INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
NORTHERN AREA HEALTH BOARD
- AND -
(REPRESENTED BY IRISH NURSES ORGANISATION)
Chairman: Ms Jenkinson
Employer Member: Mr Grier
Worker Member: Ms Ni Mhurchu
1. Appeal of Rights Commissioners Recommendation IR16922/03/TB.
2. The appeal concerns a worker who is employed as Director of Nursing at Lusk Community Unit since 19th November 2001. Prior to this she was employed in Baggot Street Hospital since 1989 as a Stoma Therapist, this involved initial employment at Staff Nurse level with subsequent regrading to Clinical Nurse Manager 2 level. From 2000 to 2001 she worked in the position of Acting Director of Nursing. In 1989 the claimant negotiated two additional days annual leave and two privilege days per annum on a personal to holder basis. On her appointment to Lusk her conditions of employment did not include the four extra days which she had enjoyed since 1989. The Union, on behalf of the worker, claimed the retention of the four days. Management rejected the claim. The dispute was referred to a Rights Commissioner for investigation and recommendation. On the 9th March, 2004 the Rights Commissioner issued his recommendation as follows:
"I recommend that the claimant be paid eight days pay in respect of the years 2002/2003.
I further recommend that the two privilege days be phased out as follows:
2004 - 4 days
2005 - 3 days
2006 - 2 days
The two extra days should be retained on a red circle basis thereafter".
On the 30th March,2004 the Board appealed the recommendation to the Labour Court. The Court heard the appeal on the 24th June, 2004.
3. 1. There is no formal agreement in relation to the additional leave benefit enjoyed by the claimant in her previous post.
2. Annual leave for each grade of nursing has been set and agreed nationally. Any additional leave or other benefit above the norm,which a worker may have gained through a local initiative or negotiation does not travel with that worker on promotion, either within the health board or with another health employer in the country.
3. Nurses working in Lusk Community Unit or any other similar facility do not receive privilege days. The claimant is being treated more favourably than her colleagues and fellow nurses throughout the Board's area if she accesses privilege days in her current post.
4. Concession of the claim would set a precedent and have major repercussive effects for all grades of staff throughout the health service.
4.1. It is a well established, time honoured principle of employment that a worker's conditions should not deteriorate on promotion. This is clearly being breached in this case. It does not make sense to expect a worker to agree to a loss of a previously negotiated 'personal to holder' benefit, which travelled with her through promotional grades, and then to lose it on promotion to her most senior position.
2. The claimant retained this additional leave throughout her employment in Baggot Street which spanned across three grades (Staff Nurse, CNM 2, Assistant Director of Nursing). Had she been promoted to Director of Nursing in Baggot Street she would almost certainly have retained this benefit on a personal to holder basis.
3. The leave is personal to holder and will not result in knock-on claims. She has retained this benefit for ten years.
The Court has considered the written and oral submissions of both sides. Having examined the facts, the Court does not uphold the Union's position that an entitlement to extra days annual leave, negotiated on a personal to holder basis in Baggot Street Hospital, should apply to the position competed for in Lusk Community Unit.
However, in all the circumstances of this case, the Court decides that the four additional days should be phased out as follows:-
2004 - 4 days
2005 - 3 days
2006 - 2 days
2007 - 1 day
The Court does not recommend retrospection in respect of the years 2002/2003 when this issue was the subject of dispute.
Accordingly, the Rights Commissioner's recommendation is varied.
The Court so decided.
Signed on behalf of the Labour Court
8th July, 2004______________________
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.