FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE SOUTH - AND - A WORKER (REPRESENTED BY IRISH NURSES AND MIDWIVES ORGANISATION DIVISION : Chairman: Mr Haugh Employer Member: Ms Doyle Worker Member: Mr McCarthy |
1. An appeal of an Adjudication Officer's Decision no. r151613-ir-15/JOC.
BACKGROUND:
2. This case concerns a claim of unfair treatment by the Employer.
- The Employer said the claimant had moved to a new specialist area and was struggling to adjust to the new environment. It was agreed that weekly performance review meetings as a supportive measure, would be scheduled to identify areas and opportunities for performance development.
- The Union said the claimant had been in the Unit for four months. She was called to a meeting without any notice nor informed of any agenda, where she was advised that her performance was not to standard. This was unfair and unreasonable with little adherence to normal practice.
- This matter was referred to an Adjudication Officer for investigation and Recommendation. On the 11th February 2016 the Adjudication Officer issued the following Recommendation:-
- I find the programme of support is worthwhile and should be used to enable all employees to reach the required standard. I find in this case the claimant was not fully aware of the purpose of the initial meetings. I find that these could be deemed as disciplinary meetings and this programme was not designed for this reason. I find the process could have been handled more speedily in the best interests of all parties. In all circumstances and I am making the following recommendation in full and final settlement of the claim.
I recommend the sum of €7,000 to be paid into the claimants pension account by the respondent and the claimant accepts the sum in full and final settlement of her claim.
- I find the programme of support is worthwhile and should be used to enable all employees to reach the required standard. I find in this case the claimant was not fully aware of the purpose of the initial meetings. I find that these could be deemed as disciplinary meetings and this programme was not designed for this reason. I find the process could have been handled more speedily in the best interests of all parties. In all circumstances and I am making the following recommendation in full and final settlement of the claim.
The Union on behalf of the claimant appealed the Adjudication Officer’s Recommendation to the Labour Court on the 18th March 2016 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on the 29th June 2016.
UNION’S ARGUMENTS:
3. 1. There was a failure to identify the procedure used, suggesting it was one of informality but it transpired that the process became very serious and apparently was at all times, a formal process.
2. The Claimant was never informed as to the structure, targets or the right to representation or advice regarding these “performance and support” meetings.
3. There was no written outcomes of these meetings provided to the Claimant and it was not until her meeting with her General Manager one year later, that copies of the meetings were provided to her.
EMPLOYER’S ARGUMENTS:
4. 1. A competency programme which was viewed as a supportive measure to address performance issues was developed and meetings took place over a period of five months.
2. An “outline of duties” which consisted of nine tasks was set as a bench mark. The Claimant became proficient in six.
3. Stages 1 to stage 3 of the HSE Grievance process have been exhausted with the Claimant’s grievance not upheld.
DECISION:
Factual Background
The Complainant has been employed as a nurse by the Respondent since 2000. Following her return from a period of sick leave in September 2012 she was transferred to an alternative department to the one she worked in prior to taking leave. This transfer required the Complainant to adjust to working in a new specialist area as a member of a multidisciplinary team. She attended weekly meetings of the team and availed herself of departmental in-house training.
Notwithstanding the supports in place to help the Complainant transition to her new role, it appears that her line manager formed the view in late December 2012 that the Complainant was having some difficulty adjusting. The Complainant’s line manager, together with the Assistant Director of Nursing (“the ADON”), put in place a performance management programme to support the Complainant. Regular performance review meetings were held between mid-January and mid-May 2013 in order to identify the areas in which the Complainant’s performance could be developed.
What transpired to be the final performance review meeting took place on 16 May 2013. It appears that management were of the view that the Complainant’s performance had stagnated. They expressed concerns about her apparent tiredness and her reduced ability to remember things. Management undertook to look at the Complainant’s work patterns and to attempt to facilitate amendments to her working hours. The Complainant went out on long-term sick leave following this meeting.
On 21 May 2013, the Complainant advised that she no longer wished to partake in the performance review meetings and had referred the matter to her trade union, the INM O. A meeting attended by management, the Complainant and her INMO representative took place on 27 May 2013 in the course of which the Complainant enquired as to why she was the subject of a disciplinary process. Management sought to reassure the Complainant that the sole purpose of the performance review meetings had been to support and assist the Complainant and the process was not disciplinary in nature. The Complainant did not accept this to be the case.
The Director of Nursing (“the DON”) held a meeting with the Complainant on 20 June 2013. At this meeting the Complainant furnished a four-page document outlining her “grievance” and alleging that she had been “constantly subjected to bullying and harassment” with the result that “her dignity at work [had] been violated”. The DON proceeded to investigate the Complainant’s allegations against her line manager and her ADON. On 6 December 2013, the DON wrote to the Complainant to state that she was not upholding her grievance as it was the DON’s view that both the Complainant’s line manager and ADON had acted in a professional and supportive manner throughout the course of the performance improvement programme. The DON also advised the Complainant that she had a right to appeal the outcome of Stage 1 of the grievance process to a named senior manager in the HSE South. In addition, the Complainant was advised she could return to work either in the department she had worked in since September 2012 or to a named alternative department.
The Complainant did not return to work at this time but chose to appeal under Stage 2 of the HSE grievance procedure. She informed the ADON of her intention to do so on 4 January 2014. Regrettably, however, the hearing of the Complainant’s appeal did not take place until 9 May 2014. The General Manager who heard the appeal issued his decision on 20 May 2014. He upheld the decision given at Stage 1 i.e. he did not uphold the Complainant’s grievance. However, he did acknowledge the concerns that the Complainant had raised in relation to (a) the length of time it had taken the HSE to bring the matter to Stage 2; and (b) the use of a venue by her line-manager and the ADON to conduct the performance review meetings that did not ensure maximum privacy for the Complainant. The General Manager advised the Complainant of her right to appeal his decision to the Employee Relations Regional Manager under Stage 3 of the HSE grievance procedure. He also confirmed that her existing position and the offer of alternative redeployment remained open to her.
The Complainant chose to exercise her right to move to Stage 3. The Employee Relations Regional Manager met with the Complainant on 17 September 2014 and issued her findings to the effect that she was “satisfied that the Performance Management process was enacted to assist and support you in further developing your clinical skills within the [X] Department”. The Regional Manager again confirmed that the Complainant’s position remained open for her as did the offer of a named alternative position.
Stage 4 of the grievance procedure (at the time) consisted of a referral to a Rights Commissioner (now Adjudication Officer). The Complainant chose to move to Stage 4 and the matter came on for hearing on 17 November 2015. The Adjudication Officer’s recommendation issued on 11 February 2016. He found that although the Performance Management programme is “worthwhile and should be used to enable all employees to reach the required standards”, the Complainant was not fully aware of the purpose of the initial meetings, which in the Adjudication Officer’s view, could be deemed disciplinary meetings. He also found “the process could have [been] handled more speedily in the best interest of all parties”. He recommended that €7,000.00 be paid into the Complainant’s pension account by the Respondent.
Meanwhile, the Complainant had returned to the workplace on 25 May 2015 and accepted the Respondent’s offer of redeployment to an alternative department, on a part-time basis.
Recommendation
Having considered the detailed submissions made to it by both parties, the Court finds that the Complainant’s case is not well-founded. The Court is satisfied that the Complainant’s line-manager and her ADON engaged with the Complainant through the use of a Performance Management process that was solely intended to assist the Complainant to achieve clearly identified and stated performance standards. The Court does not accept the process could be construed as disciplinary in nature.
The Court has noted the inordinate length of time taken to complete the 4 stages of the grievance process initiated by the Complainant in this case. However, it appears to the Court that both parties contributed in some degree to the delays. The Court also notes and endorses the recommendations that were made at Stages 2 and 3 to the effect that hospital at which the Complainant is employed should examine its performance review practice to ensure compliance with HSE Guidelines.
The Recommendation of the Adjudication Officer is set aside.
The Court so recommends.
Signed on behalf of the Labour Court
Alan Haugh
CR______________________
11th July, 2016.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.