INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
HEALTH SERVICE EXECUTIVE EAST COAST AREA
- AND -
(REPRESENTED BY IRISH NURSES ORGANISATION)
Chairman: Mr McGee
Employer Member: Mr Doherty
Worker Member: Ms Ni Mhurchu
1. Appeal of Rights Commissioner's Recommendation IR18412.
2. The appeal concerns a worker who was employed as CNM 2 in Our Lady's Hospital for Sick Children in Crumlin. In 2002 she applied for sponsorship for the Higher Diploma in Public Health Nursing and permanent employment as a Public Health Nurse (PHN). She was successful and was appointed as a PHN with effect from 23rd September, 2003. She was appointed on the 1st point of the PHN salary scale which was approximately €7,000 per annum less than her previous salary as a CNM 2. The Union claimed that this decision by Management was incorrect and that her previous experience in Crumlin hospital be recognised for incremental purposes, that she be placed on the appropriate point of the PHN scale with retrospective effect and that she be awarded compensation for the hurt, stress and humiliation suffered resulting from the Employer's actions. Management rejected the claim. The dispute was referred to a Rights Commissioner for investigation. On the 7th September, 2004 the Rights Commissioner issued his recommendation as follows:
"I recommend that the claimant be placed on point 5 (€42,583) of the P.H.N. scale with effect from the date of her appointment as a Public Health Nurse."
Subsequently both parties appealed the recommendation to the Labour Court. The Court heard the appeal on the 19th January, 2005.
3. 1. The claimant, in adding value to the Public Health Nursing system by virtue of her expertise as a CNM 2, and additional qualifications in Public Health Nursing, is being penalised by the Employer by approximately €7,000 per annum.
2. The Employer's position in this regard ignores the spirit of previous agreements, Department of Health Circulars, the Report of the Commission on Nursing and Labour Court and Rights Commissioners recommendations.
3. The Rights Commissioner recognised the Employer's treatment of the claimant as "unfair". However his recommendation penalises the claimant by approximately €4,000 per annum.
4. The treatment of the claimant is unfair and anomalous. If it is allowed to continue then it will act as a deterrent to experienced and expert Nurses entering Public Health Nursing.
4. 1. The claimant voluntarily moved from the post of CNM 2 and made a career move /choice to enter the Public Health Nursing Service. Public Health Nurses are not given incremental credit for General Nursing experience.
2. The claimant's sponsorship arrangements and subsequent appointment is in accordance with Department of Health Circular 85/2000. This Circular specifically states that any beneficiary of the scheme, when appointed on successful completion of their course, would commence at the minimum point of the PHN scale when appointed to the post of Public Health Nurse.
3. The Rights Commissioner's recommendation acknowledges that the claimant accepted the appointment on the basis as advertised i.e appointment on the 1st point of scale. His recommendation is at variance with the sponsorship scheme and breaches the agreement at national level.
In the view of the Court, Department of Health Circular 85/2000 was written in a certain context and at particular time. It clearly did not presage the type of situation which arose in this case, where a CNM 2 with many years of experience has opted to change the focus of her nursing career.
Given that a small number of nurses would come into this situation, that other former Health Boards have found ways of addressing the problem and that to suffer such a decrease in salary on appointment would not be the norm in the Public Service, the Court decides, in the exceptional circumstances outlined, to disallow the Board's appeal, allow the Union's appeal and to vary the Recommendation of the Rights Commissioner to allow the claimant full incremental credit.
Signed on behalf of the Labour Court
31st January, 2005______________________
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.