Worker

Employer

Anonymised Parties

A Nurse

A Public Health Service Provider

Representatives

Caroline Brilly Psychiatric Nurses Association

 William Toomes, HR Specialist

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 - 00000358

10/06/2022

The background to this dispute was the introduction of the Enhanced Nurse Contract (ENC) following protracted discussions between the stakeholders and a Labour Court recommendation. The ENC was agreed in 2019 and provided for a new contract and salary scale for the role of enhanced nurse. The implementation arrangements were set out in HR Circular 022/2019 which issued on 23 August 2019 and in FAQs issued on 20 December 2019 – ie Memo 16/2019. The commencement date for the new ENC was 1 March 2019 and an application process was set out which provided that assimilation onto the new enhanced scale would be based on the successful applicant’s incremental date.  The arrangements also provided for retrospective pay in certain circumstances.

In 2019 when the ENC was agreed, the Worker was already in receipt of the Long Service Increment (LSI) of the staff nurse scale with no incremental date. The Worker had commenced on the LSI on 1/2/2017. The Worker applied for the ENC on 29/11/2020 and this was issued to him on 8 March 2021, however for the purpose of assimilation onto the new ENC salary scale, the Employer applied “a nominal” incremental date of 1 February 2020 on the basis of his previous incremental date prior to moving to the LSI.

The Worker compared himself to other workers who he stated were treated more favourably as their actual incremental dates postdated the commencement of the ENC thereby resulting in retrospective pay being granted to them to their next incremental date. The Worker stated that an Area Director had approved retrospective pay for him back to March 2019 but this was challenged. On foot of this the Worker initiated an internal Grievance Procedure on 21 July 2021 which he stated was subject to undue delay at Stage 1 as the first hearing did not take place until 15 December 2021 with the outcome issued on 29 December 2021. The Worker stated this was breach of the Employer’s Grievance & Disciplinary procedures. The Grievance Procedure failed to resolve the issue for him.

It is the position of the Worker that the application by the Employer of a nominal date of 1 February 2020 for assimilation onto the new ENC scale was inequitable and unfair to him and has resulted in loss of pay in comparison with his colleagues. The Worker further stated that to the best of his knowledge he was the only Worker in the country in this situation and impacted in this manner. The Worker outlined his loss of earnings and stated that he was also seeking compensation for the delay in processing his Grievance Procedure.

The Employer stated that the Worker’s ENC was based on the provisions of HR Circular 22/2019 and the clarifications issued in Memo 16/2019. The Employer cited various provisions including the following:

·       The provision in Circular 22/2019 that successful applicants will be assimilated onto the new ENC salary scale “on each individual’s current increment date”;

·       The clarification in Memo 16/2019 that in the case of staff on the max of the scale who have no further increments to be paid, that – “This requires employers to use the actual incremental datesthat are available on record”; and

·       The provision in relation to retrospection which stated:

“If a successful applicant had their increment point between 1 March – 23 August 2019 (issuance date of…..Circular 22/2019 when the application process was formally opened), only in those circumstances he/she would have an entitlement to back dating from that increment point till 23rd August. If their increment date falls after that period, the benefits only accrue from that increment date”.

The Employer stated that in accordance with these stipulated provisions, the date of effect set out in the Worker’s ENC was 1 February 2020 as he had progressed to the LSI on 1 February 2017. It is the position of the Employer that it treated the Worker no less favourably than any of his counterparts in the same position and that its implementation of the ENC was in accordance with the Circular and the Memo in order to ensure uniformity of interpretation and implementation across the organisation as a whole. The Employer further maintained that concession of the Worker’s claim would amount to a precedent.

In conducting my investigation, I have taken into account all relevant submissions and documentation presented to me by the parties and have come to the following conclusions:

·       Both the Worker and the Employer agree that the introduction of the ENC in 2019 was the result of a sectoral agreement brokered by the Labour Court. HR Circular 22/2019 states its purpose was to give effect to this agreement. Ordinarily where a group of workers is affected, consideration by an Adjudication Officer is precluded under Section 13 of the Industrial Relations Act 1969 which provides that ".... Where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended….., a party to the dispute may refer it to a rights commissioner [ie Adjudication Officer]". In this instance I am of the view that as implementation of the agreement was predicated on each individual worker’s incremental date and as that is the core of this Worker’s dispute, I am not precluded from considering this an individual dispute;  

·       From my consideration of the terms of HR Circular 22/2019 and Memo 16/2019, I am satisfied that retrospective payment was not granted in every case and that it was only granted in the limited circumstances where the applicant’s incremental point fell between 1 March – 23 August 2019. The clarification in Memo 16/2019 explicitly states that if the increment date fell after that period, the benefits only accrued from the increment date;

·       Transitioning to a new salary scale on the basis of incremental dates is not unusual but inevitably – as in this case - it can lead to swings and roundabouts in terms of when each worker benefits. Dependent on their individual incremental date some workers would have had the benefit of the new scale earlier than others. In the case of the Worker at the centre of this dispute who was on an LSI, given the nature of the national agreement and the desire for consistency of approach, I consider it was not unreasonable for the Employer to determine a nominal date for implementation based on the Worker’s incremental records;

·       The Worker and his PNA representative argued that the Worker’s case was “unique” and that there had been “no issues regarding the LSI and retrospection to March 2019 for any other nurses working in Mental Health”. If this is the case, then I consider that it would be unfortunate that the Worker’s dispute could not be sorted by voluntary agreement;

·       I am satisfied that the Employer breached the terms of its own Grievance & Disciplinary Procedures at Stage 1 in terms of failing to hold the initial meeting within the seven working days specified in the agreement and in the inordinate length of time it took – December 2021 -  to hold the first meeting and issue the Stage 1 decision.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute. In light of my conclusions I recommend as follows:

-          That subject to the Worker’s situation being unique, the Worker and/or his representatives re-engage with the Employer with a view to reaching a mutually agreeable resolution on a without precedent “red circle” basis.

-          That the Employer compensate the Worker €500 for the delay in processing his Grievance Procedure.

Incremental Date; Red Circle