FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE NORTH-EAST - AND - A WORKER (REPRESENTED BY PNA) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Appeal of a Rights Commissioner's Recommendation R-070570-11-08/JW
BACKGROUND:
2. The issue involves a claim by the Union on behalf of its member for payment of the Specialist Qualification Allowance in respect of a Masters Degree she received from Dublin City University. The claimant is employed by the HSE as a Clinical Nurse Specialist in Bereavement Counselling. In 2006, having completed a four year course at Dublin City University, the claimant was awarded a Masters degree in Integrative Counselling. Subsequently she applied for a qualification allowance and was refused by the HSE on the grounds that the course completed was not recognised as a Category II qualification by an Bord Altranais. The Union contends that the qualification should be recognised and its member be paid the qualification allowance from 2006.
The matter was referred to a Rights Commissioner for investigation and and recommendation. On the 7th December 2009, the Rights Commissioner issued his Recommendation as follows:
"I recommend that both parties to this dispute jointly contact Dublin City University and request that representations be made to An Bord Altranais for its approval of this MSc programme".
On the 13th January 2010, 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 2nd June 2010.
UNION'S ARGUMENTS:
1The claimant completed a course that is equivalent to courses that have previously been approved by An Bord Altranais. The course should be recognised by An Bord Altranais as a Category II course and therefore the Claimant should receive the qualification allowance as a result.
2 The employer has consistently supported the claimant throughout her studies and is willing to pay the qualification allowance once the course receives Category II recognition.
EMPLOYER'S ARGUMENTS:
1 The Employer is not disputing the fact that if the claimant's qualification was recognised by An Bord Altranais as a Category II course then the qualification allowance would have been granted to the Claimant. However, there is no local discretion which allows for management to grant the allowance until such recognition is granted
2 The Employer is aware of the difficulties associated with having qualifications recognised and believe that this is an issue that needs to be addressed at a national level as opposed to on an individual basis as cases arise.
DECISION:
The Employer argued that the appeal was out of time as it was not submitted to the Court until January 19th 2010 some six weeks and one day after it was issued by the Rights Commissioner. Having examined the record, the Court has established that it was first notified of the appeal in writing on 13th January 2010 and within the six week time limit. The appeal therefore is properly before the Court.
The HSE has in place a scheme which provides that "a qualification allowance is payable to nurses employed directly on duties in specialist areas appropriate to (approved) qualifications where they posess the relevant clinical qualifications". Following discussions with the Unions the HSE, in 2002, extended payment of the Specialist Qualification Allowance to all specialist courses confirmed as Category II or equivalent by An Bord Altranais".
The process for submitting qualifications for consideration by An Bord Altranais has varied over the years. At one time it was possible for individual nurses to submit their qualifications for assesment by An Bord Altranais. In recent years the Bord has altered its policy in this regard.
The current appeal to the Court arises out of an impasse in the current system for seeking approval for a specific qualification held by the Appellant. Both sides agree that the qualification has high clinical and academic worth and that the nurse meets all other conditions for payment of the allowance. However An Bord Altranais appears to have no procedure that enables it to assess the qualification and determine whether it is a Category II "equivalent".
The Court is of the view that the Nurse in this case is entitled to rely on the agreement entered into between the Nursing Alliance and the HSE in 2002. In doing so she is entitled to have her qualification assessed within a reasonable timescale. The responsibility for ensuring that this assessment is carried out rests with the HSE, her employer. The obligation is on it to resolve any procedural issues with An Bord Altranais in a timely manner. The Court is not satisfied that this obligation had been adequately discharged.
Accordingly, the Court's decision in this case is that the HSE should set about resolving this impasse within six months of the date of this Decision. If the impasse is not resolved within that time the HSE must pay an amount the equivalent of the Specialist Qualification Allowance to the Claimant until it is resolved and the assessment made. If the impasse is not resolved within twelve months of the date of this Decision the HSE must pay the Claimant the retrospection that would be payable to her had An Bord Altranais determined that the qualification in question which she holds is a Category II qualification.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
28th June 2010______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.