Worker

Employer

Anonymised Parties

A Staff Nurse

An Addiction Service

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00003386

07/11/2024

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The employer is a health care provider operating in this instance in the field of addiction services.

The worker is the senior staff nurse from June 2021 to September 2022 was the only qualified nurse in an addiction/social inclusion service due to her CNM 2 being an extended sick leave.  During this 14-month period, she managed the service alone supporting up to 120 clients without consistent GP healthcare assistant or clerical support. While her employer attempted to replace her CNM2 during the sick leave period this post remained unfilled.

Despite raising concerns about her workload and unsafe conditions with the active manager her efforts to seek support were largely unmet.  She lodged a grievance in January 2023 and mother support issues were raised. Although management acknowledged her situation and agreed to review it, there was a significant delay in response and her claim for remuneration was declined.

The final response from Management indicated that no remuneration would be granted, citing a lack of evidence that the worker was asked to assume the CNM2 duties.

The employer does not accept the complainant covered the duties of the CNM2.  While it is acknowledged that the worker supported the service while her colleague was on sick leave she had the support of a CNM1 in the Midland area and as well as the support GP’s and other staff members.

The employer noted that the worker did not raise the issue of payment until someone's after her colleague returned from sick leave. It also noted that the worker had a grievance heard through all stages of the grievance procedure.  It was noted that governance and supervision structures were put in place while the CNM2 was on leave therefore the worker was not entitled to a temporary higher appointment.

The employer submitted that the worker should have sought an acting-up allowance within a week of undertaking the higher duties.

The employer noted that there were multiple issues raised as part of the grievance process but apologise for the delay in concluding matters.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

The worker took a grievance which was considered at Stage 1, Stage 2 and Stage 3. At stage 1 it was acknowledged that she undertook the nursing duties and responsibilities to run the clinics.  It was also acknowledged that she undertook these duties are very challenging time for the service due to the COVID pandemic. It was noted that the consideration of the grievance was limited by the HR circular on acting up, that there was a lack of evidence for a request for the worker to undertake such duties and notes that the decision maker must adhere to the processes that are available to her.

The second stage of the grievance reiterated the findings of the first stage.  The decision maker at this stage outlined the compliant but he did accept from the hearing or the supporting material that there were some tasks actions requests from support that the worker undertook which would have been done by her line manager. Given the circumstances of the case and as a gesture of goodwill he authorised three additional days of annual leave for the worker.

Under Stage 3 of the grievance procedure, that decision maker noted that it was important to acknowledge the commitment that the worker has demonstrated in her willingness to engage with management and prioritise duties in addiction services. She acknowledged that there was a delay in responding to the grievance caused by the restructuring of the employer. However, she knows it that having examined the case in detail she could find no evidence of a request from management for the worker to fill the CNM2 post in a temporary capacity. In addition, she noted that the worker was advised to bring any issues or concerns to the clinical lead and the addiction services manager, who appeared to be the correct line of governance for requests for additional allowances. The decision maker noted that she could not find any sign or proof of attempts to seek this.

Having considered the manner in which the worker went about undertaking the duties of more senior personnel and the manner in which three stages of a grievance procedure determined that because she didn't look for an acting up allowance at the time, she couldn't then get one after the fact, it would appear that the only course of action for a person who is asked to undertake the duties of a more senior staff member when they are out on leave, is to refuse to undertake those duties until such time as matters such as an acting up allowance are clarified.  If it is clarified to an individual that no acting up allowance is to be payable, it is there after up to that individual together perhaps with their union representation to decide whether such duties should be undertaken on a short term temporary basis, on the longer term temporary basis or indeed at all. The rigidity of approach taken by all three decision makers and the grievance procedure lends itself towards a more rigid approach by staff and unions.

My recommendation is that where a worker is asked to undertake staffing duties of a more senior colleague, they should ascertain the length of time that they have required to undertake these duties before agreeing to undertake them and whether they are going to receive additional payment before agreeing to undertake them.

Although taking a rigid approach to the issue of an acting up allowance, the employer takes a less rigid approach to the processing of a grievance.  There seemed to have been a number of delays in the processing of a grievance. Stage 1 was submitted in early January 2023, with a result being produced in September 2023.  Stage 2 was lodged in mid-October 2023 with a result issuing in March 2024 while the Stage 3 claim was lodged in early April 2024 with a decision issuing ion 26 September 2024.  In the circumstances it is appropriate to make a recommendation that the employer adhere to prompt guidelines, which should be laid down in the grievance procedure and to make a further recommendation that the employer pay the worker €2000 for the inordinate delay in processing the grievance.

IR dispute – Acting-up allowances – grievance procedure delays – recommend award in light of the delay