ADJUDICATION OFFICER DECISION

Adjudication decision reference: ADJ-00000053

Dispute for Resolution:

Date of Adjudication Hearing: 10/02/2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 6^th October 2015, the Complainant referred a trade dispute to the Workplace Relations Commission, pursuant to section 13 of the Industrial Relations Act. The dispute was referred to adjudication and a hearing was held on the 10^th February 2016. The Complainant attended with her trade union representative. The respondent was represented by IBEC and the HR Manager, HR administrator and the current Acting Director of Nursing attended on its behalf.

In accordance with Section 41(4) of the Workplace Relations Act, 2015 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.

Complainant’s submission and presentation:

The Complainant commenced her employment with the respondent in the year 2000. She was initially a junior Clinical Nurse Manager, and for the last six years has worked as a senior Clinical Nurse Manager, in charge of a named ward. Prior to her employment with the respondent, she worked as a nurse in a national tertiary hospital. She outlines that on the 1^st April 2014, the ward she managed began caring for a patient population referred to as the “frail elderly”. This group had greater needs than patients heretofore cared for on the ward, i.e. those recovering from orthopaedic procedures. The Complainant outlines that she was concerned that the respondent did not have the resources or procedures in place to deal with the greater needs of patients being cared for. She raised concerns with the then Acting Director of Nursing (not present at the hearing) and said that her communication with this colleague became difficult.

The Complainant outlines that the then Acting Director of Nursing made a suggestion in June 2014 that she (the Complainant) transfer to another named ward, where the patients did not have the same needs as those in her current ward. The then Acting Director of Nursing also suggested that the Complainant move to a Monday to Friday roster, when she was then working a 3-day or 4-day week (where she would work a 12-hour day on each day). The Complainant replied that she was very happy to remain on the ward. She later offered to work four midweek days in order to facilitate the respondent. At the June 2014 meeting, the then Acting Director of Nursing suggested that the Complainant undertake a particular training course and the Complainant said she would consider this. The Complainant said that some time later, she asked to undertake this course but was informed by the then Acting Director of Nursing that there was no funding to pay for this.

The Complainant refers to an incident of the 18^th July 2014, where a patient on her ward was gravely ill and required end-of-life care. This was the first such incident at the respondent hospital after it commenced caring for patients with such enhanced needs. There were no protocols in place to deal with end-of-life issues and she had not been supported by the then Acting Director of Nursing. There arose difficulties in arranging this patient’s transport to a moreappropriate care facility, and the Complainant was unable to gain the support of the then Acting Director of Nursing or that of the respondent CEO. Further to the events of the 18^th July 2014, the Complainant met with the then Acting Director of Nursing to raise her concerns about patient safety and the need for a risk assessment process. After this 45-minute meeting, the Complainant wrote to the then Acting Director of Nursing. In this letter dated the 22^nd July 2014, the Complainant raises the change of focus in the patients cared for at her ward, in particular the change in the dependency level of the patient. She outlines that the patients require a much higher level of attention and present issues in regard to falls, feeding, toileting, sensory and cognitive issues, wandering patients,wound pressure care, mobility, pain management and liaising with patients’ families. The letter also refers to the additional duties posed by the introduction of medical cover. She raises the issues of staffing levels and the need to carry out a risk assessment. The Complainant says that it was inaccurate to interpret this letter as her not being able to cope with the demands posed by the changing patient profile in her ward, as suggested at a later meeting by the then Acting Director of Nursing.

The Complainant raised other issues regarding her workplace. At the suggestion of a hospital consultant, she had asked the respondent whether she and other staff could visit other units that cared for a similar patient population as those cared for in their wards. The respondent availed of this suggestion, but at a time when the Complainant was on annual leave, so that she could not attend. In respect of the workforce review, there was a recommendation from the review that there be a twilight nurse and that she had pushed her nurses too hard and that she was over-nursing patients. Also raised is the manner in which the HR manager communicated to a staff meeting that an Acting Director of Nursing position was not to be advertised internally as no-one had the qualifications for the role. She also raises the manner the then Acting Director of Nursing treated her at two union meetings, in which the Complainant had acted for the union. She said that at this meeting, the then Acting Director of Nursing raised her unwillingness to work Monday-to-Fridays and her unwillingness to accept the findings of a workforce review. The Complainant said she also raised gaps in medical cover to cater for patient needs.

The Complainant said that on the 22^nd May 2015, the then Acting Director of Nursing informed her that she was being transferred from her ward to another ward in the respondent hospital. The then Acting Director of Nursing told her that she was not coping with the role and that she had become upset at a recent meeting. It was suggested that the Complainant could be referred to counselling from an external agency. The Complainant said that she did not agree to thetransfer and believed that she was being penalised for raising concerns about patient safety. She was taken aback by the statement that she was not coping and learnt from colleagues that staff generally in the hospital were aware of her pending transfer. On the 1^st June 2015, the Complainant commenced working in the new role and lodged a grievance complaint to the respondent.

The Complainant outlines that even though she remained a senior Clinical Nurse Manager in the new ward, she continued to carry a caseload. Her successor in her old ward was supernumerary, i.e. was not asked to carry a caseload and only carried out management functions. This colleague had been supernumerary in her previous role and continued after what was essentially a swap between them. The representative of the Complainant outlined that the union was pursuing a location allowance claim for the nursing personnel working on the specialist wards, meaning that the Complainant would not gain the benefit of this claim if it was, as expected, successful as she was no longer assigned to a specialist ward.

The grievance lodged by the Complainant was scheduled for hearing on the 4^th June 2015. This meeting was attended by the HR manager, the HR Assistant, the Complainant and the union representative (all present at this adjudication). The meeting came to an abrupt end on the question of whether the union representative should speak on behalf of the Complainant. Correspondence was subsequently exchanged between the parties on this question and the grievance never came to a conclusion.

In concluding comments, the Complainant said that no reason had been given to justify her transfer other than she was not coping. She said that she did not accept that this was the case. She said that she had to progress the grievance to Stage 3 as she was told that she was to be transferred within a short period of time.

Respondent’s submission and presentation:

The respondent is primarily an orthopaedic hospital, but also caters for geriatric patients, referred to the hospital for rehabilitation prior to their discharge. In respect of medical care provided at the hospital, this had previously been in the form of a GP service but this had been greatly enhanced during 2014 and 2015 tocater for the additional demands arising from the needs of thegeriatric patient group cared for in two and a half wards. The respondent had engaged a workforce review, where identified changes needed in the mixof skills on wards and in relation to how tasks were carried out. On the basis ofthe review, the respondent determined that the senior Clinical NurseManagers in each of the wards catering for the geriatric population would besupernumerary. There had been no supernumerary nurse managers in thehospital prior to the changes implemented on foot of the workforce review.The respondent refers to the Complainant’s contract of employment, which contains a flexibility/mobility clause. It states “In the interests of patient care and changing needs, staff are required to be completely flexible and are obliged to carry out duties in any department/location in the hospital or associated areas when required to do so by management.” The respondent also refers to the duties section of the contract that provides “Your duties and responsibilities will be appropriate to the post. In addition you shall undertake such duties and exercise such powers as the Hospital shall assign to or vest in you from time to time. Such duties, to include duties at other appropriate locations as the Hospital may require, will be notified to you.”

The respondent outlines that in April 2014, the patient profile changed in the ward managed by the Complainant. In April 2014, the then Acting Director of Nursing met with the Complainant, where the Complainant said that she did not have the skill mix to deliver patient care to the patients now cared for in the ward, who had conditions such as dementia or cognitive impairment. The then Acting Director of Nursing suggested that the Complainant transfer to an orthopaedic ward. At the meeting and in subsequent correspondence, the Complainant raised staffing and resource issues. In September 2014, a workforce review had been carried out by an external consultant; this identified that staffing needs were sufficient. The respondent outlined that there had been augmentation in medical services available at the hospital, from a starting point of a GP service only to additional medical cover and then to a service provided by SHOs, Registrar and Consultant cover, coming into force on the 1^st July 2015.

On the 22^nd May 2015, the then Acting Director of Nursing met with the Complainant to inform her that as of the 1^st June 2015, she is being transferred to an orthopaedic ward because of her expertise and experience in orthopaedic care. In submissions, the respondent makes reference to the relevant experience of the colleague who replaced the Complainant on the 1^st June 2015. The respondent states that the transfer did not change the Complainant’s terms and conditions of employment. In respect of the grievance, the respondent denies that it was not willing to pursue the Complainant’s grievance and refers to correspondence addressed to her trade union where it acknowledged the Complainant’s right to be accompanied by an official. It was submitted that the events of the 4^th June 2015 were such as to raise the respondent’s dignity at work policy and that its employees (i.e. their HR personnel) should not be subjected to the treatment as occurred at that time.

The HR manager outlined that at the meeting of the 4^th June 2015, she had wished to hear from the Complainant herself and not hear exclusively from the union representative. After she intervened to say this, the meeting broke down quickly and she expressed her unhappiness with what was said to her, in particular with regard to her qualifications. She denied that she had sought to prevent the Complainant from pursuing the grievance and this is why she corresponded directly with the Complainant to offer to meet her. The HR manager said that she commenced working with the respondent in February 2015 and had been handed over the recruitment of the Acting Director of Nursing. It had been her predecessor who had assessed that there was no suitable internal candidate, and since this time, she had advertised internally for the post on two occasions. The HR Assistant said that she had attended the meeting of the 4^th June 2015 in a note-taking capacity. The HR Manager had raised the issue of the union representative speaking on behalf the Complainant and that while this was the first grievance meeting she had attended involving a nurse, in grievances lodged by other members of staff, it was the staff member who spoke, with the union representative making additional contributions. The respondent submits that it was entitled to transfer the Complainant to another role and did so in order to provide for the efficient management of its resources. Given the Complainant’s experience in orthopaedic care, it is submitted that it was reasonable to transfer her from a ward comprised of geriatric patients to one comprised of orthopaedic patients. Another senior Clinical Nurse Manager was moved into her role and there were two occasions in which junior Clinical Nurse Managers were transferred. The respondent says that it is difficult to see why the Complainant should now have an issue with the transfer given the contents of her letter of the 22^nd July 2014. The respondent states that there is no evidence that the complaints of June 2014 are in any way linked to the transfer of May 2015, and refers to the gap in time before the two events. The respondent denies that there was ever a gap in the medical care provided to patients.

Findings and reasoning:

Having considered the written and oral evidence and submissions, I make the following findings.

The first issue to address is the Complainant’s grievance of the 25^th May 2015, which was never concluded. The grievance relates to a decision of the respondent to transfer the Complainant from the ward she had managed for six years to an orthopaedic ward. The decision was communicated to the Complainant on the 22^nd May 2015 and took effect on the 1^st June 2015. The grievance was subject to a meeting on the 4^th June 2015. There appears to be a wider issue of speaking protocol at such grievance or disciplinary meetings and given that this is an individual dispute, it is not appropriate for me to make recommendations in respect of the wider issue. Irrespective of the circumstances of the 4^th June 2015 meeting, it is most unsatisfactory that an employee, such as the Complainant, is left for so long with an outstanding grievance and has to refer the matter to an outside body, such as the Workplace Relations Commission, for adjudication. Having reviewed the grievance procedure of the respondent, it appears that it contemplates the active involvement of representatives. In submissions, the respondent refers to the right provided in the grievance policy to an employee in this procedure to be accompanied by a work colleague or a union representative. I would also draw attention to the heading of this section, which states “formal discussion with advisory representatives”, which appears to contemplate discussion with representatives. I make this as comment, as opposed to a finding, as the meaning of these words was not canvassed at the adjudication.

The Complainant asserts that her transfer to manage a different ward followed complaints she made regarding resources required to care for a patient population group referred to by the parties as “frail elderly”. Before considering whether this allegation is supported by evidence, it is worth considering the issues raised by the complainant with the respondent, in particular the email of the 22^nd July 2014. This correspondence is addressed to the then Acting Director of Nursing and opens by referring to a recent meeting between the parties. The Complainant uses the personal pronoun “I” on three occasions in the letter. This is significant as the construction placed on letter by the former Director of Nursing was that this was the admission by the Complainant of her inability to cope (this was the Complainant’s evidence and not denied by the respondent). From my reading, the letter is a careful assessment of the challenges posed by the changing patient profile in the ward the Complainant managed. It welcomes the changing care provided by the hospital and recognises that old work practices will no longer apply. I am struck by the reference in the letter to the Complainant being an advocate for her patients and staff. Having reviewed the letter, it is difficult to accept the respondent’s submission that a healthcare professional such as the Complainant would be happy in being transferred from the ward following the concerns she raised.

The respondent outlines that it transferred the Complainant to a different ward on the 1^st June 2015 because of her expertise in orthopaedic care. It refers to the Complainant’s contract of employment and the flexibility/mobility clause contained therein. Such clauses are a necessary tool for employers to respond to changing practices and needs in a workplace. It is established that such clauses cannot be exercised in an unfettered fashion. In United Bank v Akhtar [1989] IRLR 507, the UK Employment Appeal Tribunal held, at page 512, "What, Mr Akhtar, by signing the contract, accepted was that there was conferred upon the bank a discretion. What Mr Akhtar did not, in our view, accept, was that the bank, in any particular circumstances, would not necessarily be under an obligation to exercise that discretion. It seems to us that there is a clear distinction betweenimplying a term which negatives a provision which is expressly statedin the contract and implying a term which controls the exercise of adiscretion which is expressly conferred in a contract. The first is,of course, impermissible. We were not referred to authority for thatproposition but authority is hardly needed for it. The second, in ourjudgment, is not impermissible because there may well be circumstanceswhere discretions are conferred but, nevertheless, they are notunfettered discretions, which can be exercised in a capricious way."

The central issue in this case is whether the transfer of Complainant on the 1^st June 2015 was related complaints she had made regarding care in the hospital, in particular the email of the 22^nd July 2014. This is a serious allegation as it suggests that the complainant was penalised for raising complaints. Having considered the oral and written submissions, I find as fact that the Complainant was transferred by the respondent as a result of, and as penalisation for, the complaints she made. I reach this conclusion for the following reasons. The respondent is, of course, correct that it is entitled to rely on the flexibility/mobility clause contained in the contract of employment. What is striking in this case is the speed and lack of consultation around the decision to transfer the Complainant. She was told of a transfer to take place on the 1^st June 2015 on the 22^nd May 2015. Applying United Bank v Akhtar, it is appropriate to read in an implied term that the power in the contract of employment was not to be exercised in an unfettered fashion. The respondent submissions refer to the expertise of the Complainant and the Senior Clinical Nurse Manager who replaced her. What is absent from the respondent is any evidence regarding the assessment carried out of their skills, or indeed the skills of other senior nurse management. The respondent did not, for example, have regard for the Complainant’s time in a national tertiary hospital. In respect of the speed of the transfer, I contrast this with the other facts established in the case that suggest a very stable workplace, an environment not marked by change. I note that in her 15 years with the respondent, the Complainant only occupied two positions, and had held the last role for six years. She was the only senior nurse manager to be transferred in June 2015. I also note the Complainant’s evidence regarding the suggestion made by the then Acting Director of Nursing in June 2014 that the Complainant work a five-day week. This matter was left stand and later complained about by the same Acting Director of Nursing in meetings in 2015 (as stated by the Complainant and not contradicted by the respondent). If it was the practice within the respondent to readily activate the flexibility/mobility clause, why not rely on it in June 2014 to immediately change the Complainant’s days’ of work?

What is also striking is the letter of the 25^th May 2015, signed by eight colleagues of the Complainant (including the senior manager who took the Complainant’s place). This letter indicates that they wish to record their “support” for the Complainant and refer to her as being “professional, extremely conscientious and courteous”. They refer to the decision to transfer the Complainant at short notice and state that they are optimistic that the respondent will recognise and acknowledge the Complainant’s valuable contribution to the provision of quality care. The response of the Complainant’s colleagues signals two things. The transfer of the Complainant at short notice was an event for which she needed their support, as well as being an event that caused them to express their confidence in her skill and contribution. Their letter has all the hallmarks of a response made when a colleague is subject to a sanction. The respondent submits that the gap in time between the email of the 22^nd July 2014 and the transfer of the 1^st June 2015 shows that the events are unrelated. I, however, draw a different inference from the timing of the transfer. I note that the senior Clinical Nurse Manager who replaced her already had supernumerary status and so, was assigned only managerial duties. Evidence was given that the Complainant’s ward had become a “specialist” ward because of the patient population it catered for, and as such would have had a manager supernumerary to the nursing headcount. The Complainant, on the other hand, always carried (and carries) a case load. The inference I draw is that the Complainant was transferred immediately prior to her being able to acquire supernumerary status. I also note the evidence that the medical cover provided to the new patient population was augmented on two occasions, culminating in a service provided by SHOs as well as Registrar and Consultant cover from 1^st July 2015. The inference I draw is that the Complainant was moved out of the ward at a time to coincide with allocation of the medical resources to fully address the needs of the patient group.

Taking these factors together, I conclude that a decision was made by the respondent to transfer the ward the Complainant managed in response to the complaints she made regarding patient care. I find as fact that this is an act to penalise the Complainant for raising these issues with the respondent, and in particular with the then Acting Director of Nursing.

In respect of redress, the Complainant sought an apology from the respondent. She also seeks compensation for additional hours worked in not acquiring supernumerary status and in not obtaining a location allowance, under negotiation by the Complainant’s trade union. I do not believe that unless a person or body agrees to make an apology, any recommendation issued for an apology to be made is worthless. No evidence was given regarding the value of any location allowance, nor the additional hours worked in respect of not having supernumerary status. I considered the options of recommending that the Complainant be allocated supernumerary status or to recommend her return to her former ward. I do not think that it is appropriate to make either recommendation, in particular because it may have knock-on effects on colleagues.

I consider that the most appropriate remedy is a recommendation of an award of compensation to the Complainant. The following factors are relevant. The Complainant is a long-established and senior member of the nursing management team. In good faith, she raised concerns about the care available to the new patient profile catered for by the respondent. She sent an email of the 22^nd July 2014, which I consider to be a careful and professional articulation of the issues faced on the ward She continued to manage her ward, with no apparent criticism by the respondent. She was then subject to a transfer at short notice, at a time that the medical resources available to the ward were about to be fully in place. I am particularly struck by the Complainant’s seniority and her obvious professionalism and competence. I, therefore, recommend that the respondent pay the Complainant €10,000 as compensation.

Decision:

The respondent shall pay to the complainant the amount of €10,000 in full and final settlement of this complaint.

Dated:   28^th April 2016