FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : ADELAIDE & MEATH HOSPITAL - AND - A WORKER (REPRESENTED BY INMO) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Ni Mhurchu |
1. Appeal of a Recommendation of a Rights Commissioner R-091775-IR-10/JW
BACKGROUND:
2. The issue before the Court concerns an appeal of Rights Commissioner Recommendation R-091775-IR-10/JW. The Worker commenced employment with the hospital in September, 2006 as a Clinical Trial Nurse. It is the Union's position that she was placed on the correct incremental pay scale but was not paid a location allowance to which she was entitled. The Worker raised the issue of the allowance through her Line Manager in August, 2009. Management informed the worker she would receive retrospective payment for 18 months. At the Rights Commissioner hearing, the Union sought retrospective payment for the entire period of her employment. The Hospital's position is that in 2009 consideration was required as to whether the location allowance was applicable to Clinical Trial Nurses. After discussions with the Managing Consultant of Clinical Trials in was decided to apply the allowance from a current date. Upon further review it was decided to back date payments to May 2008 as a once off good will gesture.
The matter was referred to a Rights Commissioner for investigation and recommendation.On 6th October, 2010 the Rights Commissioner issued his Recommendation as follows:
"Based on the evidence presented at the hearing I find that the complaint is well founded. I recommend that the employer pay to the claimant retrospective payments due from September 2006. This payment should be made within 6 weeks of this recommendation."
On the 13th August, 2010, the Employer appealed the Rights Commissioner's Recommendations to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969.A Labour Court hearing took place on the 6th January, 2011.
UNION'S ARGUMENTS:
3. 1 As part of the settlement of the Nurses dispute in 1999, all nurses working in Oncology Units are paid a location allowance. This allowance is not a discretionary payment.
2 The Hospital arbitrarily chose to pay the allowance retrospectively for 18 months. There was no reason given as to why this is the case. It is unfair and inequitable that the Worker should be treated less favourably than her colleagues who have always been in receipt of the allowance.
3 There is no agreement with the Union that such allowances are only processed from the current date and going back further than 18 months would be outside of hospital practice.
EMPLOYER'S ARGUMENTS:
4. 1 The Hospital custom and practice is that normally claims are only processed from the time of the formal application or complaint by the individual worker and in the alternative, that 18 months retrospection be paid. This has been accepted by the Union in previous cases. There is no reason to deviate from this custom and practice in this case.
2 The Hospital decided to use its discretion to pay the location allowance to the Worker. The Circulars concerning the location allowance do not mention those engaged on clinical trial duties and as such the hospital should not be penalised for using its discretion.
3 The Worker's salary was fully in line with the contract of employment offered and accepted.
DECISION:
The appeal before the Court concerns the Hospital’s appeal of the Rights Commissioner’s recommendation, which found that the Claimant was entitled to a retrospective payment of a Location Allowance back to September 2006.
The Hospital appealed the Rights Commissioner’s Recommendation on the basis that the Location Allowance was not part of the Claimant’s contractual remuneration at the time of her recruitment in September 2006. It held that following a claim made in August 2009 for application of the Allowance, the Hospital decided to apply it to the Claimant and her colleagues in the Oncology Clinical Trials Department, on a discretionary basis, and to pay 18 months retrospection as a goodwill gesture.
The Claimant, represented by INMO, held that the Claimant was rightfully entitled to payment of the Allowance in accordance with Department of Health and Children Circulars 119/99 and 33/2004.
Having examined the oral and written submissions of the parties the Court is not satisfied that the decision to grant the Allowance in August 2009 to the Claimant (and to all nurses in the Oncology Clinical Trials Department) was due to any changes taking place warranting the application of the Allowance and consequently cannot find grounds why it was not applicable to the Claimant since the commencement of her employment in that Department. Therefore, the Court concedes the Claimant’s claim for retrospection back to September 2006.
The Court concurs with the Rights Commissioner's findings and therefore, upholds his recommendation. The Hospital's appeal fails.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
21st February, 2011______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to David P Noonan, Court Secretary.