ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00011230
Parties:
| Complainant | Respondent |
Anonymised Parties | Psychiatric Nurse | A Healthcare provider |
Representatives | Psychiatric Nurses Association |
|
Dispute:
Act | Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00014939-001 | 11/10/2017 |
Date of Adjudication Hearing: 08/03/2018
Workplace Relations Commission Adjudication Officer: James Kelly
Procedure:
In accordance with Section 13 of the Industrial Relations Acts 1969 following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
Background:
The complainant claims that she qualified for the payment of a Specialist Qualification Allowance in 2011 which was not paid to her until 2016 after management conceded that she qualifies for payment of the allowance. She claims that the respondent is still refusing to make retrospective payments for the 4 to 5-year period. The respondent claims that the complainant’s 2011 application for the Specialist Qualification Allowance was not approved, whereas her 2016 application was approved. It claims that there are no retrospective payments to be considered. |
Summary of Complainant’s Case:
The complainant claims that she qualified with a degree in mental health nursing in 2007 shortly after commencing work with the respondent. She worked in many areas within the mental health services area and in 2010 she commenced working in Acute Services. In 2011 she completed her postgraduate diploma in mental health nursing, which is a level 9 qualification. She said that of the 20 or so people that completed the course 5 were work colleagues of hers but not in Acute Services. She said that immediately after graduation it became apparent that all of her 5 work colleagues had received payments of the Specialist Qualification Allowance but she had not. She claims that the allowance was paid to nurses who had a recognised relevant skills based qualification, which they were using in the course of their work. The complainant claims that at the time she approached the Acting Head in the department regarding the allowance and was informed that the payment was no longer being made by the respondent. She said she was told that a review was ongoing at the time and the allowance was only classified as a ‘new beneficiary’, which she is not. However, if she had been a ‘new beneficiary’ she would have qualified for payment. She claims that the advice given to her at the time by the Acting Head was completely erroneous. She said that knowing that colleagues continued to receive payment of the Specialist Qualification Allowance she discussed it again with the new Director of Nursing in 2014, she said that he did not formally respond to her in writing but mentioned that she should consider taking up a different and more challenging position in another department and the respondent would align the allowance to that position. The complainant said that she did not believe that this was necessary to receive the allowance. The complainant again raised the issue with a new Director of Nursing who was appointed in 2016 and she sought a list of the complainant’s duties in order to make a decision. In March 2016, the allowance was finally approved. However, when the complainant sought retrospective payment back to 2011, when she first qualified for the allowance she was informed by the new Director of Nursing that she was not permitted to sanction retrospective pay ‘which is not supported by pre-existing approval or evidential documentation that the qualification allowance has been explicitly utilised to perform such duties in a specialist area of clinical practice appropriate to the qualification possessed by the nurse’; although the complainant claims that she was aware that her work colleagues were doing the same job as she was and were getting paid the allowance since 2011. The complainant states that she fits the criteria for payment of the allowance and should have been paid it along with her work colleagues following graduation in 2011. She said that she was finally paid the allowance after having to “jump through hoops to satisfy management” that her colleagues never had to do. She claims that management have conceded that she qualifies for the allowance and its refusal to retrospective payment is unbelievable. The complainant claims that she is owned €933 per annum for the period, end of 2011 to March 2016. |
Summary of Respondent’s Case:
The respondent accepts that the complainant is a Clinical Nurse Specialist working with it since 2007 and undertook an approved post graduate course which was completed in 2011. The respondent said that the complainant applied for the Specialist Qualification Allowance on completion of her course however the application was not approved by the then Director of Nursing. The complainant made a further application for the allowance in 2016 and was approved by the Director of Nursing. The respondent claims that the Specialist Qualification Allowance is payable to all nurses employed directly on the duties in specialist areas of clinical practice appropriate to the qualification held. The allowance is only payable to nurses that are deployed on duties relevant to their qualification. The Director of Nursing in each department determines whether the applicant for the allowance is deployed on relevant duties to the qualification held. The respondent points out to the wording in guidelines drawn up in relation to the Specialist Qualification Allowance, particularly where there is a requirement for an application by the nurse, and “it will be a matter for the employer to decide whether or not a nurse is engaged in a specialist area on specialist duties”. The respondent claims that there does not appear to be any documented formal written application made by the complainant in 2011. The then Director of Nursing has subsequently moved on and there are no records on file. However, it would appear that the Specialist Qualification Allowance was not approved and it can only be deduced that the then Director of Nursing was of the opinion that the complainant was not directly completing the range of specialist duties appropriate to her post-graduate qualification. The respondent said that the complainant made a further application in 2016 supported by evidence to utilisation of the range of specialist duties and her application was successful. The respondent said that each application is considered on its own particular merits. The respondent maintains that it cannot sanction retrospective payments if it does not have any pre-existing approval or evidence that her qualification had been explicitly utilized to perform clinical duties in a specialist area of clinical practice appropriate to her qualification existed and that this is necessary for approval of payment in line with the guidelines. |
Findings and Recommendation:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute. It was not in dispute between the parties that the complainant has exhausted the internal grievance procedures prior to the referral of the present dispute to the Workplace Relations Commission. Having given careful consideration to the extensive and helpful oral and written submissions from both parties to this dispute I have made the following conclusions and recommendation. I note the complainant completed her postgraduate diploma in mental health nursing in 2011 and applied at that time after her graduation for payment of the Specialist Qualification Allowance. It is clear that it had come to her attention that 5 other work colleagues, who had completed their postgraduate diploma in mental health nursing, working at the same location as her but not in the same department were receiving payment of the Specialist Qualification Allowance. I note the respondent is not disputing that it received the application for payment of the Specialist Qualification Allowance from the complainant in 2011 and the application was not approved by the then Director of Nursing. I am satisfied that the respondent requires an applicant to make a formal application for payment of the Specialist Qualification Allowance and that the application is then considered to determine if the specialist duties are being utilized by the applicant in the area of clinical practice. I find that the overarching guidelines in relation to the approval or not of the application for the allowance is on the basis that the applicant is engages in the specialist area on specialist duties and that is a matter for the respondent to determine. I accept that this is proper and appropriate. The Director of Nursing, as is in this case here, would be best positioned to make that decision about one of its nurses. I note that the complainant’s application for payment of the qualification allowance in 2016 was found in her favour and the reasons for that decision were based on the respondent requesting and being furnished with a list of the complainant’s duties to assist in the decision-making process. Accordingly, I note that the complainant sought retrospective payment from 2016 back to 2011 and this was refused on the basis that there was no “pre-existing approval or evidential documentation that the qualification allowance has been explicitly utilised to perform such clinical duties on a specialised area of clinical practice appropriate to the qualification possessed by the nurse”. I find that the decision maker’s reason is fair and well-reasoned. I note that the complainant claims that she pursued this case with the various holders of the decision maker’s office and she claims that she received inter alia erroneous advice. I find that there is a lack of documentary evidence - a paper trail - up until 18 October 2014 when the complainant seems to raise this issue formally with her employers. However, there is a mixture of no replies and replies that fail to address the complainant’s request to be considered for the Specialist Qualification Allowance. This is finally addressed by the respondent in its decision in March 2016 on the arrival of the new Director of Nursing. I note the complainant states that her role remained the same and consistent throughout that time. I note that this has been a frustrating period waiting for this issue to be considered and ultimately addressed. Notwithstanding my finding above, that the most appropriate decision maker on whether to grant or not the Specialist Qualification Allowance is the employer, I am satisfied that an applicant is not debarred from making multiple applications for the Specialist Qualification Allowance throughout their career. I understand that it is accepted by both parties that the complainant has made at least two applications for the Specialist Qualification Allowance – one in 2011 and then in 2016. However, the application in 2016 stems from her persistence following up on matters from October 2014. Had her request been addressed properly in 2014 there is no reason to believe that she would have been successful and qualified for the Specialist Qualification Allowance – noting that her role has not changed subsequently – but we will never know. I believe that I understand how the application procedure operates and I am satisfied that I have no role in second guessing the appropriate decision maker’s assessment as to whether the complainant was entitled to the allowance in 2011 or thereafter. However, it seems unfair in this instance that the complainant had asked for a review of her application for the Specialist Qualification Allowance and she did not get a decision ultimately from October 2014 until March 2016 when finally, the matter was dealt with. Accordingly, I think that it is appropriate to recommend that the complainant receives retrospective payment from March 2016 back to October 2014, the time in which she sought a decision on her entitlement for the Specialist Qualification Allowance. This payment equates to roughly one and a half years’ entitlement to the allowance as a form of compensation for the frustration suffered. Accordingly, I recommend that the respondent pays the complainant a lump sum of €1,500 as full and final settlement of this dispute. I make this recommendation on the specifics of this case, and for this case only, and it shall not set a precedent for the granting of the Specialist Qualification Allowance or retrospective payments. |
Dated: 18th June, 2018
Workplace Relations Commission Adjudication Officer: James Kelly
Key Words:
Industrial Relations Act - Specialist Qualification Allowance - compensation - full and final settlement. |