Worker

Employer

Anonymised Parties

Cancer Nurse Specialist (CNM2)

Public Hospital

Representatives

Liz Curran Irish Nurses and Midwives Organisation

Katie Fleming

Act

Dispute Reference No.

Date of Receipt

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

CA-00043247-001

25/03/2021

The employee is a highly qualified Clinical Nurse Manager 2.  She commenced working in the post of Colorectal Cancer Nurse Co-Ordinator in May 2012.  The employee holds a postgraduate Diploma in Adult Oncology which she completed in May 2013.  This qualification may attract payment of the specialist qualification allowance where the employee is employed directly on duties in specialist areas of clinical practice, appropriate to the qualification. 

The employee claims she is due payment of the difference between the location allowance and the specialist qualification allowance for the period May 2013 to March 2018.  The employee has been paid the specialist qualification allowance since April 2018.  The total value of the claim is €4,509.50 gross.

The employer states that the employee made an application in April 2018 for the specialist qualification allowance.  The application was reviewed, approved and paid accordingly as it was determined that the employee was engaged in a specialist area on specialist duties in line with the provisions of Department of Health & Children Circular 112/99.  There was no documented evidence that a formal application for the specialist qualification allowance was made to the Director of Nursing in 2013 when the employee completed her postgraduate course.  The employer rejects the employee’s claim.   

The employee holds the post of Colorectal Cancer Nurse Co-Ordinator (Clinical Nurse Manager 2 grade).  The employee is highly qualified holding a Bachelor of Science Degree in Nursing, a specialist Intensive Care Nursing qualification, and a postgraduate Diploma in Adult Oncology (Colorectal).

The employee completed the postgraduate Diploma in Adult Oncology programme in UCD in 2013.  When the employee commenced in the post of Colorectal Cancer Nurse Co-Ordinator in May 2012, she was automatically paid the location allowance.  Having completed her postgraduate Diploma in 2013 she asked her Line Manager if she was entitled to be paid the specialist qualification allowance instead of the location allowance.  The specialist qualification allowance is €933 higher per year than the location allowance.

The employee recalls that she was told by her Line Manager that there was a moratorium in place and that some allowances had been suspended due to same.  The employee contends that the moratorium did not apply to the specialist qualification allowance as there was no reference to this allowance in Circular 010/2009.  The moratorium on recruitment and promotion in the public service was rescinded in March 2013.

In December 2017 the employee read an article in the union’s magazine about the application of the specialist qualification allowance and realised she was entitled to have the allowance applied to her.  The employee applied to the Director of Nursing seeking the application of the specialist qualification allowance.  The application was approved, and the allowance has been paid to the employee since April 2018.

The employee made enquiries regarding retrospective payment of the specialist qualification allowance to her from the time of her qualification in 2013 to March 2018.  She was verbally advised she would not be paid the allowance retrospectively. 

The funding for the post graduate course was provided by the Nursing and Midwifery Planning and Development Unit (NMPDU).  The Director of Nursing of the hospital in 2013 was required to provide written consent to the employee’s application for funding.  The employer supported the application for funding for the course and was aware the course was successfully completed by the employee. 

The employee requested the assistance of the union to claim the retrospective payment of the allowance.  Between April 2019 and March 2021, the union and the employer exchanged correspondence.  The union sought payment to the employee of the difference between the value of the location allowance and the specialist qualification allowance between 2013 and 2018.  As the matter was not resolved directly between the parties, the union referred the dispute to the Workplace Relations Commission on 25 March 2021.

The employee’s representative contends that a precedent exists at this hospital for the retrospective payment of the specialist qualification allowance.  Two members of the union were paid the allowance in 2014 retrospective to their date of qualification.

The employee’s claim is for the payment of the difference between the location allowance and the specialist qualification allowance from May 2013 to March 2018.  The value of the claim is €4.509.50 gross.  The employee contends she was entitled to be paid the specialist qualification allowance from the time she successfully completed her postgraduate Diploma in Adult Oncology (Colorectal) in 2013.

The employee commenced her employment on 01 January 2003 and is currently employed as a Colorectal Cancer Nurse Specialist.  The employee completed a postgraduate course in Adult Oncology (Colorectal) at UCD in 2013.

The employee was paid a location allowance in accordance with the Department of Health & Children Circular 112/99 up to the time she applied for the specialist qualification allowance in April 2018.  The application was granted in 2018.  The employee remains in receipt of the specialist qualification allowance.

The specialist qualification allowance is payable to nurses and midwives who hold a qualification recognised by the Nursing and Midwifery Board of Ireland (NMBI) as a category 2 course and who are employed directly on duties in specialist areas of clinical practice, appropriate to the qualification held.

The process in this hospital is that the Director of Nursing determines if the nurse/midwife is deployed on duties relevant to the qualification held.  The nurse/midwife who completes a relevant qualification must apply to the Director of Nursing for the specialist qualification allowance.

The employer refutes the employee’s claim that she made enquiries, through her Line Manager in 2013, about the application of the specialist qualification allowance and was informed that such allowances were no longer operating due to the moratorium.  It is the employer’s position that the specialist qualification allowance did not cease to operate in 2013.  Had the employee made an application for the specialist qualification allowance in 2013 her application would have been assessed and considered in line with the provisions of Department of Health & Children Circular 112/99.  At no point in 2013 was an application received by the Director of Nursing from the employee.

It is the position of the employer that all nurses and midwifes are well informed to submit their application for the specialist qualification allowance to the Director of Nursing once they receive their certificate from the relevant College/Institute or University.

It is the position of the employer that the NMPDU process when funding employees to undertake educational programmes is a completely different process to the application required for the specialist qualification allowance.  The NMPDU would not know what duties a nurse is undertaking in her role.  To qualify for the specialist qualification allowance, the employee must be both qualified and employed directly on duties in specialist areas of clinical practice, appropriate to the qualification held.

The employer noted that a recommendation in favour of the employee could lead to a raft of similar applications from other staff who had completed Category 2 Approved NMBI courses since 2013, who have not applied for the specialist qualification allowance.

It is the position of the employer that the onus is on the employee to make an application for the specialist qualification allowance.  When an application is received a determination is them made by the Director of Nursing as to whether a nurse is engaged in a specialist area on specialist duties.  The employee made such an application in 2018.  The application was approved, and the employee has been paid the allowance since 2018.

The employer requests that the claim for retrospective payment between 2013 and 2018 be rejected.

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

The employee is a highly qualified and experienced Colorectal Cancer Nurse Specialist.  She commenced working in the post of Colorectal Cancer Nurse Co-ordinator in May 2012.  It is common case that she undertook a postgraduate course in Adult Oncology (Colorectal) at UCD.  The course was funded through the relevant Nursing Midwifery Planning and Development Unit (NMPDU).  The employee successfully completed the course in May 2013.

It was not in dispute that the specialist qualification allowance is only paid in circumstances where the employee holds a relevant qualification and is employed directly on duties in specialist areas of clinical practice, appropriate to the qualification held.  Details of qualification for the specialist qualification allowance are set out in Department of Health Circular 112/99.

To be paid the specialist qualification allowance an employee must make an application for the allowance.  The employee automatically received the location allowance when she took up her post in May 2012.  The specialist qualification allowance is only paid when it is determined by the employer that the employee is employed directly on duties in specialist areas of clinical practice appropriate to the qualification held.  In this hospital it is the Director of Nursing who determines if the employee is deployed on duties relevant to the qualification held.

It is the employee’s case that she raised her entitlement to the specialist qualification allowance with her line manager in 2013, when she had completed her qualification.  Her recollection is that she was told that there was a moratorium in place and that some allowances had been suspended.  She accepted this response as a moratorium on recruitment and promotions in the public service had been in place since 2009. 

The employer in its submission has clarified that the moratorium did not apply to the specialist qualification allowance.  It is the employer’s position that if the employee had made an application in 2013, the application would have been assessed and considered in line with the provision of the Department of Health and Children Circular 112/99.  However, it is denied that the employee was told the moratorium applied and that the allowances had been suspended.

The employer in its submission acknowledged that the employee was in fact located within Oncology Services in 2013, at the time she completed her qualification.  The employee acknowledged that she did not make a formal application for the allowance in 2013.  She did not make a formal application because upon making an enquiry to her line manager she had been told about the moratorium on recruitment and promotions.

The employee did make a formal application for the specialist qualification allowance in 2018 and the allowance was approved.  She has been in receipt of the allowance since 2018.

This dispute is about the non-payment of the specialist qualification allowance from 2013 to 2018.  The employee claims she should be paid the difference between the location allowance and the higher specialist qualification allowance from the time she completed her qualification in 2013 up to 2018, when she was awarded the higher allowance.  The employee holds the required qualification, and she has been, and continues to be, employed directly on duties in the specialist area of clinical practice in Oncology Services.  (Paragraph 2.9 of the employer’s submission).  In my opinion as the employee was employed on duties in the specialist are of clinical practice in Oncology Services, she qualified to be paid the specialist qualification allowance from 2013 when she completed her postgraduate course in Adult Oncology.

I accept the employer’s position that employees must make an application for this allowance as it is for the Director of Nursing in the hospital to determine if the employee is employed on duties relevant to the qualification held.   However, it seems the only reason the employee did not make a formal application in 2013 was because she was told the allowance had been suspended.  It is very difficult for a line manager to recall the details of a conversation held years previously with one of many employees about an individual allowance.  However, the employee would have a clearer recollection because it was something that applied personally to the individual.  On balance, I accept the employee’s account of what took place in 2013.

It is the employer’s position that all nurses and midwifes are well informed to submit their applications for the specialist qualification allowance once they receive their certificate from the relevant College/Institute or University.  However, in response to a question it was stated that it is the relevant line manager who informs employees of the application procedure for the specialist qualification allowance.  In my opinion in the absence of documented procedures the employer cannot be certain that all employees are always informed of the correct application procedure.

It is my opinion that the employee was given incorrect information in 2013 when she made an enquiry of her line manager about the specialist qualification allowance.  I am satisfied that she was entitled to be paid the specialist qualification allowance from the time she successfully completed her postgraduate qualification as the employer has confirmed she was employed directly on relevant duties in Oncology Services.  However, I am conscious that the employer expressed a concern that concession of this claim could lead to a raft of similar applications.  I requested further information from the employer about the number of applications made to the hospital seeking retrospective payment of the specialist qualification allowance.  The employer provided further information on 27 April 2022.  The hospital was unable to identify if applications were made seeking retrospective payment of the specialist qualification allowance.  A total of 240 approved applications were identified as being made subsequent to (not Immediately upon) the attainment of the qualification.  The 240 applications were processed and paid at the time of application, as is the agreed practice at the hospital.  The employer expressed a view that a recommendation in favour of the employee could lead to claims for retrospective payment from an unspecified number of the 240 approved applicants.  The employer provided a provisional cost of €370,000 but did not provide details as to how this figure was calculated.  While I acknowledge the employer’s concern about other possible claims, I believe there are specific background circumstances to the current dispute that distinguish it from other possible claims.

The union contended that there was a precedent for the retrospective payment of the specialist qualification allowance.  The union was asked to provide details of such precedent to the employer.  The information was provided to the employer on 22 June 2022.  The employer provided information on the two cases on 19 July 2022.  Having investigated the two cases the employer states that in both cases for the post holders to be appointed into the posts the individuals were required to hold the relevant qualification.  In the instant case the employee was not required to hold the specialist qualification.  The employer contends therefore that there is no direct comparison, and no precedent exists.  I accept the employer’s contention that these two cases may be distinguished from the instant case.

I am satisfied that the employee was entitled to be paid the specialist qualification allowance from the time she successfully completed her postgraduate qualification as the employer has confirmed she was and is employed directly on relevant specialist duties in Oncology Services.  It is my opinion that the employee was given incorrect information in 2013 when she made an enquiry of her line manager about the specialist qualification allowance.  Accordingly, I recommend that the employee be paid €4,509.50 gross, being the difference between the location allowance and the specialist qualification allowance for the period May 2013 to March 2018.

I am satisfied that the employee was entitled to be paid the specialist qualification allowance from the time she successfully completed her postgraduate qualification as the employer has confirmed she was and is employed directly on relevant specialist duties in Oncology Services.  It is my opinion that the employee was given incorrect information in 2013 when she made an enquiry of her line manager about the specialist qualification allowance.  Accordingly, I recommend that the employee be paid €4,509.50 gross, being the difference between the location allowance and the specialist qualification allowance for the period May 2013 to March 2018.

I make this recommendation based on the specific circumstances of this dispute.  This recommendation is not a precedent for any other retrospective claims for the specialist qualification allowance.

I also recommend that the employer provides information in writing to employees about the procedure for applying for the specialist qualification allowance.  This information should be provided to an employee at the time they are granted permission to participate in a postgraduate course of study.  The written procedure should clearly state that it is the responsibility of the employee to apply for the specialist qualification allowance when they have successfully completed the relevant course.  It should also state that the employer will determine whether the employee is employed directly on specialist duties of clinical practice relevant to the qualification held.

Allowances

Retrospective payment of allowance