Worker

Employer

Anonymised Parties

An Assistant director of Nursing

A health services provider

Representatives

Niall O'sullivan Psychiatric Nurses Association (PNA)

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 - 00002584

01/05/2024

The worker is an Assistant Director of Nursing in a health care facility. A complaint was received by the WRC on 1 May 2024.  The complaint is made under the Industrial Relations Act, 1969.

The worker provided a detailed written submission.

The worker submits that she took up a position of Assistant Director of Nursing (ADON) in 2018. In late 2021, the worker agreed to work additional hours following a request from the Area Director of Nursing for ADONs to provide cover at a nursing grade.  The worker had a reasonable expectation of being paid overtime for these additional hours worked and when the payment did not materialise, she made enquiries with the payroll department who advised her that her Area Director of Nursing would not authorise payment.  The worker continued to look for payment through informal means, but she was told that payment was not an option, instead she was told she would get Time Off In Lieu (TOIL).  The worker was not happy with this, and she lodged a grievance.

The worker’s grievance was partially upheld at Stage 2 where the Head of Service found that overtime should be paid for hours worked outside the normal roster, however, the application to work below her grade of ADON for overtime payments was not upheld with the reason given being that allowing the worker to work below her grade would undermine the management structure. The complainant was not happy with this outcome, and she appealed the decision.

The outcome of this appeal at Stage 3 was a disappointment to the worker as well. The outcome included the line, “there is a key difficulty with employees operating at a senior level for the majority of a week and then progressing an accommodation of a proposal to work at a lower level grade in order to avail of overtime…..”

The worker was disappointed with this outcome as she believes she has a duty of care to mitigate risks identified by staff junior to her who are regularly working below agreed safe staffing levels.

Following consultation with her union, the worker decided to initiate a new grievance.  The hearing of this grievance took place in late 2023. The worker’s grievance was not upheld. The worker again appealed the outcome at stage 2 and Stage 3, but her appeals were unsuccessful. Following this the worker requested that her union refer the matter to the WRC.

The worker believes the only obstacle to her being facilitated with overtime in line with her colleagues is one of ideology from her Area Director of Nursing. She points to the fact that ADONs in other areas have been paid overtime for covering at lower grades.  That staff shortages are acute in her area, and it behoves management to use all means to address these shortages for the sake of safety and efficiency.

In conclusion, the worker submits that a circular from the overseeing body clearly lays out what staff can be paid overtime and states a reason being to address staff shortages.

The worker’s Area Director of Nursing has decided to apply his own criteria that is not part of any policy or circular. The ADON has taken it upon himself to disregard identified risk and only mitigate the risk with additional staffing if the grade available is below an ADON.

In taking this approach he has failed in his duty to manage risk identified by his staff with resources available to him and treated this worker less favourably than her colleagues in her service who are being offered overtime in line with the circular cited as well as what has been offered to other ADONs in other services.

The representative for the worker stated at the hearing that the union which represents the worker is open to discussing with the employer how overtime is allocated. A draft document has been prepared.

The employer provided a detailed written submission.

The employer submits that it does not accept that the worker has been denied access to overtime.  The worker is part of a collective cohort where access to overtime in another grade is not the norm due to operational and governance issues.  The employer submits that this is not an individual issue and affects over 120 ADONs within this area.

By way of background the employer submits that the issue in contention is access to overtime to cover staff nurse or grades lower than her current substantive grade. The worker initiated grievances on the subject but following process she was unhappy with the outcome and lodged a complaint with the WRC.

The employer submits that the Area DON must approve all hours worked in the service per good clinical practice as per policy. The position of Area DONS nationally is that it is ok to sanction overtime for ADONs in exceptional circumstances on a grade-to-grade basis providing cover for each other. In the worker’s case her Area DON has not facilitated overtime at staff nurse grade for the worker or any ADONs in his area of responsibility.  The worker has not been singled out.

The policy document governing this matter is cleat, it states, inter alia, “all additional hours worked must have prior approval of the nurse’s director of nursing.” In this case the Area DON who is the worker’s director of nursing and line manager has not given approval for overtime at a lower grade.  The decision is not anything personal to the worker but affects all the ADONs in the service.

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

I conclude that a policy in being places the decision on whether overtime is worked or not worked in the hands of the Area DONs. An Area Don has authority to decide how overtime is allocated or is not allocated, for whatever reasons they see fit.  In this case the Area DON has decided not to grant the worker access to overtime, this is his prerogative.

If the union wishes to address anomalies in the current system as they would see it, that is their right (indeed it would seem this is something they are progressing). 

Importantly, I find that this complaint has implications for a body of workers.

Section 13 (2) of the Industrial Relations Act, 1969 provides:

Subject to the provisions of this section, 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 and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.

In LCR21839 Cavan Monaghan Disabilities Services – and – A Worker the Labour Court stated:

“the outcome of the within dispute has far reaching implications for a broad cohort of similarly affected staff … It is in effect a collective dispute and ought not to have been referred under Section 13 of the Industrial Relations Act 1969.”

Likewise, in LCR22904 the Court found that the trade dispute was connected with rates of pay of a body of workers and declined jurisdiction in the matter.

The import and meaning of Section 13 (2) of the Industrial Relations Act 1969 as confirmed by the Labour Court is that I do not have jurisdiction to hear this dispute.