Complainant

Respondent

Anonymised Parties

A Clinical Nurse Manager

A Health Service Provider

Representatives

 Irish Nurses and Midwives Organisation

 Employee Relations Manager

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00015498-001

01/11/2017

The complainant referred a dispute against the respondent to the Workplace relations Commission on the 1st of November 2017.   The complainant referred the dispute in respect of her transfer from a named general hospital to another named general hospital and a number of issues associated with that move.    

The complainant submits

She was transferred from General Hospital A (GHA) to General Hospital B (GHB) in 2008/2009 following a decision to transition General Hospital A from an acute facility to a step down/rehabilitation service and with its Emergency Services transitioning to a Minor Injuries Unit which resulted in a need for less staff at General Hospital A,

The respondent failed to allow the complainant to retain her entitlement to paid lunch breaks after her transfer from GHA to GHB,

The respondent failed to expedite the complainants return to GHA,

The complainant was a staff nurse in General Hospital A (GHA) and shortly after her move to General Hospital B (GHB) she was promoted to Clinical Nurse Manager Grade 1 (CNM1),

The respondent failed to remunerate the complainant for undertaking the role of CNM2 from May to November 2017 while the CNM2 position was vacant.

The respondent submits that

The transfer of staff from GHA to GHB was the subject of two conciliation conferences following which seven staff (including the complainant) who were subject to a transfer to GHB were granted a number of additional annual leave days as compensation for the extra time involved for those individuals who rotate/redeploy between GHA and GHB ,

Staff from GHA did not retain their entitlement to paid lunch breaks following the transfer to GHB,

The complainant did work as shift leader during the period of a vacancy at CNM2 and her entitlement to CNM2 acting up allowance for this period must be assessed in accordance with Circular 17/2013,

the complainant at the time of transfer was a staff nurse and she has since been promoted to CNM1 making it more difficult to facilitate her transfer back to GHA however the complainant has been offered a return to GHA at her new grade but the post available at that grade in GHA is a combination of two half posts,

the complainant has not accepted this offer and the respondent is currently awaiting her acceptance of this offer.

The complainant advised the hearing that she was transferred from General Hospital A (GHA) to General Hospital B (GHB) in 2008/2009 following a decision to transition General Hospital A from an acute facility to a step down rehabilitation service and with Emergency Services transitioning to a Minor Injuries unit which resulted in a need for less staff at General Hospital A.  It is submitted that transferred staff retained the option of expressing an interest in returning to GHA and that the complainant having expressed such interest was placed on a panel known as the TP3A Panel. The complainant was placed number 1 on that panel.

The complainant was a staff nurse in General Hospital A (GHA) and shortly after her move to General Hospital B (GHB) she was promoted to Clinical Nurse Manager Grade 1 (CNM1).

The complainant is seeking a transfer back to GHA in compliance with the HSE TP3A Transfer panel. The complainant told the hearing that she is number 1 on this panel which allows for her to be offered posts that become available to be offered to staff who rotated out of GHA when it was downgraded.

The complainant is seeking a return to GHA at her current grade with an ultimate reversion to a single post in an appropriate speciality.

The complainant after moving from GHA to GHB lost her GHA roster and her entitlement to paid lunch breaks and submits that others retained that entitlement. The complainant is seeking remuneration for this loss which she costs at €16,000 the equivalent of 2 ½ hours per week since her move in 2012. The complainant states that two other staff members who transferred to GHB retained this entitlement to paid lunch breaks and that she should be entitled to same.

The complainant submits that she also covered a vacant CNM2 post from May to November 2017 in the Emergency Department in GHB and she requests payment of €1400 for this.  

The respondent advised the hearing that staff who transferred to GHB and who retained an interest in returning to GHA were placed on a panel with a view to moving them back as soon as posts became available.   The respondent stated that the complainant at the time of transfer was a staff nurse and that she had since been promoted to CNM1 making it more difficult to facilitate her transfer back to GHA.   The respondent stated that notwithstanding her promotion to a different grade the respondent was willing to facilitate the complainants return to GHA at her new grade of CNM1. The respondent stated that the complainant has been offered a return to GHA at her new grade but that the post available at that grade in GHA is a combination of two half posts. The respondent stated that the complainant has not accepted this offer and that it is currently awaiting her acceptance of this offer.

The respondent told the hearing that the complainant had also been offered two other options to transfer back to A. The first offer was in respect of a Community role which the complainant accepted. Shortly after the move the complainant advised of her dislike of the role and sought a return to GHB. She was facilitated with this move back to GHB and her resignation was rescinded.   The complainant was also offered a transfer back to the stepdown/rehabilitation unit in GHA but she refused this as it would mean she would have to participate in the agreed night duty rota in this unit.

The respondent advised the hearing that only one staff member retained the entitlement to paid lunch breaks in GHB and that this was a result of a cross site commitment.   The respondent advised the hearing that the issue of the transfer from GHA to GHB had been the subject of two conciliation conferences at the time and that the staff involved received a number of additional annual leave days in compensation for the move. The respondent stated that the issue of the loss of paid lunch breaks is an issue with collective implications and could potentially affect 140 staff who were moved from GHA at that time. The respondent stated that any decision in relation to such issue would affect all groups of staff and not just the complainant.   The complainant at the hearing stated that she was not paid for her lunch breaks but that she was aware of two other staff members who were paid for lunch breaks since moving to GHB. The complainant at the hearing acknowledged that the first person was the individual named by the respondent as having had a cross site commitment.   The complainant at the hearing also named the second person whom she understood to be in receipt of paid lunch breaks following the move to GHB. The respondent disputed this but undertook to investigate the matter. The respondent in correspondence post hearing submitted that it had examined this allegation and had clarified the matter with the Director of Nursing who confirmed that the second named individual was not in fact in receipt of paid lunch breaks and that the situation regarding paid lunch breaks was confined to one person with a cross site commitment   as the respondent had stated at the hearing.

As regards the CNM2 acting up issue the respondent advised the hearing that the complainant was only entitled to receive the acting up allowance if she had been acting up in a permanent capacity for a period in excess of three months and that this is in accordance with the Circular 17/2013. The respondent advised the hearing that it would have no problem paying the complainant the CNM2 acting up allowance if she was entitled to same and undertook to examine whether the complainant was entitled to this allowance for the relevant period. The respondent in correspondence post hearing notified the WRC that it had examined the rosters for the relevant period and that the rosters indicated that the complainant had worked 77 rosters during the period and had taken the role of shift leader during 38 of those shifts but had not taken the shift leader role for the other 39 shifts.   The respondent submits that she did take on the shift leader role for some of the time but as she was not continuous in that role she was not entitled to the acting up allowance.   The respondent provided details of these shifts and a breakdown of when the complainant was in charge and was not in charge.  

The complainant in this case has sought recommendations in respect of three issues as follows:

An entitlement to retain paid lunch breaks following her move to GHB as she submits is retained by two other staff members,

Remuneration for acting up in a vacant CNM2 post in 2017,

A commitment that she will be facilitated with a return to GHA at her current grade with an ultimate reversion to a single post,

In respect of the first issue regarding paid lunch breaks the respondent has clarified that paid breaks were only retained by one staff member as part of a cross site commitment and that the other 140 staff who transferred out did not retain an entitlement to paid lunch breaks.   I am satisfied that this is an issue which has the potential to affect 140 staff and in such circumstances that it should more appropriately be dealt with as a collective issue.   Accordingly, I do not recommend in favour of the complainant in respect of this matter.  

In respect of the CNM2 acting up issue, I am satisfied that the respondent has examined the rosters and the issue of the complainants entitlement to the acting up allowance in accordance with Circular 17/2013 and has concluded that she was not entitled to the allowance in accordance with Circular 17/2013. Accordingly, I do not recommend in favour of the complainant in respect of this matter.  

As regards the claimants request for a commitment from the respondent to facilitate her return to GHA at her current grade I note that the complainant has been promoted to CNM1 since her transfer and that the respondent has continued to endeavour to facilitate her return to GHA albeit now at a different grade to the position she was transferred from.   I also note that the respondent has offered the complainant a return to GHA at her current grade but in two .5 posts and that the complainant has not responded to this offer.     I am of the view that the complainant should consider this offer as a means of returning to GHA and revert to the respondent in respect of the offer. Accordingly, I do not recommend in favour of the complainant in respect of this matter.  

Having given the issues a great deal of consideration, I do not recommend in favour of the complainant in respect of the matters herein.