LCR23053

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00045397 (CA-00056223 IR-SC-00001307)

BACKGROUND:

The Worker appealed the Adjudication Officer’s Recommendation to the Labour Court on 14 February 2024 in accordance with Section 13(9) of the Industrial Relations Act, 1969.

 On 9 January 2024 the Adjudication Officer issued the following Recommendation.

“I find in favour of the Employer.’’          

A Labour Court hearing took place on 1 October 2024.

DECISION:

This is an appeal by the Worker against an Adjudication Officer’s Decision IR- SC-00001307. The Adjudication Officer did not uphold the workers complaint.

Background

The Worker is a Registered Psychiatric nurse and commenced employment with this Respondent in 2004. Prior to that he had worked in various hospitals and in 2001 he took up a position in a specialist hospital as a Deputy Charge nurse. While employed in the specialist hospital he received a qualification allowance. In 2004 he took up a position with this Employer as a Clinical Nurse Manager and is seeking to have his qualification allowance reinstated for the period 2004 until he took up a permanent ADON position. The Worker also accepted that between 2008 and 2017 there were periods where he was acting ADON and that he was not entitled to the allowance for those periods.     

Summary of Worker’s submission

 The Worker submitted that he was entitled to the qualification allowance as he had the relevant qualification. When he initially raised it after he moved to this employment, he was asked to get some details relating to his qualifications and he was led to believe he would get it.  He formally wrote to his ADON on 24th April 2008 looking for the qualification allowance to be reinstated. He was informed at the time that only Addiction Counsellors received the allowance, so he did not pursue it.

In 2017 when attending a joint union management meeting he became aware that nurses were entitled to the allowance, and he wrote to the area Director of Nursing asking for his qualification allowance to be reinstated.  In February 2018 he sought confirmation that his post Graduate Diploma qualified under the circular. In April 2018 he received confirmation and in June 2018 he wrote to the new Area Director of Nursing to again request payment for the relevant periods.  Following on from that there was an exchange of correspondence with various managers who his request had been passed to. When Covid struck in March 2020 although he had not received an answer, he parked his complaint. In March 2022 he again submitted a claim for payment of the Qualification Allowance under the HSE grievance procedure. At stage 3 of that procedure, it was determined that he was not eligible. His Union on his behalf then lodged a complaint with the WRC. It is the Unions submission that despite the Employer’s contention that the day centre where he worked, is part of the adult mental health services was not a specialist service, other staff had received the allowance and in particular the person who replaced the Complainant had received it. They were now seeking payment of same for the relevant period.

Summary of Employers submission.

The Worker’s grievance has been fully investigated in accordance with the HSE procedures which has held at all stages that he was not entitled to the allowance as he worked in a day centre in adult mental health services which did not meet the criteria of a specialist services. This does not mean that from time to time an individual member of staff might have a relevant qualification and carry out duties that would qualify them. In the Workers case it was not accepted by the employer that he was working in an environment that justified payment of the allowance. The Worker when he first moved to this employment had raised this issue and was told he was not eligible he did not process a grievance at that time, and he is now looking to be paid an allowance in respect of a role he held 20 years ago.

Circular 112/99 is very clear that there are two limbs to qualifying 1) he must have a post graduate qualification that is recognised by the Nursing Midwifery Board of Ireland as being category II course and 2) the employee must be engaged in specialists’ duties in a specialist area using this qualification. It is Management position that the Complainant did not work in a specialist area using the qualification.   The circular also clearly states that “It will be a matter for the employer to decide whether or not a nurse is engaged in a specialist area on specialist duties”.  The Employer in this case has decided that at the relevant times the Worker was not engaged in a specialist area on specialist duties.

Decision

 The Court having read and listened carefully to the submissions of the parties does not recommend concession of the Workers claim. Claims of this nature should be progressed to finality in a timely manner and not left to fester. The circular in this case leaves the final decision to the Employer as to whether a nurse is working in a specialist area on specialist duties. The Employer in this case has found that this worker was not  for the period the allowance is being claimed 

The appeal fails.

The Decision of the Adjudication officer is upheld.

 The Court so Decides.

	Signed on behalf of the Labour Court
	Louise O'Donnell
AR	______________________
18 October 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Aidan Ralph, Court Secretary.