ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00025428

Parties:

Complaint(s):

Date of Adjudication Hearing: 18/02/2020

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Procedure:

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

Summary of Complainants Position

The complainant is seeking that her implied terms and conditions are not altered going forward as a result of their member making a complaint.

The complainant is seeking reinstatement of sick leave record for the period of 1st May 2018 to the 3rd November 2019.

The Complainant is also seeking redress in the form of compensation of €25,000 for the actions taken by respondent outside of the agreed process.

The victimisation and punitive behaviour by the respondent has had a significant impact on complainant’s health both personally and professionally and financially.

The complaint was appointed as a Staff Nurse by the respondent on 29th of May 2005.

The complainant’s terms and conditions of employment are as set out in the contract associated with the complainant who has worked in the number of areas on night duty and only allocated to wards and nursing bank over the past 15 years. The complainant is graded as a senior staff nurse and is seen as a very experienced staff member.

On the night of 16 February 2019, complainant expressed concerns on behalf of the nursing staff on duty regarding staffing levels to the supervisors on duty for the night of the 16th and over the previous period.

Complainant felt the preferential treatment in terms of resources was often given to the other wards and other areas on night duty.

The complainant was called to a meeting on the 19th February 2019 where she (complainant) was removed from night duty.

The union submitted that the respondent altered the complainant’s the custom and practice of working night duty which she (complainant) has done for 14 years.

The union argues that the complaint has established the practice for a significant period; however, the respondent took an opportunity outside of this process or procedure to alter this practice.

The complainant was entitled to make a complaint to line management regarding concerns she had in February 2019.

The complainant has the right to voice these concerns in the knowledge that whether or not the complaint is upheld, that she will not be penalised when the complaint is made in good faith.

The union seeks that the adjudicator examines the example set out by the respondent in this case and the negative impact it has had on the complainant and that the culture that is perceived for all employees if the matter is not addressed in full.

The Union are seeking that the complainant’s terms of employment are not altered, and the complainant continues to work night duty, with the exception from mandatory study days

The Union seeks that the adjudicator finds in favour of the redress sought by the complainant

Respondent’s position.

Respondent refutes the allegations contained in the union’s submission and sets out the position as follows.

The complainant subsequently qualified for the national and position of senior staff nurse and remains working as a valued member of the nursing team in respondent’s hospital.

The complainant has varied her weekly working hours through the various flexible working time arrangements, both statutory by way of concession in line with terms and conditions of her employment with the respondent.

The complainant’s weekly contracted hours are currently 37.77 hours per week and she also avail of 6 hours Parental leave per week.

In 16 February 2019, the respondent received a complaint from (2) Nurse Management on night duty wherein the complainant was reported to have made a remark to a one of the Nurse Managers in the company of staff members on night duty in Wars 2B.

The incident was reported to have occurred during night duty on the 16th February 20-19 and appears to relate to engagements which took place on that night in respect to an internal temporary reassignment between   wards 2(A) and 2(B) at the request of the clinical nurse manager (CNM 3) to ensure that there was adequate nurse staffing available across both wards

During the meeting of the 19th of February2019, the complainant confirmed that she had made the comment about other staff member and advised that at the time of making the comment she was “much stressed” and that she was the Senior Staff Nurse on duty in the Ward and was responsible for the nursing care being provided to patients with complex care needs on the Ward on the night concerned.

The Complainant apologised to Other Staff Member for her comments.

It was the respondent position that they wished to resolve this matter through this informal engagement process and were satisfied that the matter would not be required to be progressed to the formal disciplinary procedure.

It was recommended that the complainant rotate to day duty (as well as night duty) during which she would also have support of a larger nursing team on duty, in addition to access to the Clinical Nurse Manager 2(CNM2) who was available on the Ward on day duty.

In arranging the roster to accommodate the Complainant working on the day duty and night duty, CNM2 contacted the complainant by phone on the 21st February 2019. It was reported that the complainant requested for no change to be made to her duty for a period of one month to allow her finalise child care arrangements.

On the 22nd February 2019 during a meeting it was alleged that the Complainant was not in agreement with the respondent for the change to her night duty roster and that she was seeking counselling.

The complainant commenced a period of long-term sick leave from the 1st May 2019 until the 3rd November 2019 and received access to the nationally agreed sick Leave scheme during the period, in line with her terms and conditions of employment.

The respondent submitted that the trade union is fully aware of the process where members wish to raise matters of concern.

Following a number of meetings, the respondent put forward options to the trade union for the purposes of resolving this matter on an internal basis and without recourse to the third-party industrial relations processes, in full and final settlement of the matter, without prejudice and without precedent basis.

Findings

Both parties made written and verbal submissions at the hearing

I find I cannot support the Trade Union claim for compensation and or any amendment to the nationally agreed sick leave scheme

I find that there are well established practices and procedures in the workplace to resolve grievances and issues that may arise in the workplace.

I find that the complainant has circumstances that require her to work night duty and I find that the respondent has accommodated this situation in the past.

I find that the parties are willing to try and resolve this matter and, on that basis, I am making the following

Recommendation

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

This recommendation is in full and final settlement of this issue and without precedent and cannot be used in any future circumstances that may arise between the parties.

It is recommended that option 1 as proposed by the Respondent would be amended as follows: -

The Complainant may continue to work night duty on the Night Duty Bank within the Hospital and will therefore be assigned to work across the Hospital rather than to one specific ward only and will be required to be rostered for day duty to attend mandatory training. This will be subject to a review between the parties after a maximum period of four [4] years rather than the two [2] year period proposed by the Respondent and it may well be determined at that stage that the Complainant is to be rostered across day and night duty as per the normal roster for Nursing Grades within the Hospital.

Dated: 23rd June 2020

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Key Words: