INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969
SOUTH EASTERN HEALTH BOARD
- AND -
Chairman: Ms Jenkinson
Employer Member: Mr Keogh
Worker Member: Ms Ni Mhurchu
1. Payment of subsistence
2. The worker has been employed as a Clinical Nurse Manager 2 (CNM2) in the community in Kilkenny since April, 2002. Prior to that he held the grade of CNM 1 since 1987. He currently works every second weekend. The worker is in receipt of a community allowance on a 'red-circled' basis. The allowance is to compensate psychiatric nurses who work in the community and, thus, are unable to attract night duty or weekend premium. The Board's case is that it discovered in April, 2002, that the worker (plus 3 of his colleagues) was in receipt of a subsistence allowance that he was not entitled to. Management decided to stop payment of the subsistence allowance but did not seek to recoup any over-payment made. The worker claims that there was an agreement with Management in 1987 that the subsistence allowance would be paid to him.
The worker referred his case to the Labour Court on the 30th January, 2003, in accordance with Section 20(1) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 4th of April, 2003, in Kilkenny. The worker agreed to be bound by the Court's recommendation.
3. 1. Management agreed in 1987 - as part of his working conditions - to pay the worker the subsistence allowance to compensate for the loss of night duty earnings. This allowance was stopped without notice in April, 2002, causing stress to the worker and his family.
2. The worker has given 40 years' excellent service and this has been acknowledged by the Board. He is disappointed by management's behaviour in this instance.
4. 1. The worker is in receipt of a community allowance on a "red-circled" basis despite the fact that he works every second weekend. The allowance is not normally paid to employees who work weekends or night duty.
2. The worker is entitled to a subsistence allowance when he fulfils the same criteria as the rest of the Board's employees. However, he is not entitled to the "subsistence" allowance he has claimed since 1987. The Board did not recoup any of the overpayment in April, 2002.
The Court has considered the written and oral submissions of the parties. The Court is of the view that the Board has a liability for allowing a payment of subsistence allowance for a period of 15 years which was not in line with the criteria outlined in Public Sector Circular 11/82. Whilst the true nature of the 1987 verbal agreement may never give clarity, the claimant had an expectation that the allowance would continue to be paid. The sudden cessation of the allowance without explanation has caused severe personal distress for the claimant.
The Court accepts that there is no justification for the payment of the subsistence allowance due to the nature of the claimant's work. The Court recommends that the claimant should accept this fact and, in all the circumstances of this case, recommends that the Board should agree to make a payment of €500 as a gesture of goodwill.
Signed on behalf of the Labour Court
15th April, 2003______________________
Enquiries concerning this Recommendation should be addressed to Ciaran O'Neill, Court Secretary.