LCR22513

1.Appeal of Adjudication Officer Decision No: ADJ-00026986, CA-00034523-001.

BACKGROUND:

2.The Worker appealed the Adjudication Officer’s Recommendation to the Labour Court on 25 August 2021 in accordance with Section 13(9) of the Industrial Relations Act, 1969.

On 19 July 2021 the Adjudication Officer issued the following Recommendation:

“I am recommending that the employee be paid for the last three years she was entitled to this

allowance: 2017 and 2018: €2791 and 2019: €744 with the total amount being €6,326.’’

A Labour Court hearing took place on 14 December 2021.


WORKER’S/UNION’S ARGUMENTS:

1. The Worker was not aware of their allowance entitlement until 2019.

2. The Employer was aware of the Worker's qualification and should have been paying the allowance from the commencement of her employment

3. The Worker should be retrospectively paid her allowance, dated from the commencement of her employment in 2009.

EMPLOYER'S ARGUMENTS:

1. Payment of the allowance is subject to the Worker making a written application, using the appropriate form, to Management.

2. No such application was received from the Worker till March 2019. The Employer began paying  the allowance after this was received. 

3. The Employer finds, in these circumstances, retrospective payment from 2009 is unreasonable and would disproportionally impact on their annual budget.

DECISION:

Background to the Dispute/Appeal

This matter came before the Court by way of an appeal by the Worker from a Recommendation of an Adjudication Officer (ADJ-00026986, dated 19 July 2021) under section 13 of the Industrial Relations Act 1969. Notice of Appeal was received by the Court on 25 August 2021. The Court heard the appeal in Dublin on 14 December 2021.

The Worker was employed as a Clinical Nurse Specialist (‘CNS’) at St James’ Hospital, Dublin (‘the Employer’), between September 2009 and 15 March 2020, the date of her resignation. The Worker’s contract of employment (signed by the Parties on 7 September 2009) placed the Worker on point 1 of an incremental scale that ranged, at that time, from €50,096.00 to €59,570.00 per annum. The contract also contained the following provision: “Individual claims for incremental credit (i.e. verification of previous relevant work experience) must be made within the first six months of employment. Claims received after 6 months will not be processed retrospectively.)

Prior to her appointment to St. James’ Hospital, the Worker had successfully obtained an MSc qualification which entitled her to apply for and receive the CNS allowance. The Worker submits that she was unaware of her entitlement until the nurses’ strike in 2019 at which time she applied for, and was granted, the allowance going forward. In these proceedings – initiated by the Worker on 7 February 2020 - she is seeking retrospective payment of the allowance from the date of her appointment in 2009 to the date her Employer commenced payment of it to her in March 2019. The Worker was partly successful in her claim before the Adjudication Officer who recommended that the allowance be paid to her retrospectively for 2017, 2018 and the early months of 2019. The Employer did not appeal from this Recommendation.

Preliminary Objection to the Court’s Jurisdiction

The Employer submits that the within dispute is of a collective nature and that the Adjudication Officer – and the Court by extension – had no jurisdiction to deal with it having regard to the wording of section 13(2) of the Industrial Relations Act 1969. The Court has considered the Employer’s submission in this regard and is satisfied that circumstances of the within dispute are particular to the Worker and do not give rise to a trade dispute relevant to ‘a body of workers’.

Contractual Provision

The Employer does not dispute that the Worker was appropriately qualified and eligible at all material times to receive the CNS allowance. However, it submits, payment of the allowance was subject – as per the contractual provision quoted above – to the Worker making a written application, using the appropriate claim form – to Management. As the Worker made no such application until March 2019, the Employer further submits that the Worker’s claim for retrospective payment of the allowance for a period of over 9 years is unreasonable and, if upheld, would disproportionately impact on the Employer’s annual budget.

Decision

The Court is at a loss to understand how the Worker continued to be unaware, for almost a decade, that she was not in receipt of an allowance to which she was entitled by virtue of her qualifications. It is not reasonable for the Worker to expect full retrospective payment of the CNS allowance in the circumstances. However, the Employer’s seemingly total abrogation of responsibility in relation to ensuring that a person such as the Worker who is recruited to a CNS role is in receipt of all pay and allowances to which they are entitled is equally unreasonable and unjustifiable. In all the circumstances, therefore, and having regard to the fact that the Employer did not appeal from the Adjudication Officer’s Recommendation, the Court upholds that Recommendation in its entirety.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
CN	______________________
20 December 2021	Deputy Chairman