ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: IR - SC – 00000246 ADJ-00038930
Parties:
| Worker | Employer |
Anonymised Parties | Clinical Nurse Specialist | Public Health and Social Care Provider |
Dispute(s):
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 – 00000246 | 03/05/2022 |
Workplace Relations Commission Adjudication Officer: Janet Hughes
Date of Hearing: 14/10/2022 and28/02/2023
Procedure:
In accordance with Section 13 of the Industrial Relations Act 1969 (as amended)following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute.
Two dates are given for the hearing of this dispute. As a matter of fact, the employer failed to attend on either date. On October 13th the HR Manager on record wrote to the WRC saying that a notification of 12 October was the first notice of the hearing scheduled for the following day. They indicated that they would not be able to attend or provide a submission at such short notice. In circumstances where this employer cooperates with all disputes referred to the WRC, I advised the Union that the hearing would be adjourned. That said, I am also satisfied that all email communications were sent to that named HR Manager at the correct email address and not, as he has suggested, to an address with the wrong spelling of his name. It is acknowledged that the text of any letter contains a misspelling but the name of the HR Manager is spelled correctly on the emails to the employer. I also wrote to the employer on 14 October explaining the situation and affording the parties two weeks in which to try to resolve the dispute. On 8 November the Trade Union advised that there was no contact from the employer in the interim. A further date for a hearing was cancelled and the notice for the hearing which proceeded issued to the parties at the correct email addresses on file on January 17, 2023. The trade union advised that they had tried to contact the HR Manager in the weeks leading up to the hearing, but there was no response.
As I am satisfied that the parties were properly notified of the hearing dates, that there was an opportunity to resolve the dispute without any engagement by the employer and in particular given some of the extraordinary features of this case none of which were caused by the worker, it is necessary to issue a recommendation to the parties without further delay.
Background:
This dispute is concerned with a claim for the payment of an approved ‘acting up’ allowance followed by the conversion to a permanent appointment in accordance with the relevant circular. |
Summary of Workers Case:
The worker is a qualified Psychiatric Nurse qualified since 2008. He has a Masters in Addiction Counselling and Psychotherapy. In February 2017 he was approached by manager C to take on duties as an addiction counsellor which is a recognised Clinical Nurse Specialist Role. Initially he worked part time until the case load expanded into a full-time role. He submitted a claim for an acting allowance in correspondence to the relevant ADON in December 2019-Manager A. Eventually he received a response from manager C which gave him the option of continuing without payment or reverting to his post in a day hospital. Later he lodged an official grievance with Manager A who issued a determination on 21st July 2020 which included a return to his post-from which he had moved during Covid. This determination was not however the end of the matter. Manager C then intervened contravening the decision of Manager A-the senior of the two managers. In June 2021 a Public Health and Social Care Provider Manager working in the supporting HR Department advised that the matter was with Manager A and the Head of Service for their action in processing the payment. In September 2021 the Union was informed that the matter was now the subject of a grievance. Essentially manager C was dissatisfied with the decision of manager A and lodged a grievance about same. That grievance was heard at Stages 1,2 and 3 and by the time of the hearing at the WRC in February 2023-the WRC. The resistance of manager C to making the payment approved by the more senior manager-A- was rejected at every stage of the grievance procedure. At the hearing, the Union provided a copy of AD-00037869 in the case of C where the AO hearing that dispute wrote: I find no cogent reason for the complainant to accept the decision of Mr D and move on. Additionally, I find no cogent reason was presented by the respondent side to justify their right to invoke managerial prerogative and instruct the relevant personnel to process the payment for Mr X (the worker in this case). I note the concerns of the respondent regarding the challenges in recruiting personnel as Addiction Counsellors. In order to bring closure to the matter of payment of the higher duty allowance which is at the core of this dispute-I recommend that the necessary paperwork be completed to make the appropriate payment.’ Since that recommendation on 14 December 2022, Manager C has signed off for the temporary appointment effective 17 09 2017. However, this has not resulted in any payment to the worker in this case. The further delay has been explained as a budgetary problem and the absence of an approved post for the conversion from a temporary to a permanent post. The claim for the conversion to a permanent post is based on Circular 068/2020 which it is claimed applied to him with effect from 01.01.2019 as he was in an acting position on that date as confirmed by the decision of A and now by manager C. |
Summary of Employer’s Case:
None available. |
Conclusions:
Given the range of disputes considered by the WRC under this legislation over many decades the now, the use of the term extraordinary to refer to any dispute is not something to be done lightly. Long-term acting posts within the employment and the need for agreements around regularising are not at all exceptional. Such agreements are not without their own controversy at times. But to have a manager running and moreover, being allowed to run a grievance because a higher graded manager decided that an acting allowance was justified to some one carrying out specific duties is extraordinary. And for the employer to allow that managers grievance to stall the payment for work done is even more extraordinary. This was a not a grievance by someone who felt they should get a job or who had been overlooked in some way-this was a dispute between two managers as to whose authority held sway. And the worker in this case was caught in the middle of a dispute he had no hand act or part in. He has been penalised severely as a consequence-and this is ongoing. If my use of the term extraordinary requires further justification-it would be nigh on impossible to find a situation where a third party at this level-in this case the AO in ADJ-00037869- found it necessary to cross over into this workers dispute to emphasise that his situation is to be resolved and the appropriate payment made to him. In the absence of any presentation by the employer I have no reason to conclude other than that the worker is also entitled to regularisation under circular 068/2020. What is also exceptional in this case is that the worker in this case is not seeking compensation for the delays in paying him what is now calculated at approximately €30,000 in arrears of pay. His representative stated that all the worker wants is for this situation to be closed off correctly and to receive his arrears. The employer is fortunate in my opinion that this is the workers position, at this stage. That the employer has allowed a budgetary or approved vacancy difficulty to develop in he meantime as has been suggested at local level, is a situation entirely of the employers making. |
Recommendation:
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.
The employer is to pay the worker his full arrears for acting in the role of Clinical Nurse Specialist with effect from 17 September 2017 on an acting basis. The terms of circular 068/2020 are also to be applied to him on the basis that he was in an acting role on a temporary basis at the time comprehended by that circular albeit he was not in receipt of the allowance at the time. The relevant payments to be made and the regularisation to be confirmed no later than 30 days from the date of this recommendation.
Dated: 13-03-2023
Workplace Relations Commission Adjudication Officer: Janet Hughes
Key Words:
Payment of Acting Allowance/Permanent Appointment by designation. |