ADJUDICATION OFFICER RECOMMENDATION & DECISION
Adjudication Reference: ADJ-00028882
Parties:
| Complainant | Respondent |
Anonymised Parties | Administrator | Nursing Home |
Representatives | none | HRM |
Complaints:
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-00038509-001 | 03/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00038509-002 | 03/07/2020 |
Date of Adjudication Hearing: 18/01/2021
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 13 of the Industrial Relations Acts 1969 following the referral of the complaint and dispute to me by the Director General, I inquired into the complaint and dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint and dispute.
Background:
The Complainant is employed as an Administrator since 19th May 2014. She is paid €12.98 per hour for 30 hours per week. Under the Industrial Relations Act she has claimed that she was given enhanced duties on a permanent basis with an increase in hours to 35 hours per week and an increase in her hourly rate of €5 per hour. She claims that the Employer removed this position from her after six months. The Employer has rejected this claim and stated that this was a short-term project. Under the Payment of Wages Act she has claimed for the reduction in pay when her enhanced position was removed. |
1) Industrial Relations Act CA 38509-001
Summary of Employee’s Case:
This is a summery to support the claim of unfair termination of appointed position of
Clerical Manager. On 7th September 2019 the Director of Nursing (DON) and the Assistant Director of Nursing (ADON) asked her to a meeting as they had a proposition for her. She was informed at this meeting that the ADON had resigned her position and was reverting back to previous role as R.G.N.
The DON asked if she would take over all of the ADON’s administration duties which included overseeing the staffing of the Nursing Home, she requested a €5hrly pay rise and 5hrs extra to accommodate the extra work, the DON then said subject to the Board of Trustees approval the position / promotion would be appointed to her, an Email was drafted to the Employer’s Representative with this information. They met on 13th September, she was invited to join them on its conclusion where the Employer’s Representative shook her hand and formally offered her the position of Clerical Manager to include extra hours and the pay increase with a commencement date of 1st October 2019. Atno time during these two meetings was the position titled a 6-month project.
This came to light when her Administration Colleague employed in Payroll/Accounts began interfering daily for the first week to the point of deactivating the password she was allocated for training purpose and stating “only an elite group of people should have access she was the Administrator of the TMS not ADON. She could not view the staff rotas therefor her training was compromised. She wrote a letter to the Employer’s Representative asking that she have a word with the colleague she received no response to this letter and what started as interference became much bigger. She began to document any incidence with the colleague. In the course of the first month it was a daily occurrence she had been Bullied, Humiliated, Threatened, Harassed and Cursed at by that colleague I sent all my letters to the Employer’s Representative but got no reply. The Employer’s Representative who resides in Dublin came to the Nursing Home late Oct and informed her that my position has now become a 6 month project and all duties would be given to a new Director of Care who was due to commence employment on 1st April stating realistically she was only helping out the Director of Nursing at a difficult time, she did not accept this and stated this is in retaliation of my letters of complaint about her colleague that she had been formally appointed Clerical Manager by herself following the ADON’s resignation with the gesture of a handshake while waiting contract. Her colleague and the Employer’s Representative are commonly known to be close friends, the colleague is of equal grade to her but earns an average of €200 more per week - she does not consider this to be Fairness and Equality in the work place. Her request for a pay increase over the years have always been declined. Employer’s Representative didn’t agree.
The behaviour from her colleague continued for the next 5 months she felt there was no point contacting the Employer’s Representative and her password was never reactivated she had to seek help viewing the staff rotas with the DON, ADON and the Site Manager then her colleague accused her of breech G.D.P.R. She spoke to the DON on one occasion as things were getting so bad. The DON put her head in her hands with frustration and said “What can I do She has the Employer’s Representative on speed dial her hands are tied”. 14th Feb 2020 a meeting was arranged by the Employer’s Representative and the Nursing Home Administrator to resolve the issues, she asked
Administrator would she accompany her to take notes. She met first and discussed her grievance with the Employer’s Representative for lack of managerial support with the bullying
and interference and allowing the colleague to deactivate her password for 5 months to date, she informed her that this was a form of Power Harassment stating she gave her a job to do but both herself and the colleague have made it impossible for her to do it. She has been working 7 days a week and out of hours for a position she was given 5 hours to complete. The Employer’s Representative asked her to immediately to retract this statement, but she told her she couldn’t as she based this allegation on extracts from the staff hand book. The colleague had meeting same afternoon. On Monday 17th Feb the DON asked her to the office, she had discussed the outcome of the meeting with both on Saturday 15th and she was told she would have no further interference from the colleague and her password would be reactivated with immediate effect, her response was “I’m glad it’s finally over”.
Unfortunately, the colleague did not come to work and remained out for a further 3 weeks Sick. On her return she greeted me with a very joyful” Good Morning Liz” I did think this was a bit strange giving the previous 5 months and told the DON something’s wrong, the DON said you’re just paranoid. Before the end of that week the Employer’s Representative sent an email to the DON with instructions “Tell the Employee her position as Clerical Manager will cease as of the end of March 2020. She told the DON “do you still think I’m paranoid”, both the colleague and the Employer’s Representative have been plotting this for these past 3 weeks. She emailed the Employer’s Representative and asked that she not do anything until she sought legal advice but got no reply, her position and increased salary was terminated at the end of March. It is her opinion that the Employer’s Representative recanted on decisions made from the meeting, so she requested a copy of notes taken on 21st Feb - 17thJune & 25th June. She received same on 7thJuly from the notetaker The minutes were not correct practically nothing she discussed was documented i.e. Power Harassment, she arranged to discuss this with the notetaker and she was ushered in to Hairdressing Salon in Nursing Home the note taker turned her back to her and said this has nothing to do with her this is what the Employer’s Representative has sent down she requested they be returned as not correct. The Employer’s Representative was not taking notes at the meeting she asked the note-taker giving she was in the meeting at her request would she give her handwritten notes as they would be true and correct, to date she has never received them. The colleague and her don’t work in the same building, she is based in the Convent the Employee is in the Nursing Home two completely separate buildings. She stayed away hasn’t been to her office for 15 months. She doesn’t engage in conversation when she comes to the Nursing Home they have done everything to keep the peace but on the 28th September 2019 while she was dropping stationary to Nursing Home demanded over and over that she thank her for this gesture while she didn’t engage she got so angry she felt she was going to hit her and she had to remove herself from her desk to a safe distance.
She reported this as a serious threat of potential violence and if not addressed she would have no option but to involve the authority’s with regard to a restraining order. The Employer’s Representative still insists this is between the colleague and herself. Mediation was arranged and took place 21st December 2019.
In Conclusion she has now observed since the arrival of a new Director of Nursing / Person in Charge on 1stApril 2019:
- The former ADON has been appointed C.N.M. and has taken back most of the duties she resigned from and is allocated regular if not weekly Administration days for this.
- The colleague now signs off her documents and emails as the Financial Administrator
- She has copies of dozens of text messages were the nurses are contacting staff to fill shifts.
All duties have notbeen allocated to the Director of Nursing on observation the staff nurses
are fulfilling a large percentage of the duties that were taken from her.
She believes she was recognized for this position because of her 30 years’ experience in Medical
Administration and her unquestionable time keeping and zero sick leave with this company.
It is her firm belief that the position was taken from her because the Employer’s Representative’s friend the colleague was angry and jealous that she was awarded a Managerial Role. She is requesting that her position be reinstated with retrospective remuneration.
Summary of Employer’s Case:
The Management and Trustees of the Nursing Home contend that the above complaints are invalid and without substance. The Employee was not promoted to a new role and the position was not removed from her. The temporary role no longer exists for reasons that will be furnished and therefore there will be no re-instatement as suggested. The Employee commenced employment on 19/05/2014 as a part time Medical Clerk. The Employer found itself in a very difficult situation during 2019. The Person in Charge (PIC) had declining health and an increasing workload fell to the Assistant PIC (a Senior Staff Nurse with nursing duties). She resigned from the role of Assistant PIC in October 2019. It was evident that the PIC herself could not continue indefinitely and that it could take months to recruit a replacement PIC. They also knew that a new PIC, when recruited, would take on the full duties of the role. Meanwhile, the PIC in situ needed support as soon as possible. The Employer decided as a stop gap solution to ask the Employee if she would be willing to take on some extra tasks, like ensuring that there was adequate staff on the floor at all times. The Employer Representative sought permission from the Board of Trustees for this unusual arrangement in support of the PIC. The Employee told management that she could combine the extra tasks with her role as Medical Clerk if she were given five extra hours per week, plus an increase in wages of €5 per hour for all her working hours. This led to an increase of 40% in her salary. The trustees were not happy with being ‘over a barrel’ but they agreed only on the basis that it would be for a period of six months which would be reviewed in accordance with the circumstances and needs of the Nursing Home at that time. The Employee made a claim that an interview took place and that the Employer Representative was present at the time. This is not correct. The details of what actually happened were as follows; The Employee did not have an interview under our recruitment and selection procedures. The Employer Representative attended a Management Meeting on 16th September 2019. At this meeting the additional hours and wages in the transfer of duties to the Employee were discussed. She was then invited to join the meeting in order to agree the terms regarding hours and new salary and that the extra duties would be for a period of six months, after which it would be reviewed. The PIC informed her that she would be called ‘Clerical Manager’ rather than Medical Clerk because she could foresee a difficulty she may have when phoning staff to organise their off duty. This temporary solution, of course, was for the duration of the temporary appointment. She is and was very aware that the duties involved belonged properly to the PIC or Assistant PIC in her absence. The duties are in the Job Description of the PIC. On 27th September 2019 the Employer Representative spoke on the ‘phone with her (the PIC was in hospital) and asked her to begin her extended duties as of 30th September. She informed her that the Financial Administrator had been informed of the hourly rate and extended hours but that she would delay forwarding the letter confirming everything until the PIC had had a chance to view it. The Employee asked if there was something in the letter she should know about. She was told there was not – it listed the extended duties and that it was a project for six months, open to review and designed to fill a particular need in the Nursing Home. The Employee said that this was not her understanding - she understood that the six months would be probationary leading to a permanent role’. The Employer Respondent assured her that this was not the case – that the role was a project to fulfil a particular need and that she was not on probation to fill a permanent role. The Employer Representative was quite taken aback by the Employee’s remarks, knowing what information she had received on the day of the meeting with the Management Team. She again approached the then PIC, to clarify that the Employee was given correct information regarding these temporary tasks the Employer’s Representative had earlier asked the PIC to ensure that the tasks associated with her permanent role as Medical Clerk be kept separate from the temporary role of Clerical Manager. She commenced her new temporary role on Monday, 30th September 2019 and on Friday, 4th October 2019 the 5th day into her role, she sent an email to the Leader, complaining about passwords and two staff members. This was totally inappropriate for an employee to do and the matter rightly needed to be dealt with by the management. It was also addressed to and passed on to the Employer’ Representative. This was a matter for local management and not for the Leader, nor for the Trustees of the Home. The Employee had clearly no understanding of boundaries and what was not appropriate behaviour. A meeting was held on 8th October 2019 which was attended by the Employer’s Representative, the Employee and the Asst. PIC. There had been misunderstandings and conflict between the Employee and another member of staff, since she had taken on the temporary role. The Employer’s Representative stated to the Employee that this was the first meeting held since her new six month programme had commenced. A meeting was held on 14th February 2020. It was attended by a Trustee of the Nursing Home, the Administrator and the Employer’s Representative. It was very disappointing for the Trustees and Management that from the very start of this temporary arrangement, conflict had broken out between them. The Disciplinary Procedure was not instigated because it was felt that the two staff members had teething problems with the temporary arrangement. Grievances had been raised on both sides and informal meetings were held with each party. At the meeting with the Employee on 14th February the conflict above was discussed and also she was asked about training for the new role. The Employer’s Representative stated that no formal training was given because the role was seen as a temporary one helping the PIC, who while in ill health, was able to guide her. Without going into the details of the conflict, the Trustees were most disappointed with the behaviour displayed by her, especially due to the fact that she had commenced a temporary role and management felt that she was being very well compensated for doing this work. This is not to deny that she was upset by the conflict with her colleague. On 2nd March 2020, the Employer’s Representative wrote to the then PIC asking her to inform the Employee that she would be expected to return to her permanent position as Medical Clerk, taking on the job description, hours and salary of that role as and from 30th March 2020. The temporary role of Clerical Manager had ceased to exist as of 28th March 2020 – which was the six-month period. The new PIC commenced her duties on 30th March 2020. However, the Employee did not agree that the role should cease and was set on a mission to try to convince management that she had been put into a permanent role and because the new PIC was now appointed, the PIC had taken over her role. Nothing could have been further from the truth. The role, as stated above rightly belongs to the PIC and is on her Job Description. On 16th April 2020, the Employer’s Representative received the following email from her Date: Thu, 16 Apr 2020 at 10:25 Subject: Telephone Calls To: Employer’s Representative Dear I appreciate this is a difficult time for everyone with Covid 19 and the difficulties it brings and the uncertain future. My apologies for current circumstances between us. If you could please email me the reason or purpose of your two phone calls yesterday* and I do hope it can be resolved sooner rather than post Covid 19 as you stated it could get very expensive but please be aware I have substantial funds set aside to continue this grievance which includes back dating my increased salary as of 1st April pending the outcome. There was a little confusion with your suggestion regarding the assistance of a facilitator please note I am willing to assist anywhere possible as this is not a pleasant time for anyone. King Regards
The purpose of the first phone call was to offer facilitation to help resolve the conflict between the colleagues. The second phone call was to say that the Employer’s Representative had forgotten to mention in the first call, that the offer would be ‘without prejudice’. The Employee was letting the management know that she had substantial funds set aside to fight them and that her grievance would be backdated to 1st April 2020. She had absolutely no regard for what she had been told and was proceeding with her case. On 3rd July 2020, the Employer’s Representative received a solicitor’s letter on behalf of the Employee with the same insinuations and determinations. She obviously felt by threatening the law, that management would jump to her demands. These claims are rejected. |
Findings and Conclusions:
I note that the Employee has introduced allegations of bullying and harassment. The claim before this hearing concerns the claim that the Employer has wrongly removed the enhanced position and remuneration without agreement. Therefore, that is the claim to be addressed here. I find that following the stepping down of the ADON, the Employee was offered and accepted to undertake additional administrative duties with an increase in her hours of work and pay. |
I find that this change was not confirmed in writing.
The Terms of Employment (Information) Act Sec 5 requires an employer to confirm in writing, no later than one month after the change, the details of that change.
I find that had the Employer done so, then this dispute would not have arisen.
I note the conflicting positions of both sides.
I find that there was an unwillingness to properly engage with each other on this matter.
The Employee stated that she wrote to the Employer’s Representative on five or six times and got no response, that she requested minutes of meetings and did not get them.
I note that the Employer kept stating that the Employee knew that this enhanced position was temporary and said so conveying an attitude of why she can’t grasp that.
I find that the Employee is genuine when she stated that this position was permanent.
I equally find that the Employer is adamant that the position was temporary.
But I find that the responsibility lay with the Employer to have confirmed this in writing but the failed to do so and so they have created this dispute.
I find that there was reference to a meeting of the Trustees to discuss the Employee’s request for increased hours of work and increased pay. These minutes were requested by the Adjudication Officer and were supplied after the hearing and they clearly show that the increase in hours and pay was approved but more importantly these minutes clearly show that the Trustees approved this as a temporary position to begin with.
I find that had the Employer copied the Employee with these minutes then it may well have headed-off this dispute.
I find that these minutes confirm that the Employer envisioned that this change was a temporary one to begin with
So, I find that this position was temporary, not permanent as alleged by the Employee.
I find that the Employer had a right to discontinue its operation after the initial six-month.
However, I find that the Employer has contributed to this dispute by their failure to confirm it in writing and in their rather heavy-handed manner in which they dealt with the Employee, which has caused her unnecessary grief.
Recommendation:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I recommend that the Employee accepts that the enhanced position offered was on a temporary basis only.
I recommend that the Employee accepts that the Employer had a right to discontinue the arrangement after the six-month had concluded.
I recommend that the Employer pays the Employee €2,500 for the mishandling of the communication and their failure to properly handle this dispute. This should be paid to the Employee within six weeks of the date below.
2) Payment of Wages Act CA 38509-002Summary of Complainant’s Case:
Summary of Respondent’s Case:
Findings and Conclusions:
Decision:Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. For the above stated reasons, I have decided that this claim is not well founded and so it fails. |
Dated: 24th February 2021
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Key Words:
A disputed work arrangement leading to allegation of Illegal deduction from wages |