Worker

Employer

Anonymised Parties

A Nurse

A Hospital

Representatives

Mary Rose Carroll Irish Nurses and Midwives Organisation

Fergus Dwyer, IBEC

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 - 00001172

15/03/2023

The dispute relates to the outstanding retrospective payment of monies allegedly owed to the Worker following a WRC Agreement made in March 2022 relating to the grading, salary and hours of work of Haemovigilance Officers which she states that the Employer has refused to make.

The Worker was a registered general nurse (RGN) and worked for the Employer for over 21 years as a Clinical Nurse Specialist in Haemovigilance. She was part of the Haemovigilance Team under the Clinical Governance of their Haemovigilance Consultant. She provided expert specialist nursing care to patients receiving Blood Transfusions and was an educator to the staff in respect of transfusion safety, risk management and Audit.

In March 2022, following extensive conciliation between the HSE/INMO & SIPTU under the auspices of the Workplace Relations Commission, agreement was reached in respect of the grading of the Haemovigilance Clinical Nurse Specialist to Haemovigilance Officer. Both Clinical Nurse Specialists and Senior Medical Scientists in the area of Haemovigilance had been undertaking the same roles and responsibilities with different grading, hours, annual leave and salary. This agreement outlined the Grading of the Haemovigilance Officer for those encompassed such as the Clinical Nurse Specialists, who were on Clinical Nurse Manager 2 pay scales and entitlements. The agreement detailed retrospective correction of the grading to January 2021.

Following the WRC Agreement, the Worker made enquiries locally with HR and with her nursing line management in respect of the implementation of the regrading to Haemovigilance Officer because it was her expectation that the regrading of her role to Haemovigilance Officer would be honoured by her employer. The Worker also gave notice to management of her intention to retire in mid-August 2022. This notice was to enable adequate time to backfill her vacancy and for the calculation of her pension. She retired on 14 August 2022, and instructed salaries/pensions in the Employer that she did not want to draw down her pension lump sum as it had to be readjusted following the regrading Agreement. She subsequently contacted HR and Salaries on 21 September 2022 in respect of the regrading, seeking the back payment for her Haemovigilance Role and the monies owing in respect of the Building Momentum Agreement. This email was not acknowledged nor was a response received from the Employer.

On 10 October 2022, the Worker wrote to the HR Manager and HR Supervisor in respect of the regrading and was advised by the HR Supervisor that her correspondence had been forwarded to the Director of Nursing. She wrote again to the HR Supervisor and Head of HR on 9 November 2022 seeking an update further to her previous correspondence. No update from the Director of Nursing was received.

The INMO sent correspondence to the Director of Nursing and the Head of Human Resources on 24 November 2022, seeking that the WRC agreement be immediately implemented with retrospection as outlined. No response was received, and a reminder issued on 2 December 2022. A standard acknowledgement was received from the Director of Nursing stating that the matter was receiving their attention.

The INMO again wrote to the Employer on 9 February 2023, seeking the outstanding implementation of the regrading of the Worker’s post and retrospection and advised that owing to the lack of meaningful engagement, the issue would be referred to the WRC. An acknowledgement letter was received from the Director of Nursing on 14 February 2023, stating that the Employer would respond ASAP. The Employer was subsequently advised by the INMO that, due to a lack of meaningful engagement and delay tactics, the claim was being referred to the Workplace Relations Commission. A standard acknowledgement was received from the Employer on the 27 March 2023. No further communication, no attempt at meaningful engagement or progression of this claim was made by the Employer despite correspondence sent by both the INMO and the Worker.

The Employer in its written submission did not provide any response in relation to the substantive matter. Their representative stated that they objected to the matter being heard on the basis that the dispute had been referred outside of the statutory timeframes.

The Law

Section 26A of the Industrial Relations Act 1990 provides, inter alia

(1)   Notwithstanding any other provision of this or any other enactment, but subject to subsection (2), an adjudication officer or the Court shall not investigate a trade dispute to which a worker who has ceased to be employed by reason of his or her retirement is a party unless— (a) the dispute was referred to the Commission for conciliation within a period of 6 months from the date on which the worker’s employment ceased, or the date on which the event to which the dispute relates occurred, whichever is the earlier, or (b) the dispute was referred to an adjudication officer or, as the case may be, the Court within the period referred to in paragraph (a).

(2)   Notwithstanding subsection (1), an adjudication officer or, as the case may be, the Court may extend the period referred to in that subsection by a further period not exceeding 6 months where the adjudication officer or the Court is satisfied that the failure to refer the dispute within the period referred to in subsection (1) was due to reasonable cause.

Preliminary Matter

Despite the Employer’s representative having provided submissions on 17 July 2023 which clearly outlined their objection to the matter being heard on the grounds that the dispute was referred outside of the statutory timeframes referred to in 26A (1) of the Industrial Relations Act 1990 above, the Worker’s representative did not provide any replying written submissions in relation to this objection in advance of the hearing.

On the day of the hearing, Ms Carroll argued for an extension of the statutory timeframe on the grounds that they they had engaged with the Employer locally on the matter and they fully expected them to make the payment to the Worker because they had always honoured their agreements in the past.

In making my decision on the preliminary matter, I must have regard to the decision in Business Mobile Security Ltd t/a Senaca Limited v John McEvoy EDA 1621 where the Labour Court held that the claim was statute barred, stating:-

·         The Court finds that in the particular circumstances of this case the Complainant made a choice and must take the consequences of that choice. He chose not to pursue a complaint under the Act, allowed time to pass and found himself statute barred when his chosen procedure did not resolve the matter to his satisfaction.”

I am satisfied that the same principles apply in the instant matter and am of the view that the Worker cannot circumvent the time limits set out in the Act by seeking to rely on a subjective view that the Employer would resolve the matter locally. This erroneous belief should not have prevented her from complying with the statutory time limit for initiating the dispute.

I must therefore find that the within claim was out of time when it was presented to the Workplace Relations Commission on 15th March 2023.