INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
MID WESTERN HEALTH BOARD
- AND -
(REPRESENTED BY THE IRISH NURSES' ORGANISATION)
Chairman: Mr Flood
Employer Member: Mr Keogh
Worker Member: Mr. Somers
1. Appeal against Rights Commissioner's Recommendation IR9494/02/MR.
2. The worker has been employed as a Staff Nurse for approximately 17 years at the Mid-Western Regional Hospital, Dooradoyle, Limerick. In January 1995, the Board sought a candidate for a newly established position of Audiometrician (now Audiologist). The worker concerned was the successful applicant. The Union's case is that the worker should be paid a Dual Responsibility Allowance (as per the Department of Health Circular S103/31) and that it should be retrospective to January, 1995. The Union claims that the worker's substantive post remains that of a nurse and she has not, to date, been appointed as an Audiologist. The Board's view is that she is an Audiologist and that she is not required to do nursing duties.
In January, 2001, the Department of Health and Children sanctioned a new post of Chief Audiologist for the Board. The salary at the time was on a par with the CNM 2 grade. Following a review, this was changed to CNM 2 grade with dual responsibility allowance in recognition of the nursing role involved. In Summer, 2001, the worker concerned was offered the post of Acting Chief Audiologist, pending the permanent filling of the post. The offer was unacceptable to the worker. The Union sought to have the post of Chief Audiologist filled by upgrade / confined competition. (The Union claims that this is how the post is filled on a national basis but this is disputed by the Board which maintains that it is by open competition). The worker is now graded as Senior Staff Nurse and her salary is 'red circled', as it has been since 1995.
The dispute was referred to a Rights Commissioner and his recommendation was as follows:-
In the circumstances I recommend that :
- the Board should now repeat its offer to appoint the worker to the position of Acting Chief Audiologist, pending the holding of an open competition for the equivalent permanent post,
- the Board should offer the worker, as an exceptional measure, a once-off ex gratia lump sum of €5,000 in recognition of her long years of service in this area,
- the worker and the INO should accept these offers in full and final settlement of all matters in dispute between the parties.
3. 1. The Board specifically sought a nursing qualification as a pre-requisite to the appointment of a Audiologist. The worker has continued in her (Senior) Staff Nurse post while simultaneously filling the role of Audiologist. As such, she fulfils the criteria necessary to receive the Dual Responsibility Allowance.
2. The Board has chosen to make full use of the worker's nursing experience but has failed to reward her appropriately. Her dual role has ensured a huge saving for the Board. In financial terms, the allowance amounts to only €3,243 per annum.
4. 1. The worker signed an agreement in 1995 to perform the duties of Audiometrician (now Audiologist). The Board at no time sought to recruit a nurse / Audiometrician.
2. The worker's salary as a Staff Nurse was 'red-circled' as it was higher than that of an Audiometrician, and she is now graded as Senior Staff Nurse where her pay is also 'red-circled'.
3. The Board does not believe that the worker carries out duties which would qualify her for the allowance i.e. undertaking substantial additional duties / responsibilities not directly related to her post. The Department of Health and Children accepts the Board's position on this issue.
On the issues before it the Court's decision is as follows:
Although the appellant may have been using her nursing skills in her current role, management have clearly stated that this is not a requirement for the job. Management have also clarified that if a nursing requirement arises then the management will supply a nursing service.
Management position is that the appellant should perform only the function of Audiometrician, now Audiologist. Given that situation there is no basis for an ongoing claim for payment of a duel responsibility allowance.
2.Retrospective Payment :
While the management position is as stated above, it is clear that the appellant has been using her nursing qualifications in the post she currently holds, even if not required to do so by management.
Given that situation and the fact that her role is now clearly defined as Audiologist only, the Court believes that the €5,000 ex gratis payment awarded by the Rights Commissioner should be seen as meeting the Union claim for retrospection.
Management argued that the Department of Health and Children circular binds it into having an open competition.
The Union produced a number of areas where it claims that this had not taken place.
Having examined all the written and oral information on this issue, the Court recommends that an open competition should take place in relation to the post of Chief Audiologist.
The Rigth's Commissioner's Recommendation to be amended as above.
Signed on behalf of the Labour Court
3rd April, 2003______________________
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.