ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00007197

Complaint:

Date of Adjudication Hearing: 26th July 2017

Workplace Relations Commission Adjudication Officer:   Seán Reilly

Procedure:

In accordance with Section 41 of the Workplace Relations Act 2015 and Section 13 of the Industrial Relations Act 1969 and following the referral of the dispute to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.

Background:

SIPTU were in dispute with the Employer in relation to their alleged failure to afford the Complainant the opportunity to apply for a vacant CNM1 position.

Summary of Trade Union Case:

SIPTU said that the dispute relates to the Employer filling a Clinical Nurse Manager 1 (CNM1) post by transfer instead of the normal practice from the National Recruitment Service (NRS) Panel.

SIPTU said they were seeking that the CNM1 in question should have been filled from the NRS Panel and the post should be offered to the Complainant.   SIPTU said the Complainant believes she has been unfairly treated in this matter.

SIPTU said that the Complainant is employed as a Senior Staff Nurse and as a CNM1 from February 2017 in the Mental Health Services in a named County

In May 2015, the Complainant was interviewed for a CNM1 post in the named County and she was placed 14^th on the National Panel.

In July 2015, expressions of interest were sought by the NRS for CNM1 posts in a named area (C) of the County.   Following discussion with the named then Area Director of Nursing (ADON) regarding the possibility of a transfer to L (in the County) if she accepted the position in C the Complainant decided not to submit an expression of interest in the post.   She also declined to submit an expression of interest for a post in PH in L in March 2016, as this was not her post of preference.

SIPTU said the Complainant had been working as a Senior Staff Nurse in CH in L since October 2015, and she was aware that the CNM1 there was due to retire on 7^th June 2016.   Following that CNM1’s retirement, the Complainant was waiting for expressions of interest for this post as this was her post of preference.

SIPTU said that it has always been the practice to fill promotional posts from the National Panel and it was the Complainant’s genuine expectation as there was no information to the contrary to lead her to believe otherwise.   SIPTU said that in addition, the last 4 CNM1 vacancies in Donegal had been filled from the Panel.

On 12^th July 2016, the Complainant had requested a meeting with the named Area Director of Nursing (ADON) as she had heard that a CNM1 was transferring to CH.   During the Meeting the ADON informed that the newly appointed CNM1 in C would be transferring to CH.   The Complainant explained to him that she was number 1 in order of merit on the CNM1 National Panel and that she was waiting on the expressions of interest for the position in CH.   However, the Meeting concluded with the ADON stating that he could not discuss individual cases and that his decision was final.

Subsequent to this the Complainant submitted a Grievance and a copy of the Grievance Letter was submitted to the Hearing.

A Stage 1 Grievance Hearing was held on 8^th August 2016 and a copy of the record for that Meeting was submitted to the Hearing.   During that Hearing SIPTU requested that the decision to grant a transfer be put ‘on hold’ pending the outcome of the Grievance.   The ADON informed that he would not suspend the decision at this stage; he however agreed that he would seek advice.

The ADON sent an email to the Complainant which stated: “that the advice received from the HR Department is that I should proceed with the reassignment of the CNM1 post and retain the vacancy for the duration of the Grievance process.”

The ADON wrote to the Complainant by letter of 24^th August 2016 informing of his decision not to uphold the Complainant’s Grievance.

This was appealed and a Stage 2 Grievance Hearing took place on 25^th October 2016.   The outcome of that Appeal was that the Grievance complaint was not upheld.

The Complainant wrote to the named HR Manager regarding the outcome of the Grievance Appeal Hearing and the HR Manager acknowledged receipt of the letter.

SIPTU submitted a copy of correspondence between the Complainant and the former, now retired ADON in relation to telephone discussions between them in July 2015 regarding the CNM1 post in C.

SIPTU said the Complainant is on the CNM1 National Panel and that since this Panel was formed in May 2015, all CNM1 vacancies in Donegal have been appointed from the Panel except for the CH post.   SIPTU said that it is inconsistent with the normal practice and lacks transparency that the vacancy in CH was filled by the Transfer of a CNM1.

SIPTU said that when the NRS sought expressions of interest for the post in C in July 2015, the Complainant contacted the named then ADON seeking clarity on the post.   She also queried the possibility of a transfer to L if she accepted the post in C.   The then ADON advised the Complainant that a transfer would not be possible in the short to medium term.   Based on this discussion the Complainant decided not to submit an expression of interest for the post.

SIPTU said that however when the CNM1 post in CH became vacant management decided to fill the post with a transfer from C, which they said is the opposite to advice that was given to the Complainant regarding the possibility of a transfer to L if she accepted the C post.

SIPTU said that the Complainant was aware that the CNM1 in CH was retiring on 7^th June 2016, and she was interested in continuing to work in CH.   SIPTU said this was the reason that she did not apply for vacancy in PH in L when expressions of interest were sought in March 2016.

SIPTU said the hours of work for PH are Monday to Friday and this is the same working pattern for the CNM1 post in C.   However, when management decided to accept a transfer request the person was not transferred to a post with the same conditions he had accepted and this option was available to management.

SIPTU said the NRS document regarding panels states that: “It is important for candidates not to express interest in posts that there is little chance they would accept if offered as this can cause large UNECCESSARY delays in the filling of posts and thus the provision of service.”

SIPTU said the Complainant followed procedures and did not express interest in posts that she was not interested, namely in C and PH.  

SIPTU referred to the outcome of Stage 2 of the Grievance Procedure and said it is stated that the ADON had “No knowledge at that time, of your desire to move to that post.”   SIPTU said the Complainant had requested a transfer to CH on 24^th April 2014 and in the response letter from the then ADON he advised that there is currently no fixed line available in CH and that he would put her expression of interest on file.   In addition, after the Complainant was successful in her interview for the CNM1 Panel it was known within management as well as with work colleagues that she was interested in the CNM1 post in CH and her place on the Panel.

SIPTU said there is no transfer policy in the Service and the issue of transfer requests was raised at a Union/Management Meeting on 26^th February 2016, and no agreement was reached and SIPTU submitted a copy of the Minutes of that Meeting.

SIPTU said that at the Stage 2 and Stage 3 Grievance Hearings the Complainant raised the fact that there was no transfer policy in the Service and she informed that there was a policy for the National Public Health that was approved by trade unions and management on 1^st April 2015.   They said that this policy states:

“Public Health Nurses of the (Respondent) who have a Permanent Contract of Employment including a Contract of Indefinite Duration who have successfully completed their probationary period and have been in their current area of assignment for a minimum period of 18 months.”

SIPTU said that in the absence of a policy they sought that the transfer principles should have applied in this instance.   They said that in this case the person who was accepted for a transfer was in his current area of assignment for 6 months.

SIPTU said that in the outcome of the Grievance Procedure at Stage 3 it was recommended that: “In the event that it is proposed to accept submissions or application for reassignment, then an agreed structure should be implemented to manage such applications.   This should be clearly communicated to staff, for the purpose of clarity and transparency.”

SIPTU said that this recommendation indicates that there was a lack of clarity and transparency in the acceptance of a transfer for the CH post.

SIPTU said that based on the practice that promotional posts were filled from the CNM1 National Panel and the fact that previous vacancies were filled from the Panel; the Complainant had a genuine expectation that the CH vacancy would be filled in the same manner.

SIPTU said the decision to fill the vacancy by accepting a transfer is inconsistent with the existing practice of promotional posts being filled from the National Panel and it lacks transparency.   SIPTU said it is also contrary to the advice given to the Complainant regarding the possibility of a transfer in the short to medium terms when accepting a post in one location.

The correspondence between the Complainant and her previous ADON were discussed in some detail and the previous ADON gave direct evidence.

The Complainant wrote to the former ADON on 24^th January 2017 as follows:

“I am writing to request if you would be able to confirm in writing a telephone conversation that we had at the end of July 2015, regarding the permanent CNM1 post in C…..

You may recall that the NRS has sent me an offer seeking an expression of interest for this post.   As I was unsure of the location I then contacted you by telephone to clarify where the post was based.

I am now seeking written acknowledgement from you as part of an ongoing grievance with the (Respondent).”

The former ADON responded by letter of 11^th February 2017 as follows:

“I acknowledge receipt of you letter and request therein.   I can confirm that I received a ‘phone call from you in relation to a CNM1 post for C…. SRU which was offered to you by NRS. While I am unable to confirm the exact date and time of the call I do recall the context of our conversation.   Your call to me was to discuss what opportunities would exist for transfer to L…. if you accepted the CNM1 in C…   My advice at the time was that in the short to medium term a transfer would not be possible as the post was advertised for a specific location, roster, vacant post and service need in that area.   My recall is that I advised you that perhaps a transfer may be facilitated in the future if and when a swap situation arose.”

The former ADON gave direct evidence.   He confirmed that he had sent the above letter to the Complainant and that it was an accurate account of what had occurred.   He also elaborated on this statement and he answered questions in relation to it.

For all of the foregoing reasons SIPTU and the Complainant submitted that it was clearly the case that the claim/complaint was well founded and that accordingly it should be upheld and they sought a recommendation to that effect.

Summary of Employer’s Case:

The Employer was denying and rejecting the claim/complaint.

The Employer said that historically in the Mental Health Services in the named County there was limited reallocation opportunities (commonly know as transfers).   They said that when the current ADON (Area Director of Nursing) came into the post one of the first issues to be clarified with the trade unions was an agreement on the process of potential transfers.

The Employer said that on 6^th June 2016 a named person retired from a CNM1 post in CH SRU.   They said that at that time and in line with the new agreement with the trade unions, the ADON used this opportunity to facilitate a reallocation of a current CNM from C… SRU to CH.   The Employer said that when the Complainant became aware that this reallocation was imminent she met with the ADON regarding the decision.   The ADON stated and explained the rationale for this decision, which the Complainant did not accept and her argument was that she had discussed the possibility of a reallocation with the current ADON’s predecessor.   The Employer said that however, as already stated, reallocations were not the norm during his tenure.

The Employer said that the ADON stated that he was not aware of any discussions with his predecessor regarding this issue and that a review of the file showed no evidence of this.   It was explained to the Complainant that if such an agreement existed it would contravene the rights of current employees to avail of a reallocation and in essence would lead to a claim that they were being treated differently and unfairly.

The Employer said that the current agreement reached with the trade unions is a healthy and beneficial process for all employees.   It facilitates employees to transfer or move to an existing vacancy for which they are suitably qualified.   Furthermore it enhances employees’ professional development and opportunities by allowing them to broaden their experiential learning across different aspects of the Service and this is beneficial to both employees and to the Service.

The Employer said the implication of the transfer being overturned would remove their ability to utilise future vacancies and to reallocate and manage staff resources in a proactive manner.

Based on the foregoing and the facts of the case the Employer sought that their position be upheld.

Findings and Recommendation:

Section 41 of the Workplace Relations Act 2015, requires that I make a decision in relation to the dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation setting forth my opinion on the merits of the dispute.   I have carefully considered the evidence and all the submissions made and I have concluded as follows.

I note that at the Grievance Hearing held on 8^th August 2016, SIPTU requested that the decision to grant the disputed transfer be put ‘on hold’ pending the outcome of the Grievance.   It is very regrettable that this request was not acceded to by management, particularly bearing in mind the content of the next paragraph of this recommendation and I cannot accept the reason advanced by the Employer for refusing this request that “the service could not be put on hold while the grievance is heard as this could take quite some time”.   It was not being suggested that “service” be put on hold, rather it was being proposed that the transfer be put on hold.   Apart from the fact that the Area Director Of Nursing was assuming that it could take quite some time for the grievance to be heard, implying that he had no intention of upholding the grievance, it is a fact that it is common practice within the employment for persons to be appointed/moved to posts on an ‘acting’ basis and that could easily have been done in this instance, avoiding any party being presented with a ‘faitaccompli’’ or a position that could not be easily or readily undone, regardless of the merit of any case made by the Complainant or anyone else.   I am further concerned at the fact that the Area Director of Nursing was hearing an appeal against his own decision; this offends against every concept of natural justice and fair procedure and as is completely out of line with best practice, indeed as stated by the Employment Appeals Tribunal it would require ‘Olympian Impartiality’!

I note that the former Area Director of Nursing gave direct evidence and he confirmed that the Complainant had contacted and spoke directly with her before she decided whether or not she would accept a transfer/reassignment and that he advised her that in the short to medium term a transfer would not be possible as the post was advertised for a specific location, vacant post and service need in that area and that he further advised her that perhaps a transfer might be facilitated in the future if and when a swap situation arose.   The Complainant was entitled to rely upon this advice, proffered by the appropriate manager, who was acting as a manager and as such an agent of the Employer.   This fact tends to support the Complainant’s position.

I further note that it was the invariable practice of the Employer, up until this case, to appoint employees to transfers/reassignments from the National Panel – and I also note that the Complainant was not notified of any change in this practice, and any change in this practice should have been notified to the Complainant and her colleagues by the Employer.   Again the Complainant was entitled to rely upon this very well established practice.   Also again this fact supports the Complainant’s position.  

Based on the foregoing I see considerable merit in the claim and it is upheld by me.

However, despite having upheld the complaint I note that prior to the Hearing, another employee has been transferred to the position in question and now occupies that position and is in possession of a contract of employment in that position.   I regretfully must accept that such a contract of employment cannot be repudiated and I accept that that employee having applied for and been accepted in his application for the post cannot be unilaterally removed from that post.   It was stated at the Hearing that the Complainant was now top of the Panel and had accepted a CNM1 post in L and it was suggested that a straight swap between her and the other employee be explored.   However subsequent to the Hearing I was informed that this would not happen and a recommendation was sought.

In all the circumstances I accept that the situation is practically irretrievable and it is not reasonably possible to remove the other employee from the position he occupies.   In these circumstances I recommend that the parties and in particular the Employer immediately make every possible effort to facilitate the Complainant’s transfer/reassignment to a CNM1 post in CH in L at the earliest possible date and that this effort continue until such a position is offered to the Complainant.

Dated:    4 October 2017

Workplace Relations Commission Adjudication Officer:  Seán Reilly.