INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
HEALTH SERVICE EXECUTIVE - SOUTH EAST REGION
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Ms Jenkinson
Employer Member: Mr Grier
Worker Member: Mr O'Neill
1. Appeal of Rights Commissioners Recommendation R-033528-IR-05/DI.
2. The Claimant is employed as a Staff Nurse in the CSSD Department of St. Lukes General Hospital. She job-shares with a colleague. In 2002 Management decided to upgrade the Staff Nurse post to a CNM1 position. The claimant applied unsuccessfully for the position, when it was advertised. The Position was filled by a colleague of the Claimant of a panel of one.The Claimant was not placed on a panel. The Union's claim is that the post of CNM1 exists within the CSSD area and that the claimant has covered the duties of this position since its inception. The Claimant is seeking to be paid the acting CNM1 allowance plus appropriate retrospection as her duties have continued to reflect the duties of that position. Management rejected the claim. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 15th July, 2005, the Rights Commissioner issued his recommendation as follows:
“This dispute has arisen due to there being no consultation with the Union when the CNM1 position in CSSD was redeployed to MAU in 2002/2003. However, I find that the absence of consultation regarding the redeployment does not result in the claimant having a right to receive an acting CNM1 allowance. I accept the HSE-SER's argument that the claimant has not been asked to take on additional responsibilities that are consistent with the job specifications for the CNM1 position".
On the 25th August, 2005 the Union appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 19th September, 2006.
3.1 The Claimant has a vast amount of experience within the HSE having been a nurse since 1973 and the work she was doing was appropriate to the CNM1 position.
2. The Claimant's colleague, a CNM1 created a void following her promotion to CNM2. No panels were in place for CNM1 or CNM2 prior to 2003.
3. It is common practice within the HSE that nurses who may act up in CNM1 positions may not have responsibility to staffing levels or to the supervision of staff, as on many occasions a number of CNM1's within the HSE would have this position as a result of responsibilities to the post.
4. The common practice within St. Lukes is in the absence of a panel the most senior person within the area would act up until the position was filled.
4.1 The Claimant is a valued member of the team in the CSSD Department of St. Lukes. She has acted up for the CNM2 when the CNM2 was on leave etc. and has had the equivalent acting up allowances applied to her for these periods.
2. The Claimant has not been asked at any time in the past nor is she expected to carry out any of the additional responsibilities that are consistent with the job description of a CNM1.
3. If there was a CNM1 post assigned to the CSSD the claimant was not successful at interview and the post would have been filled via a further subsequent recruitment process. Furthermore, the Claimant has not worked since April, 2005, as she is now on a career break until October, 2007.
4. There is no CNM1 post currently sanctioned for this Department. Therefore the claimant cannot be acting into a post that does not exist.
Having considered the views of the parties expressed in their oral and written submissions, the Court is satisfied that the appellant was never at any time requested to take on the duties of a CNM1 position and therefore was not in an acting CNM1 role.
The Court fully concurs with the Rights Commissioner's findings and therefore upholds his recommendation. The Union's appeal fails.
The Court so decides.
Signed on behalf of the Labour Court
Enquiries concerning this Decision should be addressed to Jackie Byrne, Court Secretary.