ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00013261

Parties:

Complaint(s):

Date of Adjudication Hearing: 01/08/2018

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 [, and/or Section 13 of the Industrial Relations Acts 1969] 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).

Summary of Complainant’s Case: 

Introduction.

1. 1. This claim is brought under Section 13 the Industrial Relations Act on behalf of the claimant.
   2. The claimant claims that;

1. The predetermined rules of competition were breached when an appointment was made outside the decision of the Interview Board.

1. The claimant has been treated in a grossly unfair manner by his Employer which has put his promotional opportunities in jeopardy.
2. That the claimant, be compensated €10,000 for the breach of the Public Service Rules for competition, for being denied a permanent promotional CNM2 post, for being treated less favourably than colleagues and for the tardy manner in which his employer treated him.

• BackgroundThe claimant trained as a nurse in 1998 in the Mater Misericordia Hospital/ University College Dublin. Following graduation, the claimant acquired extensive nursing experience working in the National Spinal Unit/ Orthopaedics Ward, Surgical Urology ward, agency nursing in multiple hospitals in the Dublin area before emigrating to Australia in 2005. During his time in Australia, the claimant worked again as an Agency Nurse in many specialties, in a number of hospitals in the Greater Sydney area. In 2006, the claimant returned from Australia and commenced nursing in the Northwest. The claimant commenced work on Right Wing Orthopaedics (Trauma) and then transferred to Left Wing Orthopaedics (Elective Surgery). Due to bed closures in 2009, the claimant was requested to move specialities, and took up a position in the Stroke unit. Due to further bed closures, the same year in the Hospital, the claimant was requested to move again, and took a position in renal dialysis and retrained for this position. The claimant is committed to lifelong learning and from 2006 to 2010 the claimant returned to college, on a night school basis, and completed an Honours Degree in Industrial Relations Human Resource Management. In August 2011, the claimant was seconded to the Irish Nurses and Midwives Organisation to work as an Industrial Relations Officer for 2 1/2 years.
  1. 1. In November 2013 the claimant returned to the hospital , where he has worked in General Medical, Renal Dialysis, Orthopaedics since his return. From May 2017 to February 2017 the claimant worked as a temporary CNM2 in Neurology/ Multiple Sclerosis. The claimant returned to his substantiate post as a Staff Nurse in February 2018.
     2. A competition was held in 2014/ 2015 for the creation of a Clinical Nurse Manager 2 (CNM II) panel in the Hospital group and for SUH. The claimant was successful in this competition and was placed 8th on the panel for the Hospital.
     3. In October 2016, an advertisement was circulated locally in SUH for a temporary CNM2 post in the Medical Directorate as a separate competition. This competition was held taking no cognisance of existing NRS CNM2 panels for SUH which were already active.
     4. The claimant contacted the NRS via email on 1st November 2016 seeking information as to the status of the panel (NRS 0982).
     5. The claimant received a response from the NRS on 2nd November 2016 informing him that the CNM2 panel which he was on was still live and active.
     6. The claimant wrote to Ms TR, Human Resources Manager, on 7th November 2016 enquiring why the post was not offered as an expression of interest to the NRS 0982 panel, which had happened with previous posts.
     7. The claimant received no response from the HR Manager by 15th November 2016 and wrote again to the HR manager with the same question and made himself available to meet her.
     8. Again, the claimant received no response from Ms .TR
     9. On 13th December 2016, the claimant sent another email to Ms TR enquiring again.
     10. By 19th December the claimant still had no response.
     11. On 19th December the claimant wrote to MrJS, Head of Human Resources, , explaining the situation.
     12. Mr JS responded that day indicating he was informing Ms TR to contact him regarding this matter.
     13. By the end of the first week in January 2017, the claimant had not received a response from Ms TR and therefore contacted the Irish Nurses and Midwives Organisation requesting their assistance in this matter. From this point on the INMO acted on the claimant’s behalf and contact was made with Ms TR on 19th January 2017 who agreed to meet on this issue.
     14. A meeting took place on 26th January 2017 with MsTR HR Manager SUH, Ms. MH, INMO Industrial Relations Officer, and the claimant . Ms TR acknowledged that there had been an error by the employer in the administration of the panel, as recorded in the outcomes. Management advised that as the claimant was next on the panel, when a position arose, the claimant would be offered the next position.
     15. The INMO raised with HR, that there was a suggestion, locally, that a new CNM2 panel was to be formed from the October 2016 competition for CNM2 posts in SUH. HR responded that it was not aware of the formation of a new local CNM2 panel. HR agreed that they would seek information on this and if there was another panel they would revert to the INMO. To date HR has not reverted to the INMO regarding this matter.
• In the week following this meeting, the claimant was offered a Temporary CNM2 post in Neurology/ MS via the NRS. The claimant was under the impression that the NRS panel was due to expire and he accepted this temporary post on 3rd February 2017.
• The following week, 10/02/2017, a CM2 Bed Manager post was advertised for SUH without the post being offered to NRS CNM2 panel members. The claimant queried this action and wrote to the DON.
• On 14th February 2017 the DON responded to the claimant informing that the Bed Manager post was a bespoke competition.
• Within the same timeframe, a temporary CNM2 post for the Short Stay Unit was also advertised as a separate competition and again not offered to the existing NRS panel.
• 1. 1. The claimant queried this with local management who disputed that the Short Stay Unit post was advertised after the closure of the NRS 0982 CNM2 panel.
• In March 2017, the claimant learned that two other CNM2s had been appointed from a panel which was formed from the local October 2016 competition, the existence of which HR indicated they were not aware of at the meeting of 26th January 2017.
• On 5th April 2017 the claimant wrote to the DON expressing his concerns regarding the managing of Panels for CNM2 appointments in SUH.
• On13th April 2018 the DON responded, denying any knowledge of manipulation of CNM2 panels in SUH. The DON advised of the necessity of running a bespoke competition for bed management and acknowledged that temporary candidates were taken from the NRS panel which the claimant was on, that the SSU post was advertised internally and that she was unable to respond to the claimant ’s question regarding the existence of a separate panel created from October 2016 competition.
• On 13th June 2017, the INMO contacted the HR Manager seeking a further meeting on behalf of the claimant. Appendix 17. Regrettably the HR Manager did not accede to the request.

• Precedent
• In November 2012 the INMO took a successful case on behalf of a member. Management appealed the outcome to the Labour Court, CD/12/630 / R-12305-IR-12/GC. In this case, the claimant was a Clinical Nurse Manager 1 in the theatre department at a hospital. In February 2012 hospital Management advertised an internal confined competition to fill two posts at the level of Assistant Director of Nursing grade. The claimant was successful in the competition and was placed second on the panel. However, when the posts became vacant the Hospital Management appointed the first and third members on the panel, bypassing the Claimant. The Labour Court concurred with the Rights Commissioner’s recommendation which was the placement of the claimant as second on the panel naturally led to expectations on her part. The Labour Court concurred with the Rights Commissioner that the Claimant be given a compensatory sum of €3,000 and should be appointed to the next Assistant Director of Nursing vacancy which arises with arises within a period of five years from the date of the Decision. 

1. Unions Arguments
   1. The INMO contends that the same rationale and principles of the above case apply in the claimant’s case . The claimant was successful in the NRS competition NRS0982 and was panelled for CNM2 posts for SUH in February 2015. In October 2016 SUH held a separate local competition for a temporary CNM2 in the Medical Directorate despite the existence of the NRS0982 CNM2 panel. SUH appointed 3 CNM2s from this second CNM2 panel, bypassing the claimant for promotion to a temporary CNM2 in SUH. The INMO contends that in doing so, the predetermined rules of competition were breached, with an appointment being made from the second panel disadvantaging the claimant .
   2. The claimant experienced a repeat occurrence on two more occasions of being by-passed for promotion when he was not offered the temporary CNM2 for the Short Stay Unit and the Bed Management permanent post. The INMO contends that in doing so, the predetermined rules of competition were breached, with an appointment being made from the second panel disadvantaging the claimant . This resulted in the claimant being treated less favourably than his colleagues which is unfair and unacceptable.
   3. Management freely acknowledged and accepted the wrong they had inflicted on the claimant at the meeting with the INMO on 26th January 2017. The claimant was treated less favourably than his colleagues on the second panel who were offered temporary CNM2 posts in SUH. These posts should have been offered to the claimant . However, the claimant was bypassed and was denied his right to promotion.
   4. Management breached competition rules and by-passed the claimant as if the claimant did not exist when promotional posts became vacant. This is a tawdry way to treat an employee. The claimant should be compensated for the manner in which management treated him.
2.  

5. Conclusion

5.1   The claimant interviewed and was successful in a competition for CNM2 promotional posts in 2015 NRS0982. The claimant had an expectation of being offered a CNM2 post when it became vacant, however management ran a second competition and offered a colleague of the second panel a CNM2 promotion ahead of the claimant on three occasions. This is a breach of competition rules and is inherently unfair and unjust. The claimant should be compensated €10,000 for the manner in which management have treated him.

5.2       We respectfully seek a recommendation in our favour.

 Summary of Respondent’s Case:

1.0 Background

1.1 In 2013-2014 a recruitment campaign for Clinical Nurse Manager 2 was undertaken by HBS Recruit (National Shared Service Recruitment Service) for the creation of panel for Saolta Health Care Group, SUH. (Appendix 1 Job Specification CNM2 Jan 2014).

1.2. The first appointment from this panel was in February 2015 and all posts in SUH were processed and appointed by HBS to HSE approved vacant posts (Appendix 2).

1.3 Due to volume of National HSE recruitment being supported by HSE HBS Recruit, average waiting period/vacancy of approved post in Sligo University Hospital was 8 months. (Appendix 2)

1.4 SUH had critical service need to replace a maternity leave for critical position of CNM2 and to deliver key post SUH HR published internal staff advertisement in October 2017 to fill temporary post (Appendix 3).

1.5 The claimant raised a query to SUH regarding the placement of SUH Temp CNM2 advertisement when HBS 0982 Clinical Nurse Manager 2 panel was in place. Due to delays, a meeting with the claimant , INMO and SUH HR Manager took place on January 26th 2017.

1.6 At this meeting, SUH Manager clarified that as she was not in role in SUH at time of creation of panel, her understanding was that panel HBS 0982 was to fill permanent CNM2 posts. SUH HR Manager confirmed to the claimant that this was her error and confirmed that it has been clarified by HBS that the panel was for filling of all permanent and temporary approved posts. SUH HR Manager confirmed that the CNM2 posts would subsequently be expressed to the panel with immediate effect and confirmed that her error would be rectified immediately.

1.7 HBS expressed post to panel and in March 2017 the claimant was procedurally processed to approved vacant temporary CNM2 post (Appendix 2) and started in post on 30/4/2017.

1.8. The respondent disbanded all Health Care CNM2 panels (including HBS 0982 SUH CNM2 panel) in February 2017.

1.9 In February 2017, the respondent HBS Recruit advertised post of Clinical Nurse Manager 2 Bed Management.

1.10 The claimant enquired to the Director of Nursing as to why post was not expressed to existing panel who confirmed that this post was a very specific patient flow CNM2 Bed Management post where job specification and skill set required is different to job specification of HBS 0982 CNM2 panel and confirmed that post was open to all eligible applicants to apply.

1.11 The claimant again raised queries regarding the management of CNM2 panels in SUH post and Director of Nursing response issued to the claimant on 13/4/2017 (Appendix 8) which again clarified the necessity for HBS Recruit to hold a bespoke campaign for the specific Bed Management post and confirmed the SUH procedural appointment of all CNM2 posts (Appendix 8).

2.0 Conclusion

4.1 The respondent has fully complied with its’ obligations under the CPSA Codes of Practice.

4.2 No member of the HBS 0982 CNM2 panel was disadvantaged in any way by HR error which was acknowledged and confirmed on January 26th 2017 – once identified, post was procedurally expressed to the panel and subsequently appointed.

4.3 As summarised above and substantiated by evidence supplied in appendices, all appointments from HBS 0982 panel were

4.4 As evidence in Appendix 2 illustrates, due to the volume of National Recruitment supported by HSE HBS Recruit, an average period of 8 months was experienced in 2017 in the filling of approved vacant CNM2 posts from panel. To risk manage patient delivery and safety, SUH advertised a temporary post to fill critical temporary immediate CNM2 vacancies.

At no time was the claimant or any member of the HBS0982 panel disadvantaged by this open transparent interim measure and neither were SUH actions in risk managing immediate service/patient need, a breach of the Code of Practice.

4.5 The CNM2 Bed Management post was substantiated to the claimant as requiring a different skill set and job specification of CNM2 job specification and HSE bespoke requirement campaign.

All eligible staff, including the claimant , were invited and welcome to apply for this post.

4.6 In light of the above, I request the Adjudicator to reject the claimant’s complaint.

Recommendation

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.]

Dated:   13th December 2018

Workplace Relations Commission Adjudication Officer: Emer O'Shea