ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003021

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 16/08/2016

Workplace Relations Commission Adjudication Officer: Emile Daly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

1. The Complainant started work with the Respondent in January 2017. Her contract stated her working hours to be 39 hours per week.

2. After a period of maternity leave, in October 2008, she commenced parental leave, during which she worked 20.8 hours per week.

3. Her parental leave concluded in 31 October 2015. As a result of parental leave, the Complainant had been on reduced hours for a period of three and a half years.

4. In July 2015 the Complainant applied to the Director of Nursing to be allowed continue on reduced hours, once her parental leave concluded the following October. This was to facilitate family commitments. Her request was for 23 hours per week i.e. slightly over a 50% position.

5. In July 2015 the Director of Nursing refused this request by letter. He pointed out that the staff shortages were an ongoing problem for the Respondent and that the ongoing problem of shortfall in hours necessitated replacement with overtime staff or agency staff, both of which were costly. He suggested an alternative work location which might permit the flexibility that was sought.

6. Appendix 7 of Haddington Road Agreement, as re-affirmed in Lansdowne Road Agreement states “ flexibility in attendance is a feature of nursing and midwifery service delivery and contributes to effective business performance while enabling staff to balance workplace and personal life requirements”

7. On 14 July 2015 the Complainant requested an appeal of the decision to refuse her reduced hours and was told to appeal the Area Director of Nursing

8. On 21 August 2015 the union representative of the Complainant wrote to the Area Director of Nursing requesting him to reconsider the decision. The letter referred to appendix 7 Haddington/ Lansdowne Road agreement and also pointed out that the Complainant had been on reduced hours for the previous three and a half years, so the Respondent was already used to this accommodation.

9. On 23 September 2015 by way of letter, the Area Director of Nursing repeated the refusal to permit reduced hours. He pointed out the limited available pool of mental health nurses nationally. In respect of Haddington Road/ Lansdowne Road Agreement, he pointed out that Appendix 7 goes on to state that “management reserves the right ..to require a person…to resume full time work” He pointed out that he was facing criticism from local representatives about the shortages of staff numbers in the hospital. He stated that once the shortage in staff numbers had been rectified then flexibility in work hours could be considered.

10. In July 2015 the Complainant appealed the decision to the Area Head Director of Nursing.

11. The Complainant union representative said that in a conversation with this individual on the telephone, it was indicated that he, the Area Head, would ask the Director of Nursing to reconsider his decision

12. By way of follow up letter on 19 October 2015 the Area Head Director of Nursing wrote to the Complainant stating that “the decision was made due to a number of unfilled nursing vacancies…However the situation may be resolved in the coming weeks and at such time I will ask (the Director of Nursing) to re-consider his decision and approve your application.”

13. The Complainant understood from this letter that it was merely a matter of time for the matter to be resolved and that it would be resolved in her favour.

14. However the Area Head Director of Nursing retired from his post in October and his sanction was never given effect to

15. The Complainant returned to work on 31 October and commenced a 39 hour working week. A few days later on 3 November, the Complainant went on sick leave. She was referred by the Respondent to the occupational health department in December 2015 and February, April and June 2016. She was paid according to the sick pay scheme in place, which lasted until 30 March 2016, after which she was not paid.

16. In the belief that the Area Head Director of Nursing had been replaced by another person, The Complainant’s representative wrote to this person in April 2016 requesting the invocation of the grievance procedure. While this application was acknowledged, no grievance procedure was ever held, in breach of the Complainant’s contract.

17. On 29 April 2016 the complaint to the WRC was made

18. In June 2016 the Complainant’s union representative wrote to the Chief Medical Officer of the relevant area. This person is senior to the Director of Nursing and the Area Head Director of Nursing. On the telephone the CMO said that the decision would be revoked. This was the second time that a person senior to the Director of Nursing indicated that his decision would be overturned.

19. Despite this assurance the CMO replied to the Complainant by e mail on 16 June stating that the decision was made due to staff shortages and because the WRC proceedings had already issued, he could not deal with the appeal, until the WRC proceedings had concluded.

20. On foot of an examination of the Complainant by Occupational Health, she was deemed fit to return to work. This was communicated to the Complainant by way of letter on 16 June 2016.

21. On 28 June 2016 the Complainant met with the Director of Nursing and was accompanied by her union representatives.

22. The Director of Nursing stated that the Complainant must resume her working hours of 39 hours. In relation to a request by the Complainant to apply a phased in period (applying the Rehabilitation of employees back to work after illness or injury policy) the Director refused stating that the Complainant was not sick. This did not take account of the fact that the Complainant had been sick for eight months. An agreed date of return to work was 17 July 2016.

23. The Director of Nursing wrote to the Complainant on 28 June 2016 requesting her to contact the Administration Office of the Respondent to arrange a return to work date. He did so, despite this having already been agreed at the meeting. He also stated in the letter that the complainants “continued absence, for reasons other than health reasons is causing significant planning and operational difficulties for this service.” From this the Complainant understood that the Director was blaming her for something that she was not responsible for that that her request for reduced hours was a reasonable request and this attitude of blame towards hr demonstrated how the Respondent underestimated the effect that this treatment of her had had on her health and well being.

24. The Complainant returned to work on a 39 hour per week basis on 17 July 2016, pending this hearing and tendered her resignation on 24 July 2016, to take effect on 3 September 2016.

25. In the meantime an individual from HSE Corporate Employee Relations Service contacted the Chief Medical Officer again and asked for his intervention to resolve this. The CMO indicated that despite advising the Respondent to permit the request for reduced hours, this was refused by the Director of Nursing. This was despite him being senior to the Director of Nursing.

26. At the hearing, by agreement, the Complainant extended the effective date of her resignation, if it occurs, until after the recommendation of the WRC issues.

27. The representative for the Complainant submitted that the majority of mental health service providers in the country were offering staff reduced hours in order to retain them. However for reasons that remain unexplained, the Respondent is still insisting on 39 hour working week contracts. Service providers that have higher staff vacancies than the Respondent (nationally over 50% of the service providers have greater numbers of staff vacancies that the Respondent) are offering reduced hours, in order to retain the staff, so the point is that the Respondent in forcing an inflexible long working week on the Complainant, they will lose the 23 working hours that she is able to perform.

28. It is a fundamental error on the part of the Respondent that they insist on reducing staff shortages before they will grant reduced hours to nurse. If rather, reduced hours were made available to nurse applicants, the majority of which are women, most of whom have family commitments and require greater flexibility in order to manage the commitment to work and to their families, then the staff shortages would be reduced. It is a cart-before-the-horse approach which continues to fail to address the problem of under staffing.

     

Respondent’s Submission and Presentation:

1. The Complainant agreed and signed a contract to perform 39 hours per week

2. The Complainant availed of all of her maternity leave and parental leave entitlements; which permitted her to work reduced hours until October 2015.

3. The Complainant requested reduced hours in July 2015. .This request was made to the Director of Nursing.

4. The reason that this request was refused was due to extreme staffing difficulties within the hospital. Other options for work flexibility were suggested – in different work location or within other sector services.

5. The area Director of Nursing did have the authority to over-ride the decision of the Director of Nursing but did not do so before his retirement. As such the decision of the Director of Nursing stood.

6. In respect of Haddington Road/ Lansdowne Road Agreement, Appendix 7 states that “management reserves the right ..to require a person…to resume full time work.” The right to flexibility under Appendix 7 of the Haddington Road/ Lansdowne Road Agreement referred to by the Complainant must be read in light of the rest of Appendix 7.

7. If the request for reduced hours was accepted this would lead to a significant number of repercussive claims within the Area.

8. The request to phase the Complainant back into work on a reduced hours basis, following her sick leave, was not advised by Occupational Health. It is only when the Occupational Health Assessor advises return on a phased in basis that this would occur.

9. It is denied that the Director of Nursing said at their meeting that she had not been sick, rather he said that she was not sick, then, at that present time, as this was what had been advised by the Occupational Health Assessor.

10. At the hearing it was accepted by the Respondent that there is no health and safety issues arises from having two 50% positions instead of one full time position

11. The reason given for the refusal to grant part time hours to the Complainant was because of problems with staffing however no reason, other than this general reason, was given for this. It was not explained why their view, that provision of a greater number of 50% positions might cause a greater problem in understaffing, was based on. No funding repercussions or other reason was provided.

Recommendation

There is no doubt in this case that the Complainant signed a contract which required her to perform her work duties on a 39 hour per week basis.

I accept that there are difficulties faced by the Respondent in finding suitably qualified nursing staff. The work done by staff in mental health providers, both management and nursing staff can be challenging, but there is no doubt that the work that is done is of immense value to the State and more particularly and importantly, to the service users and their families.

Like many female dominated jobs, the nursing profession loses many members of its workforce each year due to the difficulty of maintaining full time work with family commitments. Nurses who are men too find this balance very difficult however, even though there are more male nurses in the field of mental health nursing rather than other areas of nursing, it too is still predominately female. Year on year, through inflexible working arrangements, highly trained and qualified women, fall outside the work bracket and their training and experience is lost.

The issue in this case seems to be whether any reason has been put forward justifying the decision not to allow the posts be either part-time and full-time, as occurs in mental health service providers in other parts of the country.

It was very significant in my view that the Director of Nursing at the hearing, accepted that there is nothing different between the quality of care provided by two nursing staff doing 50% hours and one doing 100% hours.

When asked why positions were not being offered to new recruits on a part- time basis, the answer was a circular one, namely that this would only be considered once the full time positions were filled. He did not suggest that more part time posts would reduce the quality of the service than less full time posts. So significantly there is no “quality of care” defence raised.

There also was no evidence to support the belief that more part time hours would increase staff shortages. Clearly it is the case that if someone works a 50 % job as opposed to a full time job, then 50 % of her hours are lost. However, what is lost immediately is gained by access to a far greater pool of recruits, who currently have had to give up work, precisely because full time hours don’t suit.

In response to the suggestion that the Respondent would be more likely to recruit more staff if the posts were offered on a part time basis, there was no response although I am certain that this has been considered.

If there were more part time hours available, there would be greater number of staff working less hours but more hours filled. Other service providers, within the State, permit nurses to work part time, but not in this area. But the reason for this remains unclear. If there had been evidence put forward that, in past experience, permitting staff to work part time means that less hours would be filled, then that would be relevant, but that was not tendered. Neither was any point made that funding for the Respondent would be reduced if there are not a certain number of full times posts filled. This would be relevant, if it had been proffered. However I am now entering into hypothesis, because no such argument was made.

The Respondent’s explanation that the refusal was due to staff shortages was made without referring to the fact that the full time nature of these posts might well be the reason why the positions were not attractive to the nurses, the majority of whom are women, many of whom have family commitments. This is especially the case a full time post of mental health nursing care, is too onerous, both mentally and physically, when one also has family commitments to contend with. So that the decision to not make part-time posts available itself contributes to the problem of under supply of staff.

The last reason for this recommendation is that other service providers do permit the nursing staff to work part time hours. This was not disputed by the Respondent, but nothing was said to distinguish this service provider with any of the other service providers that permit reduced hours.

For these reasons, I recommend that the Complainant be permitted to work reduced hours but that this be on a 50% basis (as in 50% of 39 hours as opposed to the 23 hours sought) as I expect that it will be difficult for the Respondent to recruit a corresponding position if it is less than 50 %.

Dated:   28 October 2016