital decision where the employer states "a qualification allowance is payable to a nurse with the appropriate qualifications for the role she is performing". The Adjudicator in their findings and conclusion stated "I am of the view that the worker was entitled to be paid the Specialist Qualification Allowance from the time she was awarded an MSc in September 2070. I find the fact that the MSc was work related is persuasive in this regard"

As was evident in the syllabus for the Post Graduate Diploma in Clinical Practice the modules are appropriate to the post held at that time, in fact the modules are referred to as Specialist Nursing in the syllabus.

It is clear the Worker's qualification meet the criteria for payment of the allowance however, the Area Director of Nursing is challenging the Worker's entitlement to the allowance in her belief that he is not preforming specialist duties in the area he was previously employed, which the Worker understandably finds difficult to accept because there are and were other nurses in receipt of the allowance employed in that area.

In ADJ-OOO 39525 the Adjudicator stated that "there is no doubt that the employer has discretion in determining whether the worker is engaged in specialist duties as per the circular. However, the employers discretion must be applied fairly and consistently.”

The Director's decision to refuse the Worker the allowance appears to be an arbitrary decision and not consistent with the application of the allowance to other nurses in the service.

The Adjudicator in his decision recommended a role profiling exercise be undertaken where the workers duties and role are reviewed against the profile of duties currently being carried out by his colleagues who are in receipt of the Specialist Qualification Allowance and that this exercise be carried out by someone sufficiently independent from the employer who is experienced in healthcare regarding exercise.

The Representative stated it was his belief the Worker met the criteria for payment of the allowance and the payment should not have been stopped when he commenced employment in his current location and on his completion of the Post Grad Diploma was further evidence of his entitlement to the payment.

The fact that some of his colleagues in this area then and now are in receipt of the allowance demonstrates an inconsistency in the application of the payment.

It was the Unions belief that the Employer's decision to cease payment of the Qualification Allowance was incorrect and its subsequent refusal to reinstate it is grossly unfair.

The Employer Circulars are not being applied to the Worker in a consistent and fair manner.

The Union sought upholding the Worker's grievance that the Employer pay him retrospectively for an allowance he previously had which has been calculated at €27,037.04.

The Union also sought that the Adjudicator consider whether the Employer deliberately frustrated the Worker's claim and if suitable compensation should be awarded.

The Employer set out its initial position as follows;

The Worker as per his compliant form CA—00056223 seeks adjudication by the WRC under Section 13 of the Industrial Relations Act 1969.

The grievance of the Worker was previously lodged and processed in accordance with the terms and provisions of the Employer Grievance procedures at Stages 1, 2, and 3.

As confirmed the Worker is appealing the findings and recommendations of the Stage 1 determination as issued to him on the 8th June 2022 from the Area Director of Nursing Mental Health Services. The subsequent Stage 2 determination as issued to him on the 22nd February 2023 from the Head of Mental Health Services CH02 and the Stage 3 determination from National HR which issued on the 6th April 2023. All grievance determinations declined to find in favour of the complainants claim for payment of a specialist qualification allowance.

The Worker by utilisation of the Employer Grievance Procedures sought payment of a Specialist Qualification Allowance (SQA) retrospectively applied to February 2004.

The Worker's Stage 3 appeal determination confirmed and found that the Worker by utilisation of the Employer Grievance Procedures, was in summary seeking payment of a Nursing Qualification Allowance retrospectively applied to February 2004 and that this factual aspect of the Worker' s grievance raised a procedural issue in the context of the Employer Grievance Procedures in circumstances where the collectively agreed Grievance Procedures Policy May 2004 confirms that "The grievance procedure does not cover matters relating to improvements in pay or existing terms and conditions of employment which are of general application i.e. matters appropriate to the collective bargaining process."

The collective issue of Nursing Allowances is as detailed and set out by reference to the collectively agreed Circular 112/99 Revised Allowances for Nursing Grades Labour Court Recommendations No. 16261 and 16330.

In the context of the current collectively agreed Building Momentum agreement and with reference to Section 5.6.1 wherein it is confirmed "The parties agree that there will be no cost increasing claims for improvements in pay or conditions of employment by trade unions, Garda and Defence Force Associations, or employees during the period of the Agreement."

From the perspective of the Employer the appeal as lodged with the WRC Adjudication services must be viewed by the employer as both a collective issue and also a cost increasing claim, the lodging of which is precluded by reference to Section 5.6.1 of the Building Momentum Agreement. The claim of the Worker seeks retrospective application of an increase in salary by the payment of a specialist qualification allowance (SQA) backdated to February 2004 with the possibility/probability of consequential follow on claims from other the employees.

The WRC in ADJ-00025125 which issued on the 18th June 2020 dealt with the issue of nursing allowances. In this decision the Adjudicator reviewed the Specialist Qualification Allowance scheme and concluded as follows (in reference to the wording of the SQA agreement):

"It will then be a matter for the employer to decide whether or not a nurse is engaged in a specialist area on specialist duties". The Adjudication officer also went on to state "Notwithstanding any inconsistency in the application of the agreement referred to above this is fatal to the complainant's case in circumstances where the employer has not so decided. There may be inconsistencies in the manner of its application, but this agreement gives it the exclusive power to so decide.”

The adjudicator in ADJ-00025125 concluded as follows "I find that the eligibility criteria in respect of the Special Qualifications Allowance are clearly set out in the 1999 National Agreement, specifically requiring a decision by the respondent on whether an applicant meets the qualifying criteria".

The WRC in ADJ-00039525 which issued on the 15 th December 2022 also dealt further with the issue of nursing allowances. The Adjudication officer in the determination as issued and in the context of the 1999 collective agreement on allowances stated as follows "This is not the appropriate forum to challenge the terms of existing collective agreements. If the PNA wish to seek to change the above mentioned circular then this can only be done through the normal industrial relations channels, not through S 13 of the Industrial Relations Act 1969. There is no doubt that the Employer has discretion in determining whether the Worker is engaged in specialist duties as per the circular”. The Employer are of the view that the Stage 4 appeal of the Worker lodged with the WRC under section 13 of the Industrial Relations Act 1969 and referenced as WRC ADJ-00045397 —CA00056223 is a collective issue concerning improvements in pay and that the previous WRC adjudications namely ADJ-00025125 and ADJ-00039525 cannot be ignored or set aside.

The terms arid provisions pertaining to the issue of Allowances for Nursing Grades are as set out in the existing collective National Agreement 30 November 1999 i.e. Circular 112/99 issued by the Department of Health and Children (DOHC) on foot of Labour Court Recommendations Nos 16261 and 16330,. It also precludes employees or staff representative unions or associations from lodging cost increasing claims.

In reply to the Workers more detailed submission the Employer responded as follows;

The Worker by utilisation of the Employer Grievance Procedures is seeking payment of a Specialist Qualification Allowance (SQA) retrospectively applied to February 2004. In the context of Adjudication hearing held on the 28 th August 2023 and reconvened hearing held on the 7th November 2023 the Employer were invited to provide additional information /submission to the Adjudicator regarding the following issues.; Why the Worker does not qualify for a Specialist Qualification Allowance (SQA) and the possibility of an External Profiling Exercise.

There are two criteria for Staff Nurses/ Midwifes and Grades up to and including CNM I and CNM 2 to receive the qualification allowance. The first is having a post graduate qualification that is recognised by the Nursing Midwifery Board of Ireland (NMBI) as being a category Il course.

The second criteria is that the employee is engaged in specialist duties in a specialist area using the recognized NMBI category Il qualification appropriate to the specialist area where the nurse is employed.

As outlined in the Worker's submissions to the WRC the Worker states that he previously worked in a specialist Hospital in a Staff Nurse role. The specialist Hospital is a Specialist Service in Forensics and therefore Nursing management may have determined that his qualification in Forensics qualified him for payment of a Specialist Qualification allowance (SQA) to be paid while he worked in that Specialist area. The Worker in the context of his employment with the Employer West previously applied to his then Line Manager, an Assistant Director of Nursing for payment of a specialist qualification allowance, His then line manager (ADON) and the Director of Nursing (DON) did not approve payment of the specialist qualification allowance. Both his line manager and Director of Nursing were aware of his roles and responsibilities which were not deemed as qualifying for payment or an SQA

The Worker subsequently took up a promotional post as a Clinical Nurse Manager 2 with Adult Mental Health Services and did not work in either Forensic Services or in a Specialist Area / Service. The Worker accepted the CNM 2 post, at the time and accepted the salary attached to the post. He worked in an Adult Mental Health Community Day Service Centre, which are not categorised by the Employer as specialist services /areas.

Circular 112/99 Department of Health and Children confirms "A qualification allowance is payable to nurses employed directly in duties in a specialist area" The adult day centres in the Employer Mental Health Services are not categorised as specialist areas.

At the WRC hearing, on 28th August 2023 the Worker also advised that he was seeking the specialist qualification allowance for the ENB 998 Course "Teaching and Assessing in Clinical Areas". The ENB 998 Course is not an NMBI Category Il Course. Teaching and assessing student nurses while on placement /assignment in Clinical Areas is from the perspective of nursing management an integral role/function of all Registered Nurses as outlined/identified in the Registered Nurses Code of Professional Conduct (NMBI). The role of all CNM 2s would include providing a quality learning environment for Student Nurses, as part of the Student Nurses clinical placement and mentoring.

As confirmed the ENB 998 qualifications is not a Category Il course and is not deemed by NMBI and or the Employer Circulars to meet the criteria for payment of a Specialist Qualification Allowance.

The Worker subsequently forward correspondence to his Line Manager, Assistant Director of Nursing, who in turn forwarded it to the Area Director of Nursing. Both Senior Nurse Managers did not approve payment of the qualification allowance to the Worker because Nursing management remain of the view that the Worker is /was not working in a specialist area and that the Worker does not have a Category Il specialist qualification (SQA) as set out by reference to Circular 112/99 Department of Health and Children.

The Worker has submitted to the WRC a number of Post Graduate qualifications which he relies on in seeking payment of the specialist qualification allowance. There appears to be a lack of clarity as to what specialist qualification the Worker is relying upon and being utilised in seeking payment of a SQA in circumstances where it remains the view of Nursing management that no specialist duties are being undertaken and neither does the complainant work in a specialised area or in an area designated as a specialist area.

The Forensic Service is a specialist area — Adult Community Mental Health Services is not a specialist area. The ENB 998 qualification is not a Category Il Course and therefore does not meet the criteria for payment of a specialist qualification allowance.

Nursing management are not aware of any nursing staff members in the Regions Mental Health Cervices who receive a specialist qualification allowance for holding certification in either the ENB 998 Course or who may hold a Forensic qualification.

The dispute before the Labour Court in CD/ 15/233 concerned a Worker's claim to have the terms of the specialist qualification allowance (SQA) applied to him.

The Rights Commissioner's Recommendation which found that "The specialist allowance is payable to nurses directly employed in specialist areas of clinical practice appropriate to the qualification held. This is not the case in this instance. I therefore do not find the claim well founded and it fails," was appealed to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 20th October, 2015.

The employer's arguments before the Court were that the worker did not meet the criteria required in order to be paid the SQA.

Concession of payment of the allowance to the worker would lead to a significant number of repercussive claims Employer wide from staff that have post-graduate qualifications but are not working in specialist areas.

The Employer asserted that this worker was not engaged in a specialist area on specialist duties as outlined by the Department Circular.

The Labour Court in its determination found as follows

"The Court must be guided by the stipulations as outlined in the Circular for entitlement to the Allowance and by Management's clinical expertise, therefore the Court cannot uphold the Claimant's claim. If in the future, the area is designated as a specialist area then the allowance should be applied to the Claimant. Accordingly, the Court upholds the Right's Commissioner Recommendation and rejects the appeal.

A Copy of correspondence dated 4th September 2002 which was relied upon and submitted by the complainant and his representative in the course of the above Labour Court hearing confirms as follows "The specialist qualification allowance will be payable to nurses employed directly on duties in specialist areas of clinical practice appropriate to the qualification held, in accordance with Department of Health & Children Circular 112/99. The correspondence relied upon confirms "It will continue to be a matter for the employer to decide whether or not a nurse is engaged in a specialist area in specialist duties."

The collective issue of Nursing Allowances is as previously referenced and set out in Employers submission of the 28th July 2023 and by reliance on the collectively agreed National Circular 112/99 Revised Allowances for Nursing Grades Labour Court Recommendations No. 16261 and 16330.

The WRC in ADJ00023125, which issued on the June 2020, dealt further with the issue of nursing allowances. In this decision the Adjudicator reviewed the Specialist Qualification Allowance scheme and concluded as follows (in reference to the wording of the SQA agreement):

"It will then be a matter for the employer to decide whether or not a nurse is engaged in a specialist area on specialist duties". The Adjudication officer also went on to state "Notwithstanding any inconsistency in the application of the agreement referred to above this is fatal to the complainant's case in circumstances where the employer has not so decided. There may be inconsistencies in the manner of its application, but this agreement gives it the exclusive power to so decide.”

The Adjudicator in ADJ-00025125 concluded as follows "I find that the eligibility criteria in respect of the Special Qualifications Allowance are clearly set out in the 1999 National Agreement, specifically requiring a decision by the respondent on whether an applicant meets the qualifying criteria".

The WRC in ADJ-00039525 which issued on the 15 th December 2022 dealt further with the issue of nursing allowances. The Adjudication officer in the above determination referenced Circular 112/99 as follows "This is not the appropriate forum to challenge the terms of existing collective agreements. If the PNA wish to seek to change the above mentioned circular then this can only be done through the normal industrial relations channels, not through S 13 of the Industrial Relations Act 1969. There is no doubt that the Employer has discretion in determining whether the Worker is engaged in specialist duties as per the circular".

The PNA as the complainant's representative are seeking to rely on a provision in ADJ00039525 wherein it was also recommended that a profiling exercise be undertaken. The Adjudication Officer in his conclusions was of the view that the worker had achieved the requisite qualifications to bring him within the scope of the SQA scheme while also confirming that the course had previously appeared in the category Il list provided by NMBI. The adjudicator also stated "This matter rests on whether the worker is engaged in specialist duties on behalf of the employer.

In the case of the Worker in this case however, it has been clarified and confirmed by CH02 Senior Nursing Management that the Worker is not engaged in specialist duties on behalf of the employer or assigned by Nursing management to a designated specialist areas. In circumstances where CH02 Adult Mental Health Services are not a specialist area. It is the view of the Employer that there is no requirement for an External Profiling exercise. A recommendation to carry out such an exercise would entail further /additional costs to the Employer as a publicly funded body and ultimately a further cost to be borne by the taxpayer.

As confirmed by reference to the relevant Circulars and correspondences (DOHC Circular 112/99, the Employer Correspondence 4th September 2002) "It will continue to be a matter for the employer to decide whether or not a nurse is engaged in a specialist area in specialist duties." In the case of the Worker senior nursing management CH02 have not so decided.

Senior Nursing Management CH02 Adult mental health Services have confirmed that the Worker was not and is not engaged in a specialist area on specialist duties which a fundamental requirement for payment of a SQA is as outlined /stipulated by reference to relevant circulars and Labour Court Determination.

The Labour Court in CD/ 15/233 AD] 572 held that "The Court must be guided by the stipulations as outlined in the Circular for entitlement to the allowance and by Management's clinical expertise, therefore the Court cannot uphold the Claimant's claim".

Nursing management's clinical expertise and decisions to date in the matter of the Worker regarding his applications for payment of a SQA must be given due weight, consideration and attention.

In the context of the current collectively agreed Building Momentum agreement and with reference to Section 5.6.1 wherein it is confirmed "The parties agree that there will be no cost increasing claims for improvements in pay or conditions of employment by trade unions, Garda and Defence Force Associations, or employees during the period of the Agreement."

The Employer submission to the Labour Court in CD/ 15/233 confirmed that concession of payment of the allowance to the Worker would lead to a significant number of repercussive claims Employer wide from staff that have post-graduate qualifications but are not working within specialist areas. The same repercussive effect applies to the ENB998 course which is also held by a number of nurses across CH02 Mental Health Services, who are not working within specialist areas, and, in circumstances where Senior Nurse Management confirm that there are no work locations within CH02 Mental Health Services Region deemed as specialist areas.

In the context of the current claim from the Worker the reality of repercussive and collective claims from nursing colleagues who currently hold post graduate qualifications who are also not working in specialist areas within CH02 Mental Health Services cannot be ignored, set aside or discounted.

From the perspective of the Employer the appeal as lodged with the WRC Adjudication services is viewed by the employer as both a collective issue and also a cost increasing claim, the lodging of which is precluded by reference to Section 5.6.1 of the Building Momentum Agreement. The claim of the Worker seeks retrospective application of an increase in salary by the payment of a specialist qualification allowance (SQA) backdated to February 2004 (a retrospective claim encompassing 19 years) with the probability of consequential follow on claims from other employees who hold post graduate qualifications but who also like the Worker do not work in designated specialist areas of clinical practice appropriate to qualifications held.

The Employer remain of the view that the Stage 4 appeal of The Worker lodged with the WRC under Section 13 of the Industrial Relations Act 1969 and referenced as WRC ADJ-00045397 —CA-00056223 is a collective issue concerning retrospective improvements in pay by the payment/application of a SQA.

The findings /determinations of Labour Court Determination CD/15/233 stated "The specialist qualification allowance will be payable to nurses employed directly on duties in specialist areas of clinical practice appropriate to the qualification held, in accordance with Department of Health & Children Circular 112/99. It will continue to be a matter for the employer to decide whether or not a nurse is engaged in a specialist area in specialist duties".

Senior Nursing Management CH02 have confirmed that Adult Mental Health Services is not a specialist area and therefore does not attract payment of a SQA. The ENB 998 qualification is not a Category Il Course and therefore does not meet the criteria for payment of a specialist qualification as approved by NMBI. The Worker was /is not engaged in a specialist area within CH02 Mental Health Services or engaged in specialist duties which is a fundamental requirement /stipulation as confirmed by reference to National Circulars. The Labour Court in CD/ 15/233 stated "The Court must be guided by the stipulations as outlined in the Circular for entitlement to the Allowance and by Management's clinical expertise, and in the context of qualifying for payment of a SQA".

The terms and provisions pertaining to the issue of Allowances for Nursing Grades are as set out in the existing collective National Agreement Dated 30 November 1999 i.e. Circular 112/99 issued by the Department of Health and Children (DOHC) on foot of Labour Court Recommendations Nos 16261 and 16330.

The current Building Momentum - A new Public Service Agreement 2021-2022 Section 5.6.1 also precludes employees or staff representative unions /associations from lodging cost increasing claims.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.  I have also taken account of all relevant precedent industrial relations Recommendations and Decisions on the subject.

The provision of the specialist qualification allowance is covered by Circular 112/99 as follows “A qualification allowance is payable to nurses employed directly in a specialist areas”. The Workers job title is Assistant Director of Nursing. This is a generic job title in the Employers company across the nation. The Worker received the allowance while working in a specialist role previously and it was discontinued when he moved to Mental Health Services. The Employers circular stated in September 2002 that “it will continue to be a matter or the employer to decide whether or not a nurse is engaged in a specialist area in specialist duties”. The Worker set out his case three times internally and the internal evaluation of his case was that he was not engaged in a specialist area in specialist duties and therefore not entitled to the allowance.

There was no agreement between the parties to conduct a profiling exercise as had been recommended in a previous Recommendation on a similar issue by a different Adjudicator and therefore that avenue of a possible way forward to resolve the dispute was closed off.

The Worker submitted a number of qualifications to support his claim. Some of these were deemed by the Employer not at the appropriate level to justify the allowance. Even if they did meet the criteria the second element of the necessary part to justify the allowance was not met in that I do not deem the role of Assistant Director of Nursing to be a specialist function. There are hundreds, if not thousands, of the roles employed by the Employer.

The Worker stated that there are a number of people doing similar roles to his or with qualifications similar to his in similar roles that are in receipt of the allowance. However, no comparators were submitted to support this claim and this is detrimental to his claim. If such situations exists then the fairness of how the allowance is being allowed would be under severe scrutiny. However, it is important to state that part of the Employers case was that this situation did not exist.

The evaluation and monitoring of Nurses is a basic part of an Assistant Director of Nursing role irrespective of the area the Assistant Director works in and having a qualification in this subject does not automatically entitle a person to a specialist allowance.

The Worker representative did not accept that the issue was a collective issue as stated by the Employer. I agree that the complaint can be determined on its own merits but attempting to get the circular changed “through the back door” is not a good way to go about trying to modify the Circular for specialist allowances for Nurses. If, as alleged but not proven, there is inconsistency in managements approach to the award of the allowance then it should be dealt with at the appropriate time in the appropriate forum.

There is an obligation on management to determine requests fairly under the Circular which gives them the exclusive authority to make the decision. Nothing has convinced me that management have not acted fairly and comprehensively in evaluating the request for the allowance and therefore I must  rely on the Circular giving the Employer the right to make the decision on whether the allowance is applicable or not and determine that the Worker has not comprehensively established his entitlement to the allowance, both on the grounds of his qualifications and more particularly where he is currently employed, i.e. a non-specialist area and I conclude the Employers decision to not award the allowance to the Worker should not be set aside.

I find in favour of the Employer.

Allowance